Reeder v. Dormire

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Report and Recommendation # 20 is SUSTAINED, ADOPTED AND INCORPORATED herein, except to the extent the Magistrate Judge considered whether Reeders petition was timely filed. IT IS FURTHER ORDERED t hat Ronnie Reeders Motion under 28 U.S.C. § 2254 to Vacate, Set Aside, or Correct Sentence # 1 is DENIED. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealabilitybecause Reeder has not made a substantial showing of the denial of a federal constitutional right.A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 9/5/2012. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RONNIE REEDER,

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Petitioner,
v.
DAVE DORMIRE,
Respondent.

No. 4:09 CV 1627 RWS

MEMORANDUM AND ORDER
This matter is before me on a Report and Recommendation that I deny Petitioner Ronnie
Reeder’s writ of habeas corpus under 28 U.S.C. § 2254. I referred this matter to United States
Magistrate Judge Mary Ann L. Medler for a report and recommendation on all dispositive
matters pursuant to 28 U.S.C. § 636(b). Magistrate Judge Medler filed a Report and
Recommendation that Reeder’s habeas petition should be denied. Reeder raises five objections
to the Report and Recommendation [#22]. I have conduced a de novo review of all matters
relevant to the petition and address each objection below.
Objection 1-Timeliness of Reeder’s Petition
Petitioner argues that the Magistrate Judge improperly recommended that his Section
2254 petition was untimely. 28 U.S.C. § 2244(d)(1) establishes a 1-year limitation period on
petitions filed under Section 2254. The limitations period of Section 2244(d)(1) runs from the
latest of:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
Section 2244(d)(1).
Subsection (A) determines the timeliness of Reeder’s petitioner. Petitioner filed a direct
appeal to the Missouri Court of Appeals and the appellate court affirmed his conviction on June
28, 2005. On August 19, 2005, the Missouri appellate court granted Petitioner’s motion to
transfer to the Missouri Supreme Court. On December 20, 2005, the Missouri Supreme Court
transferred Petitioner’s appeal back to the Missouri appellate court. On February 15, 2006, the
Missouri appellate court reinstated its original opinion and issued the mandate on February 23,
2006. Petitioner did not file another motion to transfer to the Missouri Supreme Court.
The Supreme Court of the United States recently held that
The text of § 2244(d)(1)(A), which marks finality as of ‘the
conclusion of direct review or the expiration of the time for
seeking such review,’ consists of two prongs. Each prong—the
‘conclusion of direct review’ and the ‘expiration of the time for
seeking such review’—relates to a distinct category of petitioners.
For petitioners who pursue direct review all the way to this Court,
the judgment becomes final at the ‘conclusion of direct
review’—when this Court affirms a conviction on the merits or
denies a petition for certiorari. For all other petitioners, the
judgment becomes final at the ‘expiration of the time for seeking
such review’—when the time for pursuing direct review in this
Court, or in state court, expires.
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Gonzalez v. Thaler, 132 S.Ct. 641, 653-54 (2012). Here, Reeder falls into the second category
and his judgment became final “when the time for pursuing direct review in [the Supreme Court
of the United States], or in state court, expires.” Id.
Though Missouri Rules of Appellate Procedure do not directly address whether Petitioner
could have filed another motion to transfer, it appears he could not. Where a case is transferred
from the Missouri Supreme Court to the appellate court, “the case is in the same posture as if
transfer had been denied. The Court of Appeals then, by order, reinstates its prior opinion, which
is final. No motions for rehearing or applications for transfer may be filed.” 25 Mo. Prac.
Section 10.2. Upon the Missouri Supreme Court transferring Reeder’s case back to the Missouri
appellate court, the procedural posture of Reeder’s direct appeal was as if the Missouri Supreme
Court denied transfer. However, because the Missouri appellate court’s initial opinion had been
vacated when it transferred the case to the Missouri Supreme Court, it was only upon the
Missouri appellate court re-entering its opinion on February 15, 2006 that the state level review
of Reeder’s direct appeal became final. As a result, Reeder could not have filed a second motion
to transfer to the Missouri Supreme Court and he fully pursued his direct review in state court.1
Therefore, Reeder’s petition became final at the expiration of the time for him to seek direct
review in the United States Supreme Court.2

1

The parties have not identified, and my research has not revealed, a specific rule of
Missouri Appellate Procedure squarely addressing this issue. Petitioner attached a letter from the
Clerk of the Court for the Missouri Court of Appeals, Eastern Division, as an Exhibit to his
Objection, indicating that under the circumstances of this case, a successive application for
transfer filed by counsel would not be filed. I find this, in conjunction with the analysis
presented in the Missouri Practice series, persuasive.
2

Respondent unpersuasively argues that Petitioner had ninety days from the date the
Missouri Supreme Court transferred the case to the Missouri appellate court. Upon the transfer
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The Magistrate Judge recommended that the one-year statute of limitations began to run
on March 2, 2006, fifteen days after the Missouri appellate court issued a final decision on
Petitioner’s direct appeal. This recommendation is presumably based upon Missouri Rule of
Civil Procedure 83.02 that an application for transfer to the Missouri Supreme Court must be
filed within fifteen days from the date on which the Missouri appellate court reinstated its
opinion. However, as discussed above, Petitioner could not have filed a second application for
transfer after the Missouri Supreme Court transferred the appeal back to the Missouri appellate
court.
Under United States Supreme Court Rule 13, a petition for writ of certiorari to review a
judgment entered by a state court of last resort is timely when it is filed with the Clerk of this
Court within 90 days after entry of the judgment. Rule 13 goes on to indicate that “[a] petition for
a writ of certiorari seeking review of a judgment of a lower state court that is subject to
discretionary review by the state court of last resort is timely when it is filed with the Clerk
within 90 days after entry of the order denying discretionary review.” Taking these provisions
together, I find that the time for Petitioner to file a writ of certiorari to review his direct appeal
commenced on February 15, 2006, the date the Missouri appellate court reinstated its original
opinion affirming Reeder’s conviction.
Having determined when Reeder’s state review of his direct appeal became final, I must
now determine when Reeder’s judgment became final under Section 2244(d)(1)(A). Because
Reeder fully pursued his direct appeal in state court, his judgment became final when the time for

of Petitioner’s appeal by the Court of Appeals under Rule 83.02, the opinion of the Court of
Appeals was vacated.
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him to pursue direct review in the Supreme Court of United States expired. Under Supreme
Court Rule 13, the deadline for Reeder to file a petition for a writ of certiorari from his direct
appeal expired on May 16, 2006, ninety days from February 15, 2006. However, Reeder filed a
motion for post conviction relief on May 15, 2006. As a result, the Section 2244 1-year statute of
limitations was tolled continuously from the Missouri appellate court re-entering its opinion on
February 15, 2006, until the conclusion of Reeder’s post-conviction proceedings on October 6,
2008, with the issuance of the mandate on the appeal of his post conviction relief motion. The
statute ran for 353 days from October 6, 2008 until Reeder filed his Section 2254 petition on
September 25, 2009. As a result, I decline to adopt the Magistrate Judge’s recommendation
regarding the timeliness of Reeder’s Section 2254 petition and find that Reeder’s petition was
timely filed.
Objection 2: Restriction of Victims’ Prior Allegations
Reeder’s first ground for habeas relief alleges that the trial court erred in restricting his
use of the victims’ prior false allegations. He argues that the trial court violated his Sixth
Amendment confrontation right and his right to due process by prohibiting his attorney from
cross-examining the victims as to all prior false allegations. Petitioner objects to the Magistrate
Judge’s recommendation, arguing the claim is cognizable under United States Supreme Court
precedent and that Ground 1 should be reviewed under a de novo standard of review.
First, I find that the trial court’s evidentiary ruling did not violate Reeder’s confrontation
right. “[W]hile the Confrontation Clause generally ‘guarantees a defendant’s right to
cross-examine witnesses ...’ the right to cross-examine a witness is not without limitation....”
United States v. Ragland, 555 F.3d 706, 712 (8th Cir. 2009). The Confrontation Clause
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“guarantees an opportunity for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.” U.S. v. Cowling, 648 F.3d
690, 697 (8th Cir. 2011) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).
The trial court ruled that Reeder’s counsel could not introduce extrinsic evidence of the
victims’ prior, non-sexual false allegations against family and friends. The trial court allowed
questioning regarding such allegations, but would not allow counsel to introduce extrinsic the
allegations. The trial court allowed Reeder’s attorney to cross-examine the victims regarding
prior allegations of sexual misconduct. For example, during Reeder’s attorney’s crossexamination of T.W., he inquired whether she had ever called the police or the Department of
Family Services on her mother and whether she accused Messiah Cross of having raped her. T.W.
answer no to each of the questions. During his cross-examination of L.W., Reeder’s counsel
inquired whether she had made allegations against men in the past. Counsel then asked L.W. to
confirm that she had never accused any other men of having improper sexual contact and she
indicated she had accused her mother’s ex-husband.
Defendant then called Tine Marie Pulley, the mother of T.W. to testify. Ms. Pulley
testified that her daughter had falsely accused her of things in the past, including to Children and
Family Services. Ms. Pulley further testified that her daughter accused her ex-boyfriend of rape.
Ms. Pulley went on to testify that she used Reeder to “run off [T.W.’s] boyfriends” everyday in
order to get them “out from in front of the house and make the girls come in.” When asked how
the girls reacted to Reeder running the boys off, Ms. Pulley testified “They got mad. They’d lie on
him all the time.” She further testified that T.W. had lied to her about important things in the
past, that T.W. and L.W. accused another of Pulley’s ex-boyfriends of rape. Ms. Pulley further
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indicated that after the accusation was asserted against the ex-boyfriend, she “kicked him out” and
then T.W. admitted the truth to her.
Ms. Pulley went on to testify that the girls also accused T.W.’s aunt’s ex-husband of rape.
Ms. Pulley testified further that the girls later told her they made up the allegation. Ms. Pulley
testified that “ [the aunt’s ex-husband] was also strict and wouldn’t let [the girls] outside around
any boys in the neighborhood or anything, so they didn’t get along very well.” Ms. Pulley then
testified that T.W. accused a husband of Ms. Pulley of raping her. Ms. Pulley “kicked [her
husband] out” and T.W. later told Ms. Pulley her accusation was false. She indicated that her
husband would not return to the house because he did not trust the girls because “they accused so
many others.” Next, Ms. Pulley testified T.W. accused her sister’s ex-boyfriend of rape. Ms.
Pulley testified that each of the men accused of rape lived with Ms. Pulley or her sister at the time
of the accusation and T.W. and L.W.’s accusations would precipitate the men leaving.
Ms. Pulley’s significant testimony, in conjunction with the scope of cross-examination of
each victim, provided Reeder with sufficient opportunity to confront his accusers and present
character evidence. As a result, I find that Reeder’s confirmation clause rights were not violated.
Second, I find the trial court’s restrictions did not deprive Reeder of due process. The trial
court’s evidentiary rulings were a matter of state law, which is generally not cognizable in a §
2254 proceeding. Scott v. Jones, 915 F.2d 1188, 1190-91 (8th Cir. 1990). Evidentiary rulings
under state law are only cognizable in federal habeas petitions where they “implicate federal
constitutional rights.” Evans v. Luebbers, 371 F.3d 438, 443 (8th Cir. 2004).
The Missouri appellate court considered whether State v. Long, 140 S.W.3d 27 (Mo. banc
2004), should apply retroactively to Reeder’s case. Long held that excluding a witness’s prior
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false allegations was prejudicial to the defendant where witness credibility was a key factor in
determining guilt or innocence. State v. Reeder, 182 S.W.3d 569, 575-76 (Mo. Ct. App. E.D.
2005). However, the Missouri appellate court determined that the Long ruling was procedural,
not substantive, and so should not apply retroactively. Id. Rulings on retroactivity of a change in
state law do not implicate due process or other federal constitutional rights. Am. Trucking
Ass’ns., Inc. v. Smith, 496 U.S. 167, 177 (1990) (“When questions of state law are at issue, state
courts generally have the authority to determine the retroactivity of their own decisions.”). As a
result, Reeder’s claimed due process violation is not cognizable under federal habeas review.
Even if Reeder’s due process claim was cognizable under federal habeas review, the
AEDPA standard of review would apply. See 28 U.S.C. § 2254(d) (2006). Reeder argues that the
Missouri appellate court did not address his constitutional claims regarding cross-examination,
and I must apply de novo review. See Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007).
However, the AEDPA standard may apply even where a state court focuses primarily on state-law
evidentiary questions. Brown v. Luebbers, 371 F.3d 458, 462 (8th Cir. 2004). The “‘summary
nature’ of the state court’s discussion of the federal constitutional question does not preclude
application of the AEDPA standard.” Id. Rather, it is sufficient to determine that the state court’s
decision was “an adjudication on the merits.” Id.
The Missouri appellate court considered Reeder’s claim that “he suffered a deprivation of
his constitutional right to present a defense as a result of the trial court’s prohibition against the
use of extrinsic evidence generally and false, non-sexual allegations that occurred after Fall of
2000.” Reeder, 182 S.W.3d at 574. After concluding that the new rule announced in Long did
not apply, it held that “the trial court properly applied the rule of evidence existing at the time of
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trial.” Id. at 576. Though the Missouri court did not exhaustively lay out due-process or
confrontation right standards in its analysis, its conclusion shows that it fully considered Reeder’s
federal claims and determined that the trial court did not violate his constitutional rights. As a
result, I find that its ruling was not contrary to federal law and was a reasonable application of
federal law, and further that the ruling was a reasonable determination of the facts in light of the
evidence presented at trial.
Objection 3: Admission of Victim’s Letter
Reeder next alleges that the Magistrate Judge erred in finding that the trial court properly
admitted a victim’s letter to the court at sentencing, arguing the admitting the letter violated his
Sixth Amendment confrontation right, his Fourteenth Amendment due-process right, and the
hearsay rule.
Reeder’s claim is procedurally defaulted. The Missouri appellate court declined to review
this claim in Reeder’s post-conviction proceedings because he failed to raise the issue on his
direct appeal. See State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992) (noting that a motion
for post-conviction relief is not a substitute for a direct appeal).
To properly preserve an issue for federal habeas review, a state prisoner must fairly present
his claims to state courts during direct appeal or post-conviction proceedings. Sweet v. Delo, 125
F.3d 1144, 1149 (8th Cir. 1997). If the federal constitutional claim is not fairly presented in state
proceedings, it is procedurally defaulted. To overcome procedural default, the defendant must
demonstrate (1) cause and (2) prejudice. Dretke v. Haley, 541 U.S. 386, 393 (2004). The
Supreme Court has noted that “[t]he cause and prejudice requirement shows due regard for States’
finality and comity interests while ensuring that ‘fundamental fairness [remains] the central
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concern of the writ of habeas corpus.’” Id. (quoting Strickland v. Washington, 466 U.S. 668, 697
(1984)). A petitioner who fails to show cause cannot prevail even on a showing of prejudice. See
McClesky v. Zant, 499 U.S. 467, 494 (1991). Because Reeder failed to properly preserve this
claim in his state proceedings, it is procedurally defaulted.
Reeder argues that the ineffectiveness of his trial counsel constitutes sufficient cause to
excuse his default. Ineffective assistance of counsel may be cause that excuses procedural default.
Williams v. Kemna, 311 F.3d 895, 897 (8th Cir. 2002). As discussed more fully below, Reeder’s
counsel was not ineffective for failing to object to the reading of the victim’s letter at sentencing.
The Missouri appellate court rejected Reeder’s ineffective assistance of counsel claim in his postconviction proceedings, finding that Reeder’s counsel employed a reasonable trial strategy. As a
result, Reeder cannot establish cause and his claim fails.
Objections 4 and 5:

Ineffective Assistance of Counsel

Reeder asserts two claims of ineffective assistance of counsel. First, he alleges that his
trial counsel was ineffective for failing to object to the admission of the victim’s letter at
sentencing. Second, he claims his counsel was ineffective for failing to seek admission of
Reeder’s employment records into evidence at trial.
To prove that his trial counsel was constitutionally defective under the Sixth Amendment,
the defendant must show that (1) counsel’s performance was deficient and (2) that the deficiency
“prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficiency, the defendant must meet the high burden of showing that his counsel made such
serious errors such that he was “not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id.; see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)
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(noting the “heavy burden” a movant faces under the Strickland standard). Courts accord
substantial deference to counsel’s performance, examining his actions at the time they were taken,
not after. Strickland, 466 U.S. at 689. To show prejudice, the defendant must prove a
“reasonable probability” that the outcome of the proceeding would have been different “but for
counsel’s unprofessional errors.” Id. at 694. Where the movant fails to establish one of the two
elements, the claim fails. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).
Reeder’s argues the Magistrate Judge improperly recommended that Reeder’s claim that
his trial counsel was constitutionally ineffective for failing to object to the admission of the
victim’s letter at sentencing be denied. He argues that his counsel should have objected to the
letter on hearsay, confrontation, and due process grounds. Reeder also argues the Magistrate
Judge improperly recommended that his claim that his counsel was ineffective for failing to seek
admission of Reeder’s employment records into evidence at trial be denied.
Under § 2254(d)(1), a federal court may not grant a state prisoner's habeas application
unless the relevant state-court decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States.”
Knowles v. Mirzayance, 129 S. Ct. 1411, 1418 (2009).
Reeder’s third and fourth objections fail because the Missouri appellate court’s
determination of his counsel’s effectiveness was not unreasonable. When evaluating a state-court
application of the Strickland standard, “[t]he question ‘is not whether a federal court believes the
state court’s determination’ under the Strickland standard ‘was incorrect but whether that
determination was unreasonable—a substantially higher threshold.’ And, because the Strickland
standard is a general standard, a state court has even more latitude to reasonably determine that a
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defendant has not satisfied that standard.” Id. at (2009) (internal citations omitted).
The Missouri appellate court reasonably concluded that counsel’s decision not to object to
the admission of the victim’s letter was a “reasonable trial strategy” because it was an attempt to
minimize the potential damage from the victim’s statements. The Missouri appellate court also
reasonably determined that Reeder had failed to demonstrate prejudice from his counsel declining
to admit employment records that only showed the number hours he had worked, not the specific
hours. Under such a deferential standard, I find that the Missouri court’s determinations regarding
Reeder’s ineffective assistance of counsel claims were not unreasonable. As a result, Reeder’s
objections are denied.
To grant a certificate of appealability, a court must find a substantial showing of a denial
of a constitutional right. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (“A substantial
showing is a showing that issues are debatable among reasonable jurists, a court could resolve
those issues differently, or the issues deserve further proceedings.”). Based on the foregoing, I
find that Reeder did not provide a sufficient basis to conclude that he was denied a constitutional
right. Therefore, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation [#20] is
SUSTAINED, ADOPTED AND INCORPORATED herein, except to the extent the Magistrate
Judge considered whether Reeder’s petition was timely filed.
IT IS FURTHER ORDERED that Ronnie Reeder’s Motion under 28 U.S.C. § 2254 to
Vacate, Set Aside, or Correct Sentence [#1] is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability
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because Reeder has not made a substantial showing of the denial of a federal constitutional right.
A separate Judgment in accordance with this Memorandum and Order is entered this same
date.

___________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 5th day of September, 2012.

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