Howard v. Steele

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Report and Recommendation filed on July 23, 2012 # 19 is SUSTAINED, ADOPTED AND INCORPORATED herein. IT IS FURTHER ORDERED that Petitioner Devlyn Howards Petition for Writ of Habeas Corpus # 1 is DENIED. IT IS FINALLY ORDERED that the Court will not issue a certificate of appealability. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 9/6/2012. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEVLYN HOWARD,
Petitioner,
v.
TROY STEELE
Respondent.

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Cause No. 4:09 CV 1999 RWS

MEMORANDUM AND ORDER
This matter is before me on a Report and Recommendation that I deny Petitioner Devlyn
Howard’s writ of habeas corpus under 28 U.S.C. § 2254. I referred this matter to United States
Magistrate Judge Nannette A. Baker for a report and recommendation on all dispositive matters
pursuant to 28 U.S.C. § 636(b). On July 23, 2012, Judge Baker filed her recommendation that
Howard’s habeas petition should be denied and no certificate of appealability be issued. Howard
timely filed his objections to the Report and Recommendation [#22]. Under 28 U.S.C. §
636(b)(1)(C) I am required to conduct a de novo review of those portions of the Report and
Recommendation to which Morris-Bey objects.
I have conducted a de novo review of all matters relevant to the petition. Based on that
review, I will adopt and sustain Judge Baker’s Report and Recommendation. Judge Baker
correctly determined that Grounds 2 and 4 of his habeas petition were procedurally defaulted for
failing to raise them on appeal from the denial of post-conviction relief. Although petitioner
argues that the ineffectiveness of his post-conviction appellate counsel’s performance cured his
procedural default, that rule does not apply in cases such as this one involving “appeals from
initial-review collateral proceedings . . . .” Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012)

(reaffirming the holding from Coleman v. Thompson, 501 U.S. 722, 754 (1991), that
ineffectiveness of post-conviction appellate counsel cannot constitute cause sufficient to cure
procedural default). All of Howard’s remaining objections relate to Ground 3 of his petition.
However, Judge Baker correctly decided that Howard is not entitled to habeas relief on that
ground because the failure by a state court to properly instruct a jury on a lesser offense “does not
present a constitutional question cognizable on federal habeas review.” Green v. Groose, 959
F.2d 708, 709 (8th Cir. 1992) (internal quotation marks and citation omitted). Howard’s
objections are without merit and will be overruled. As a result, I will deny Howard’s petition.
Finally, as Howard has not made a substantial showing of the denial of a constitutional right, I
will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation filed on July 23,
2012 [#19] is SUSTAINED, ADOPTED AND INCORPORATED herein.
IT IS FURTHER ORDERED that Petitioner Devlyn Howard’s Petition for Writ of
Habeas Corpus [#1] is DENIED.
IT IS FINALLY ORDERED that the Court will not issue a certificate of appealability.
A separate Judgment in accordance with this Memorandum and Order is entered this same date.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 6th day of September, 2012.

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