Worrall v. Dormire

Filing 26

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Report and Recommendation filed on September 17, 2012 19 is adopted and sustained in its entirety. IT IS FURTHER ORDERED that petitioner's objections to the Report and Recommendation 22 ar e denied. IT IS FURTHER ORDERED that Petitioner John Worrall's Petition for Writ of Habeas Corpus 31 is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability, and petitioner's motion for certificate of appealability 23 is denied. IT IS FURTHER ORDERED that petitioner's motion to appoint counsel 24 is denied as moot. IT IS FURTHER ORDERED that petitioner's motion for leave to proceed ifp 25 is denied as moot as petitioner has previously been granted leave to proceed ifp. A separate judgment in accordance with this Memorandum and Order is entered this same date.. Signed by District Judge Rodney W. Sippel on 10/23/12. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN WORRALL,
Petitioner,
vs.
DAVE DORMIRE,
Respondent.

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Case No. 4:09 CV 2079 RWS

MEMORANDUM AND ORDER
This matter is before me on the petition for writ of habeas corpus filed by
petitioner John Worrall. I referred this matter to United States Magistrate Judge
David D. Noce for a report and recommendation on all dispositive matters
pursuant to 28 U.S.C. § 636(b). On September 17, 2012, Judge Noce filed his
recommendation that petitioner’s habeas petition should be denied.
Petitioner objects to Judge Noce’s Report and Recommendation, and I have
conducted a de novo review of all matters in the file relevant to the objections.
With respect to Ground 1, petitioner argues that Judge Noce should have
ruled on his battered spouse defense de novo. That is not the standard. Judge
Noce correctly applied the governing law to the facts of petitioner’s case and
correctly concluded that the Missouri courts’ evidentiary ruling to exclude
petitioner’s battered spouse defense was not contrary to clearly established federal

law. Therefore, Judge Noce correctly decided that petitioner was not entitled to
habeas relief on Ground 1 of his petition.
Petitioner next argues that Judge Noce incorrectly decided his ineffective
assistance of counsel claims raised in Grounds 2 and 3 of his petition. In his
objections, petitioner restates the arguments he made in support of his habeas
petition. Having reviewed the file, I agree with Judge Noce’s Report and
Recommendation that counsel was not ineffective for failing to include a defenseof-premises instruction, in his cross-examination of witness Yvonne Goodrich,
and in his introduction of evidence of the violent nature of the relationship
between petitioner and the victim. Judge Noce correctly applied the governing
law to the facts of petitioner’s case and correctly concluded that petitioner is not
entitled to habeas relief. Petitioner admits that Judge Noce’s conclusion that
Ground 4 is procedurally defaulted is correct. Because I agree with Judge Noce’s
analysis, I am overruling petitioner’s objections and adopting Judge Noce’s Report
and Recommendation on all grounds of the petition.
I have also considered whether to issue a certificate of appealability. To
grant a certificate of appealability, the Court must find a substantial showing of
the denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
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debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994).
Petitioner has not made such a showing. Therefore, I will not issue a
certificate of appealability. Finally, petitioner has filed a motion for counsel. I
will deny the motion as moot because the habeas petition and a certificate of
appealability are being denied.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation filed on
September 17, 2012 [#19] is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that petitioner’s objections to the Report
and Recommendation [#22] are denied.
IT IS FURTHER ORDERED that Petitioner John Worrall’s Petition for
Writ of Habeas Corpus [#31] is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability, and petitioner’s motion for certificate of appealability [#23] is
denied.
IT IS FURTHER ORDERED that petitioner’s motion to appoint counsel
[#24] is denied as moot.
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IT IS FURTHER ORDERED that petitioner’s motion for leave to proceed
ifp [#25] is denied as moot as petitioner has previously been granted leave to
proceed ifp.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 23rd day of October, 2012.

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