Woods v. Bowersox

Filing 15

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Henry Woods' Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus By a Person in State Custody 1 is DENIED. IT IS FURTHER ORDERED that because Petitioner cannot make a subst antial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89, 142 L. Ed. 2d 70 (1998). A judgment dismissing this case is filed herewith.. Signed by District Judge John A. Ross on 3/29/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

HENRY WOODS,

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Petitioner,
vs.
MICHAEL BOWERSOX,
Respondent.

Case No. 4:10CV541 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Henry Woods’ Petition under 28 U.S.C. §2254
for Writ of Habeas Corpus By a Person in State Custody (ECF No. 1 (“Motion”)). Because this
Court has determined that Woods’ claims are inadequate on their face and the record affirmatively
refutes the factual assertions upon which Woods’ claims are based, this Court decides this matter
without an evidentiary hearing.1
BACKGROUND
The Missouri Court of Appeals summarized the evidence regarding this case as follows:2
On the evening of May 28, 2003, sometime after 9:00 p.m., Keith Wilson and
William Robinson (“decedent”) were drinking beer and wine at approximately 4200
Natural Bridge in the City of St. Louis. Wilson saw [Woods] and George Morning,
whom he had earlier seen walking by, coming towards decedent and himself.

1

“A district court does not err in dismissing a movant’s motion without a hearing if (1) the
movant’s ‘allegations, accepted as true, would not entitle’ the movant to relief, or ‘(2) the allegations
cannot be accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.’” Buster v. U.S., 447 F.3d 1130, 1132 (8th Cir. 2006)
(quoting Sanders v. U.S., 341 F.3d 720, 722 (8th Cir. 2003)(citation and quotation marks omitted);
Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (in a § 2254 case, holding that “[a]
petitioner is not entitled to an evidentiary hearing . . . when his claims are . . . contentions that in the
face of the record are wholly incredible.”).
2

The state court’s factual findings are presumed to be correct, and Woods bears the burden
of rebutting this presumption by clear and convincing evidence. 28 U.S.C. §2254(e)(1).

[Woods] and Morning had guns visible as they approached the pair. Earlier that
same day Wilson had a confrontation with [Woods’] girlfriend and then with
[Woods], who told Wilson to leave his girlfriend alone.
[Woods] and Morning opened fire on Wilson. Wilson was struck in the face
by a bullet as [Woods] and Morning approached him and the decedent. Wilson ran
off, but heard multiple shots as he fled. After hiding for a time, he went home and
told his brother that [Woods] had shot him. Wilson thereafter went to the hospital
for treatment of his injuries. James Prichard, a police officer for Moline Acres, was
doing security work for an Auto Zone store in the 4200 block of Natural Bridge on
the evening of May 28, 2003. He heard multiple gun shots, ran towards the sound
and saw Robinson held up against a telephone pole on the corner of Natural Bridge
and Harris by [Woods], who had a gun in one hand. Prichard observed that Morning
also had a gun. He identified himself as a police officer, and ordered them to stop,
but [Woods] and Morning fled the scene.
The police collected evidence from the scene, which included shell casings
from two different weapons, and recovered two .45 caliber bullets from decedent’s
body. Wilson identified both [Woods] and Morning from separate photo arrays, and
later identified them in separate line-ups.
[Woods] was indicted for murder in the first degree in violation of section
565.020 RSMo (2000)3, for armed criminal action in violation of section 571.015 in
connection with Count I, for assault in the first degree in violation of section
565.050, and for armed criminal action in connection with Count III. The indictment
also charged that [Woods] was a prior offender.
[Woods] had a trial by jury from January 24, 2004 through January 26, 2004.
At the instruction conference, [Woods’] counsel made a general objection to the
verdict directing instructions on the basis that they were not justified by the evidence.
Counsel for [Woods] did not make any specific objections to the verdict directing
instructions. The jury convicted [Woods] on all four counts. The trial court
sentenced [Woods] to life without the possibility of parole on Count I, and to three
life sentences on Counts II, III, and IV, all sentences to run concurrently.
(Respondent’s Exhibit E, pp. 2-3). On March 7, 2006, the Missouri Court of Appeals affirmed
Woods’ convictions on direct appeal. (Id., p. 8); State v. Woods, 188 S.W.3d 459 (Mo. Ct. App.
2006). On May 19, 2009, the court also affirmed the denial of Woods’ 29.15 motion for post
conviction relief. (Respondent’s Exhibit L); Woods v. State, 298 S.W.3d 137 (Mo. Ct. App. 2009).

3

Unless noted otherwise, all further statutory citations are to RSMo (2000).
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On March 29, 2010, Woods filed this Motion seeking relief based upon the following
grounds:
(1)

the trial court committed plain error by giving Instruction No. 9, the verdict director

for assault in the first degree, in that there was insufficient evidence to support that instruction;
(2)

the trial court committed plain error by giving Instruction No. 9 because there was

a variance between the instruction and the indictment for first-degree assault;
(3)

trial counsel was ineffective because he had a conflict of interest that adversely

affected his performance;
(4)

trial counsel was ineffective for failing to impeach the surviving victim with an

inconsistent statement;
(5)

trial counsel was ineffective for not advising him of, and allowing him to exercise

his right to testify; and
(6)

trial counsel was ineffective for failing to object when the State offered a theory of

the crime that was different from the theory presented at his accomplice’s trial.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2254, a district court “shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). “[I]n a § 2254 habeas corpus proceeding, a federal court’s review of alleged
due process violations stemming from a state court conviction is narrow.” Anderson v. Goeke, 44
F.3d 675, 679 (8th Cir. 1995). “[A]n application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d). “‘A state court’s decision is contrary
to … clearly established law if it applies a rule that contradicts the governing law set forth in
[Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a
[Supreme Court] decision … and nevertheless arrives at a [different] result.’” Cagle v. Norris, 474
F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). The
Supreme Court has emphasized the phrase “Federal law, as determined by the Supreme Court,”
refers to “the holdings, as opposed to the dicta, of this Court’s decisions,” and has cautioned that
§ 2254(d)(1) “restricts the source of clearly established law to [the Supreme] Court’s jurisprudence.”
Williams, 529 U.S. at 412. A State court “unreasonably applies” federal law when it “identifies the
correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case,” or “unreasonably extends a legal principle from [the Supreme
Court’s] precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000).
A State court decision may be considered an unreasonable determination “only if it is shown that
the state court’s presumptively correct factual findings do not enjoy support in the record.” Ryan
v. Clarke, 387 F.3d 785, 791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).
DISCUSSION
I.

Ground 1
In Ground 1, Woods contends that the trial court committed plain error by giving Instruction

No. 9, the verdict director for assault in the first degree because he contends that there was
insufficient evidence to support that instruction. (Motion, p. 4). Woods contends that there was
insufficient evidence to support Instruction No. 9 because there was no evidence that George
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Morning or another shot Keith Wilson as hypothesized in that instruction since all of the evidence
suggested that Woods shot Wilson.
The Missouri Court of Appeals rejected Woods’ claim as follows:
In his first point relied on, [Woods] requests that this Court engage in plain error
review, contending that the trial court committed plain error in giving Instruction No.
9, the verdict director for assault in the first degree, and in accepting the jury’s
verdict of guilty on that charge, in that there was insufficient evidence to support that
instruction “because there was no evidence that George Morning or ‘another’ shot
Keith Wilson as hypothesized in that instruction since all of the evidence suggests
that [Woods] shot Wilson.”
The written version of Instruction No. 9 contained in the legal file reads, in
part, as follows:
As to Count III, if you find and believe from the evidence beyond a reasonable
doubt:
First, that on May 28, 2003, in the City of St. Louis, State of
Missouri, another person knowingly caused serious physical injury
to Keith Wilson by shooting him,
then you are instructed that the offense of assault in the first degree
has occurred ...
This version of the instruction omits some key words. It should have read “the
defendant or another person knowingly caused serious physical injury to Keith
Wilson by shooting him[.]” As originally written, Instruction No. 9 indicates that the
jury would have to find that another person shot Wilson in order to find [Woods]
guilty of Count III, first degree assault. However, the State noticed this omission just
after the trial court read the instructions to the jury, and the State brought it to the
attention of the trial court prior to the arguments of counsel and the submission of
the case to the jury. This led the trial court to make the following statement to the
jury:
Ladies and Gentlemen, at this time, the court will re-read Instruction
9. You will note that when you get to Instruction 9, I have added to
the first paragraph the following words: “the defendant or.” I will reread the instruction in its entirety at this time.
The record reflects that the trial court did re-read that instruction to the jury.
[Woods’] brief fails to mention that the trial court took this corrective measure,
which properly instructed the jury on this matter. The trial court may correct an
instruction and it is the duty of the trial court to do so, “at any time during the trial,
especially before the case has been submitted, if upon reflection the same is
considered to have been erroneously given.” State v. Sawyer, 367 S.W.2d 585, 588
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(Mo. 1963). In Sawyer, the Missouri Supreme Court found no error where the trial
court corrected the defective instruction during the reading of the instruction to the
jury, prior to the argument of counsel and final submission of the case to the jury,
much like the present case. Under the factual circumstances of this case, the alleged
error regarding Instruction No. 9 does not rise to the level of manifest injustice.
Point denied.
(Respondent’s Exhibit E, pp. 4-5).
To warrant federal habeas relief, Woods must establish not only that the instruction is
erroneous, “‘but that it violated some right which was guaranteed to the defendant by the Fourteenth
Amendment.’” Beets v. Iowa Dep’t of Corrs. Servs., 164 F.3d 1131, 1134 (8th Cir.1999) (quoting
Cupp v. Naughten, 414 U.S. 141, 146 (1973)). “Habeas corpus relief may be granted only when an
erroneous jury instruction constituted ‘a fundamental defect’ that resulted ‘in a complete miscarriage
of justice, [or] an omission inconsistent with rudimentary demands of a fair trial.’” Louisell v. Dir.
of Iowa Dep't of Corrs., 178 F.3d 1019, 1022 (8th Cir.1999) (quoting Crump v. Caspari, 116 F.3d
326, 327 (8th Cir.1997)). Here, the claimed error was clearly harmless as it was corrected almost
immediately and prior to the jury beginning deliberations. See Respondent’s Exhibit E, p. 5;
Respondent’s Exhibit D, pp. 434-35; State v. Sawyer, 367 S.W.2d 585, 588 (Mo. 1963); Carson v.
Dir. of Iowa Dept. of Corr. Services, 150 F.3d 973, 976 (8th Cir. 1998)(even if petitioner’s claims
of instructional error rose to the level of constitutional violations, they cannot be the basis for habeas
relief if they are harmless); Seiler v. Thalacker, 101 F.3d 536, 539 (8th Cir.1996)(same). Before
the jury received the case, the trial court was made aware of the improper instruction. The Court
re-read the corrected Instruction No. 9, which permitted the jury to find that Woods or another shot
Keith Wilson. (Respondent’s Exhibit E, p. 5; Respondent’s Exhibit D, pp. 434-35). Because the
trial court took this corrective measure, there was no instructional error. Accordingly, the Missouri
Court of Appeals’ decision was not contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States nor was the

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decision based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding. Woods’ first point is denied.
II.

Ground 2
In Ground 2, Woods contends that the trial court erred in giving Instruction No. 9 of the

verdict director for assault in the first degree and accepting the jury’s verdict of guilty because it
violated Woods’ right to due process, his right to a fair trial and to be convicted only of the crime
charged. (Motion, pp. 4-5). That is, the Indictment charged Woods with a Class A felony of assault
by attempting to kill or cause serious physical injury to Keith Wilson, but Instruction No. 9
instructed the jury that Woods was guilty of assault in the first degree if they found that another
person knowingly caused physical injury to Keith Wilson by shooting him. (Id.). Woods contends
that this constitutes a fatal variance from the offense charged and gave [Woods] no notice that the
jury would be instructed on this method of committing the class A felony of assault. (Id.).
The Missouri Court of Appeals rejected Woods’ argument regarding Instruction No. 9 as
follows:
In his second point relied on, [Woods] also requests plain error review, arguing that
the trial court plainly erred in giving Instruction No. 9 and in accepting that jury’s
verdict of guilty on that count in that there was a fatal variance between the
indictment charging him with assault in the first degree and Instruction No. 9, giving
him no notice that the jury would be instructed on a different method of committing
assault in the first degree and thereby violating his right to due process.
Count III of the indictment that charged [Woods] with assault in the first
degree reads as follows:
The Grand Jurors of the City of St. Louis, State of Missouri, charge
that the defendant, acting with George Morning, in violation of
Section 565.050, RSMo, committed the class A felony of assault in
the first degree, punishable upon conviction under Section 558.011,
RSMo, in that on or about May 28, 2003, in the City of St. Louis,
State of Missouri, the defendant, acting with George Morning shot
Keith Wilson and such conduct was a substantial step toward the
commission of the crime of attempting to kill or cause serious
physical injury to Keith Wilson, and was done for the purpose of
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committing such assault, and in the course thereof inflicted serious
injury on Keith Wilson.
There are two options in charging first degree assault as a class A felony. One
option uses the allegation “knowingly caused serious physical injury to [the victim]”
and the second option is to use the allegation “attempted to (kill) (or) (cause serious
physical injury to) by ... and in the course thereof inflicted serious physical injury on
[the victim].” If the first option is used, the jury should be instructed using MAI-CR
3d 319.02, and if the second option is used, the jury should be instructed using MAICR 3d 219.06. The indictment for Count III, first degree assault, uses the second
option, but Instruction No. 9 uses the language of MAI-CR 3d 319.02, in addition to
omitting the words “the defendant or” as previously noted in our discussion of
[Woods’] first point relied on. The State concedes that there is a variance, but asserts
that it is not a fatal variance.
A variance is not fatal and does not require reversal unless it submits a new,
distinct offense from that with which the defendant was charged. State v. Glass, 136
S.W.3d 496, 520 (Mo. banc 2004)(quoting State v. Clark, 782 S.W. 2d 105, 108 (Mo.
App. 1989)). Instructing on one form of the offense where the information or
indictment charges another form of the same offense is not reversible error absent a
showing that the variance is both material and prejudicial to the defendant. See State
v. Williams, 18 S.W.3d 461, 469 (Mo. App. 2000). To warrant reversal, the variance
must be material and prejudice to the defendant. Glass, S.W. 3d at 520. A variance
is material when it affects whether the accused received adequate notice; a variance
is prejudicial when it affects a defendant’s ability to defend himself against the
charge. Id. There is no actual prejudice where the defense at trial, if believed by the
jury, is adequate to disprove both the charges in the information/indictment and the
charges in the instruction. See State v. Madison, 997 S.W. 2d 16, 19 (Mo. banc
1997).
This case is similar to Williams, 18 S.W.3d 461. In Williams, the defendant
was charged in the information with the class A felony of assault in the first degree,
which required a finding that the victim sustained a serious physical injury.
However, the jury instruction submitted the assault charge as a class B felony, which
required the jury find that the defendant or another attempted to kill or cause serious
physical injury to the victim. Id. at 468. This Court noted in that case that the
information notified the defendant that he would face a charge of shooting the victim
and the instruction also submitted an offense based on the shooting of the victim. Id.
at 469. This Court held that the instruction did the affect whether the defendant in
Williams received adequate notice of the charge against him. Id. Similarly in the
present case the indictment informed [Woods] that he would face a charge of acting
with another in shooting Wilson and inflicting serious physical injury on him.
Instruction No. 9, as corrected by the trial court submitted a charge based on the
shooting of Wilson by [Woods] or another person acting with [Woods]. Accordingly
the variance was not material.

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Assuming arguendo, that the variance between the indictment and Instruction
No. 9 was material, it was not prejudicial to the defense presented by [Woods], and
does not rise to the level of manifest injustice required for plain error to be
reversible. The crux of the defense offered by [Woods] was to cast doubt on the
credibility and accuracy of Wilson’s testimony and identification of [Woods] as one
of his assailants, asserting that [Woods] did not commit the crimes. As in the case
of Williams, in which the defendant denied any involvement in the assault, “it is
difficult to see how this defense would have changed” based upon the variance
between the indictment and the instruction at issue. Id. Further, a variance between
a charge and the instruction is not prejudicial where there is evidence that supports
the allegations in the indictment and those contained in the instruction. See State v.
Johnson, 606 S.W. 2d 655, 656-57 (Mo. banc 1980); State v. Davis, 684 S.W.2d 38,
39-40 (Mo. App. 1984); State v. Collins, 519 S.W. 2d 362, 363-64 (Mo. App. 1975).
There is no prejudice and no manifest injustice. Point denied.
(Respondent’s Exhibit E, pp. 5-7).
“‘[A]

person's [sixth amendment] right to reasonable notice of the charge against him ... is

incorporated in the Fourteenth Amendment to the United States Constitution and thus cannot be
abridged by the states.’” Franklin v. White, 803 F.2d 416, 417 (8th Cir. 1986)(quoting Goodloe v.
Parratt, 605 F.2d 1041, 1045 (8th Cir.1979)). Fair notice due process claims are cognizable in
habeas corpus. Franklin, 803 F.2d 416, 417; Goodloe, 605 F.2d at 1045 n.12. Therefore, a court
cannot permit a defendant to be tried on charges that are not made in the indictment against him.
Stirone v. U. S., 361 U.S. 212, 217, 80 S. Ct. 270, 273, 4 L. Ed. 2d 252 (1960). However, not all
variances between the charge and the verdict director are fatal.
Respondent argues that the variance present here is a simple, not fatal variance, and the
Petitioner’s case was not prejudiced in any way. “Convictions generally have been sustained as long
as the proof upon which they are based corresponds to an offense that was clearly set out in the
indictment.” United States v. Miller, 471 U.S. 130, 136, 105 S. Ct. 1811, 1815, 85 L. Ed. 2d 99
(1985). In contrast, “[f]or a variance to be fatal, i.e., requiring reversal, the instruction must submit
a new and distinct offense from that charged in the information.” State v. McCullum, 63 S.W.3d
242, 252 (Mo. Ct. App. 2001). In determining if a variance is fatal, “[a]s a general rule, ‘it is

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necessary to determine whether the variance between the information and instruction was material
and whether the variance prejudiced the substantial rights of the defendant....’ ” State v. Condict,
65 S.W.3d 6, 16 (Mo.App.2001) (quoting State v. Lee, 841 S.W.2d 648, 651 (Mo. banc 1992)). The
general rule that allegations and proof must correspond is based upon the obvious requirements (1)
that the accused shall be definitely informed as to the charges against him, so that he may be enabled
to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that
he may be protected against another prosecution for the same offense. Berger v. United States, 295
U.S. 78, 82, 55 S. Ct. 629, 630, 79 L. Ed. 1314 (1935)(citations omitted); see also Hayes v. United
States, 329 F.2d 209, 216 (8th Cir. 1964)
The Court finds that the Missouri Court of Appeals did not unreasonably apply United States
Supreme Court precedent when it rejected Woods’ variance claim. The indictment and the verdict
director both explained that the assault charge was based upon the shooting of Keith Wilson, which
caused him serious physical injury. (Respondent’s Exhibit C, pp. 9, 20; Respondent’s Exhibit D,
p. 434). The Court finds that no fatal variance resulted from the difference between whether Woods,
or his accomplice, (1) knowingly caused serious physical injury to Wilson by shooting him, or (2)
attempted to kill or cause serious physical injury to Wilson by shooting him and, in the course
thereof, inflicted serious physical injury. (Id.). Woods knew he was accused of shooting Wilson
and causing him serious physical injury. His only defense to the charge was that he was not
involved and that the State’s witnesses lacked credibility. Respondent’s Exhibit D, pp. 402-05, 452,
454-55, 457; Respondent’s Exhibit E, p. 8; see United States v. Mohamed, 600 F.3d 1000, 1006 (8th
Cir. 2010)(“The indictment fully and fairly apprised him of the charges against him, despite the
alleged variance, and therefore there was no actual prejudice to Mohamed.”). Woods “does not
claim the variance in this case affected his trial strategy or otherwise prejudiced his defense.” State
v. Lemons, 294 S.W.3d 65, 72 (Mo. Ct. App. 2009); State v. Goss, 259 S.W.3d 625, 627–28 (Mo.
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Ct. App. 2008). Thus, Woods cannot demonstrate that his rights were substantially affected by the
simple variance in the instruction.
The Court finds that the variance was not fatal because it did not submit a new, separate
and distinct offense from the one charged in the indictment. State v. King, 747 S.W.2d 264, 275
(Mo. Ct. App. 1988). Accordingly, the Court finds that the Missouri Court of Appeals properly
rejected this claim and did not misapply federal law.
III.

Grounds 3 and 4
A.

Legal Standard for Ineffective Assistance of Counsel

To support an ineffective assistance of counsel claim, a convicted movant must first show
“that his counsel’s performance was deficient, and that he suffered prejudice as a result.” Paul v.
United States, 534 F.3d 832, 836 (8th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). The movant must also establish prejudice by showing “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694; Malcom v. Houston, 518 F.3d 624, 626 (8th Cir. 2008). A reasonable
probability is less than “more likely than not,” Kyles v. Whitley, 514 U.S. 419, 434 (1995), but
more than a possibility. White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005). A reasonable probability
“is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“The applicable law here is well-established: post-conviction relief will not be granted on a claim
of ineffective assistance of trial counsel unless the petitioner can show not only that counsel’s
performance was deficient but also that such deficient performance prejudiced his defense.” United
States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir. 2005) (citations omitted).
B.

Discussion

In Ground 3, Woods contends that trial counsel was ineffective because he had a conflict of
interest that adversely affected his performance. (Motion, p. 11). Trial counsel directed Woods to
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arrange for Keith Wilson to sign an affidavit, written by counsel, recanting his identification of
Woods, which the State viewed as victim tampering. (Id.). Woods claims that counsel’s
involvement with the affidavit adversely affected his performance at trial by affecting his judgment
and trial strategy relating to the use of the affidavit and Woods’ testimony at trial. (Id.). In Ground
4, Woods claims that he was denied effective assistance of counsel because counsel failed to utilize
evidence of Keith Wilson’s prior inconsistent statement, under oath, that Woods was innocent of the
charged crimes. (Motion, p. 12). Woods maintains that he was prejudiced because had counsel used
the affidavit at trial, then there is a reasonable probability that the outcome of the trial would have
been different. (Id.).
In this case, the Missouri Court of Appeals determined that Woods failed to meet the
Strickland standard. The Court of Appeals rejected Woods’ ineffective assistance of counsel
claim as follows:
Movant’s co-defendant Morning went to trial before [Woods]. Morning’s
counsel asked for a pre-trial ruling concerning the admissibility as a prior
inconsistent statement an affidavit signed by Wilson. During pre-trial examination,
the court questioned Wilson regarding an affidavit he had signed, which stated that
Wilson incorrectly identified [Woods] as the man who shot him. Wilson testified
that [Woods] approached him with the document and asked him to sign it. Wilson
stated that he did not “really read” the document before he signed it. During
argument concerning the use of the affidavit as a prior inconsistent statement to
impeach Wilson’s identification of his assailants, the State asserted that the affidavit
was a product of witness tampering by [Woods] while indicted for murder and on
bond. After hearing argument from the State and Morning, the Court stated:
... I find this to be an abomination. The witness before us is a person
that went to special school district, vocabulary in here is beyond the
pale of his understanding.
He said he didn’t read it. The position of the defense is preserved.
I deem [the affidavit] a coerced document by a co-defendant in a first
degree murder case. I don’t believe it has an indicia of reliability to
consider by the jury. I don’t believe it’s a statement of Mr. Wilson.
It will be preserved and the timely motion by the defense to use it
will be overruled.

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Officer James Prichard (Officer Prichard) testified at Morning’s trial. As
pertinent to the issues on appeal, Officer Prichard testified that while working a
secondary job at an Auto Zone at the intersection of Natural Bridge and Harris
Avenue on the evening of May 28, 2003, he heard a series of nine gunshots being
fired outside the store. After hearing the shots, he exited the Auto Zone to determine
what was occurring. Officer Prichard saw three individuals at the streets’
intersection, a victim and two men holding guns. The victim was being held up
against a telephone pole by the taller of the two individuals, who has his gun
approximately six to eight inches away from the victim’s face. The shorter
individual was standing approximately five to eight feet away from the victim.
[...]
Officer Prichard also testified at [Woods’] trial, and stated that when he
arrived on the scene of the shooting, he saw victim Robinson being held up against
a telephone pole by the taller of the two individuals. Prichard further stated he did
not see a weapon in the victim’s hand, but that both of the other two individuals were
holding guns. When Officer Prichard announced his presence as a police officer,
both assailants ran. Officer Prichard immediately went to check on the victim and
discovered that the victim had been shot numerous times in the face and chest.
The assault victim, Wilson, was a witness for the State during [Woods’] jury
trial and testified as follows. Wilson, who was thirty-years-old, had trouble learning
when he was a student and had attended a special school; he last attended school in
the eleventh grade. He cannot hold a job and receives a disability check.
Wilson had known victim Robinson and [Woods] (whom he knew as “Light”)
for years before the shooting occurred. [Woods] lived near Wilson and drove a
scooter.
On May 28, 2003, [Woods’] girlfriend tried to run over Wilson’s feet with
[Woods’] scooter. Wilson asked her why she tried to run over him. [Woods’]
girlfriend was “angry a little bit.” Later that same morning, [Woods] drove up to
Wilson on the same scooter and told Wilson to leave his girlfriend alone.
That evening, Wilson met up with Robinson and they bought something to
drink at the liquor store on Natural Bridge. Wilson bought a thirty-two ounce Miller
and Robinson bought a fifth of Cisco. Wilson and Robinson walked to a hair shop
farther down on Natural Bridge to sit. While they were sitting next to the hair shop,
Wilson saw someone coming up Harris Street. Wilson recognized him because he
had seen this person with [Woods] before. The person looped towards Wilson and
then left the same way he came. Wilson moved closer to the corner of the street and
saw this person, whom he recognized and later learned was named George Morning,
again approaching, this time accompanied by [Woods]. [Woods] is taller than
Morning. Both men had guns. Wilson and Robinson were standing together near
a pole.

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After the two men got close to Wilson, they shot him. A shot hit Wilson in
the left side of his mouth. After Wilson was shot, he ran across the street to the
liquor store. He heard more shots as he ran into the street. Wilson ran into the liquor
store and asked for some help. He stayed there for a little bit, but then ran out and
went home. When he got home, he told his brother that [Woods] had shot him.
Wilson then went to the hospital, where he was treated for a broken bone on
the right side of his face. He lost four or five teeth and part of his tongue as a result
of the shooting. Police officers visited Wilson while he was in the hospital, and they
asked him about the incident. Wilson gave them [Woods’] name as his shooter, and
when police officers came by with a series of photographs, Wilson picked out
[Woods’] picture.
After his release from the hospital, Wilson went to a police station and looked
at a live lineup on June 19, 2003. He picked out [Woods] and identified him as his
assailant. Wilson again viewed a lineup on August 4, 2003, and identified George
Morning as the other person involved in the shooting.
On cross examination, Wilson agreed that he had been receiving a disability
check for mental problems for many years and stated that he could “read a little bit.”
Wilson admitted that he and Robinson had been drinking the Cisco wine before the
shooting and that it was very dark outside, but insisted that he was sober and
remembered exactly how everything looked that evening. Wilson admitted that
when he talked to the police right after he was shot, he told them that he had spoken
to [Woods’] girlfriend the morning of the shooting, she had ignored him and he had
told her she had a bad attitude. Wilson also agreed he told police that after Wilson’s
confrontation with [Woods’] girlfriend, [Woods] came to him and threatened him.
When [Woods’] trial counsel pointed out that Wilson did not tell him about an
argument between Wilson and the girlfriend when trial counsel took his deposition
before trial, Wilson agreed that he had not mentioned it.
[...]
In his amended Motion to Vacate, Set Aside or Correct Judgment and
Sentence filed pursuant to Rule 29.15, [Woods] alleged, among other things, that his
trial counsel’s involvement in composing an affidavit for the alleged assault victim
Wilson to sign and in encouraging [Woods] to have contact with Wilson to procure
his signature created an actual conflict of interest between [Woods] and his trial
attorney that made impartial advice and representation impossible due to the fact that
the State viewed this conduct as the crime of witness tampering.
According to [Woods’] trial counsel’s testimony at the evidentiary hearing,
on July 24, 2004, [Woods] informed him that Wilson had recently visited [Woods]
at his home, where the topic of the shooting arose. In response to [Woods’] remark
that he would never do such a thing, Wilson stated that he did not believe he
correctly identified [Woods] and was positive that [Woods] had not been his
assailant. Someone from trial counsel’s office drafted an affidavit for [Woods] and
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his co-defendant. [Woods’] trial counsel did not want contact with Wilson because
he was a witness and told [Woods] that, if Wilson voluntarily wanted to sign the
affidavit, Wilson could take it to a notary.
Thereafter, [Woods’] trial counsel and trial counsel for co-defendant Morning
deposed Wilson, at which time Wilson identified [Woods] as his assailant. During
the deposition, [Woods’] trial counsel produced Wilson’s affidavit. [Woods’] trial
counsel recalled that, after he produced the affidavit, the State asserted that [Woods’]
bond could be revoked or he could be charged with intimidating a witness or victim
tampering. [Woods’] trial counsel discussed the State’s reaction with [Woods], and
explained the consequences of using the affidavit at trial, including the possibility
of [Woods] being taken off bond and additional charges being filed against him.
Trial counsel also advised [Woods] that, as long as the circumstances surrounding
the procurement of Wilson’s signature were as [Woods] portrayed, trial counsel did
not believe they constituted witness tampering. [Woods’] trial counsel left the
decision up to [Woods], who directed his trial counsel to make no further use of the
affidavit. Although trial counsel thought the jury might associate some impropriety
with the procuring of the affidavit, trial counsel did not view [Woods’] actions as
tampering and was not concerned for himself.
During the evidentiary hearing, [Woods] testified that his trial counsel never
discussed the issue of victim tampering with him and he thought his counsel was
going to use the affidavit. After stating that he “didn’t know nothing about victim
tampering until actually [post-conviction counsel] came to be my lawyer [she] did
the research,” [Woods] claimed that when he had asked his trial counsel after the
guilty verdict why he had not used the affidavit, his counsel told him he had not
because the State could have charged him with witness tampering.
[Woods’] trial counsel opined that the affidavit could “cut both ways. That
affidavit could be viewed askance by a jury or it could be viewed as substantial
impeachment by a jury.” [Woods’] trial counsel thought the possible appearance of
impropriety could lead the jury to form a negative inference concerning [Woods] and
his guilt.
[Woods] claimed that he had wanted to testify at his trial, but that his counsel
had told him that he would withdraw should [Woods] do so. [Woods] denied that he
knew he had a right to testify, even though he had pleaded guilty to a drug
possession charge several years prior. However, [Woods’] counsel testified that he
absolutely informed [Woods] that he had a right to testify.
In its Findings of Fact, Conclusions of Law and Order, the motion court
concluded that [Woods] had failed to establish facts, which if true, would entitle him
to relief. As to the affidavit, the motion court concluded there was no persuasive
evidence presented that indicated that [Woods] approached Wilson and improperly
persuaded him to execute the affidavit and that [Woods] had not established that the
reason trial counsel decided not to use the affidavit was due to a concern about trial
counsel’s exposure to discipline or prosecution, as opposed to reasonable trial
strategy.
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[...]
Due to the interrelatedness of the points, we shall address [Woods’] first and
second points conjointly. In his first point, [Woods] claims that the motion court
clearly erred in denying his motion for post-conviction relief because his trial
counsel directed him to arrange for Wilson to sign an affidavit prepared by counsel,
whereby Wilson recanted his identification of [Woods] as his assailant. [Woods]
asserts that because the State viewed this activity as victim tampering, counsel’s
involvement with the affidavit adversely affected counsel’s performance at trial by
affecting his judgment and trial strategy relating to the use of the affidavit and
[Woods’] testimony at trial. In his second point, [Woods] claims that counsel’s
unreasonable failure to use the affidavit at trial as evidence of a prior inconsistent
statement under oath that [Woods] was innocent of the charged crimes prejudiced
[Woods] because there is a reasonable probability that the trial’s outcome would
have been different.
To prevail on an ineffective assistance claim based on counsel’s conflict of
interest, absent an objection at trial, a movant must demonstrate that an actual
conflict of interest adversely impacted his counsel’s performance. Mickens v.
Taylor, 535 U.S. 162, 173 (2002); Helming v. State, 42 S.W. 3d 658, 680 (Mo. App.
E.D. 2001). Thus, counsel must have done something, or refrained from doing
something, which was detrimental to the movant’s interests and advantageous to the
interest of another. Helming, 42 S.W. 3d at 680; State v. Taylor, 1 S.W. 3d 610, 61112 (Mo. App. W.D. 1999).
We conclude that [Woods] has failed to show that a conflict of interest
actually affected the adequacy of his representation. Cuyler v. Sullivan, 446 U.S.
335, 349-50 (1980). Importantly, [Woods] failed to demonstrate that counsel’s
failure to use the affidavit was detrimental to [Woods’] interests.
The affidavit, notarized on October 19, 2004, states, in pertinent part:
COMES NOW, Keith Wilson, who swears to and submits the
following:
1.
I, Keith Wilson, testify that I incorrectly identified defendant
Henry Woods in the course of police interrogation in the above-stated
cause; and
2.
Based on the above incorrect identification and with my
absolute certainty, I now assert that the assailant in the above-stated
cause could not have been and was not the defendant, Henry Woods.
The evidence demonstrates that, aside from the affidavit, Wilson was
consistent in his identification of [Woods] as his assailant. Immediately after the
shooting, Wilson told his brother that [Woods], whom Wilson had known for years,
shot him. Shortly thereafter, Wilson relayed this same information to the police
officers at the hospital. While still confined in the hospital for his injuries, Wilson
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identified [Woods] as his assailant when presented with a series of photographs.
After being released from the hospital, Wilson picked [Woods] out from a lineup.
As well, Wilson testified at his deposition and at [Woods’] trial that [Woods] shot
him.
Additionally, although Wilson may have signed the affidavit voluntarily, the
record demonstrates that Wilson suffers from a mental disability to such an extent
that he attended a special school as a student and had only a limited ability to read.
Presumably, if presented with the affidavit, Wilson would have replied that he did
not know what the affidavit said when he signed it, just as he did during the offer of
proof when Morning’s trial counsel attempted to introduce the affidavit. Thus, trial
counsel’s concern that the “affidavit could be viewed askance by a jury” was a valid
one. Given the overwhelming number of positive identifications by Wilson
immediately following the shooting and Wilson’s limited mental capability, the
reliability of the affidavit, signed over a year later, is questionable, and thus we
cannot say that trial counsel’s decision to not use the affidavit as a prior inconsistent
statement was an unreasonable choice of trial strategy. State v. Boyd, 913 S.W. 2d
838, 845 (Mo. App. E.D. 1995)(counsel is vested with wide latitude in defending
client, using his best judgment in matters relating to trial strategy); Berry v. State,
714 S.W. 2d 676, 678 (Mo. App. E.D. 1986)(decision whether to impeach witness
with prior inconsistent statement is matter of trial strategy accompanied by strong
presumption of correctness).
As to [Woods’] contention that his trial counsel’s failure to use the affidavit
was prompted by a concern about his own exposure to discipline or prosecution due
to his involvement in composing the affidavit, [Woods’] trial counsel testified that,
after relaying to [Woods] the State’s expressed view of the affidavit and its
threatened action, counsel left the decision concerning the affidavit up to [Woods],
who instructed him not to use it. Not only did trial counsel indicate that he did not
view [Woods’] actions as witness tampering, but he also denied that he had any
concern regarding his involvement with the affidavit. We find no clear error in the
motion court’s conclusions that [Woods] failed to establish that the reason for his
trial counsel’s decision not to use the affidavit was a concern for his own interests,
or that the outcome of his trial would have been different had his counsel not
composed the affidavit. Helming, 42 S.W. 3d at 680; Rousan v. State, 48 S.W. 3d
576, 585 (Mo. banc 2001)(motion court entitled to disbelieve movant’s testimony
and to believe counsel’s testimony); State v. Hamilton, 892 S.W. 2d 371, 377 (Mo.
App. E.D. 1995)(deference to lower court’s credibility determinations).
(Respondent’s Exhibit L, pp. 2-14).
The Court finds that the Missouri Court of Appeals’ rejection of Woods’ ineffective
assistance of counsel claim based upon a purported conflict of interest was reasonable and did
not misapply federal law. If a petitioner cannot show an adverse impact under Cuyler, “he is

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necessarily unable to prove prejudice under the more rigorous Strickland standard typically
governing ineffective assistance claims.” Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir.
2006). The Eighth Circuit has stated that:
Under Cuyler a defendant is required to show an actual conflict of interest that
adversely affected his defense. 446 U.S. at 348, 100 S.Ct. 1708. To be successful
[petitioner] would have to identify an actual and demonstrable adverse effect, “not
merely an abstract or theoretical one.” United States v. Flynn, 87 F.3d 996, 1001 (8th
Cir., 1996). To establish that there was a conflict in representation, the defendant
must show “that the conflict caused the attorney's choice” to engage or not to engage
in particular conduct. [Covey v. United States, 377 F.3d 903, 908 (8th Cir. 2004)]
quoting McFarland v. Yukins, 356 F.3d 688, 705 (6th Cir.2004)). Such a showing
requires the defendant to “identify a plausible alternative defense strategy or tactic
that defense counsel might have pursued,' ”'show that the alternative strategy was
objectively reasonable under the facts of the case,” and “establish that the defense
counsel's failure to pursue that strategy or tactic was linked to the actual conflict.”
Covey, 377 F.3d at 908 (citing Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir.2001)
(en banc), aff'd 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)).

Winfield, 460 F.3d at 1039.
In this case, Woods fails to show that counsel’s interests conflicted with his own. Counsel’s
only role in the creation of the affidavit was to have his secretary draft it and give it to Woods for
Wilson to sign. (Respondent’s Exhibit K, pp. 22-25, 51). Counsel had no reason to believe that the
affidavit contained false information or that Wilson would not knowingly or voluntarily sign it. (Id.,
pp. 40-41, 44, 51). It was only later at Wilson’s deposition that counsel learned that Wilson was
unaware of the contents of the affidavit when he signed it, and that Wilson remained steadfast in his
belief that Woods was one of his assailants. (Id., p. 45). Counsel instructed Woods that, as long as
Woods correctly portrayed the manner in which he procured the affidavit, then the affidavit was
proper and it could be used at trial. (Id., pp. 34, 46-47). Woods, however, then directed his counsel
not to use the affidavit. (Id., pp. 33, 50-51).
In addition, defense counsel testified that he had no concerns that he would face
repercussions for having the affidavit drafted. (Respondent’s Exhibit K, p. 52). The post-conviction
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court also found no impropriety in counsel’s involvement in the affidavit. (Respondent’s Exhibit
I, p. 56). Woods, however, fails to prove the existence of an actual conflict of interest because he
has not shown that counsel’s role in drafting the affidavit was contrary to Woods’ interests. In fact,
Woods, not counsel, decided to not to use the affidavit at trial. (Respondent’s Exhibit K, pp. 33, 5051).
Further, the Court agrees with the Respondent that Woods’ claim that his counsel was
ineffective for not using the affidavit to impeach Wilson lacks merit. See ECF No. 9, p. 28. Counsel
believed that impeaching Wilson with the affidavit would have been more detrimental than
beneficial to Woods’ case because of the circumstances surrounding obtaining the affidavit.
(Respondent’s Exhibit K, pp. 34-35). Counsel explained that Wilson’s mental disability would have
prevented him from understanding the affidavit and would give the jury an impression that Woods
had coerced Wilson into signing it. (Id., pp. 47-49). Further, Counsel noted that Wilson had directly
refuted the affidavit during his deposition. (Id., p. 45). After discussing this with him, Woods
decided not to use the affidavit at trial. (Id., pp. 48-49). Thus, defense counsel was not ineffective
for failing to use the affidavit at trial because it was reasonable trial strategy. The affidavit lacked
credibility and the jury likely would have found that Woods took advantage of mentally-disabled
Wilson. See Hall v. Luebbers, 296 F.3d 685, 694 (8th Cir. 2002)(“counsel's decision not to use the
videotaped statement was a strategic decision based on an evaluation that more harm than benefit
would come from its use at trial”); Mason v. Dormire, 4:06CV1786 CDP, 2009 WL 1684713, at *8
(E.D. Mo. June 16, 2009)(“trial counsel could have also decided that impeaching [the victim] would
have caused more harm than benefit”). Consequently, the Court finds that the Missouri Court of
Appeals’ decision was not contrary to clearly established federal law or based on an unreasonable
determination of the facts in light of the evidence presented. See Strickland, 466 U.S. at 690.
IV.

Ground 5
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Woods claims that trial counsel was ineffective for not advising him of and allowing him to
exercise his right to testify. (Motion, p 13). Woods claims that if he had been allowed to testify then
the outcome of the trial would have been different. (Id.).
The Missouri Court of Appeals rejected Woods’ claim as follows:
[Woods’] testimony and his trial counsel’s testimony differ as to whether trial
counsel informed [Woods] of his constitutional right to testify and whether he
prevented [Woods] from testifying. Although [Woods] claimed that he did not know
he had the right to testify, his trial counsel stated he “absolutely” informed [Woods]
that he had that right. After hearing this testimony, the motion court specifically
found [Woods’] claims to not be credible. The motion court is entitled to disbelieve
[Woods’] testimony, and we defer to that finding. Rousan, 48 S.W. 3d at 585;
Hamilton, 892 S.W. 2d at 377. We find no clear error. Rule 29.15(k).
Respondent’s Exhibit L at 14-15.
The Court finds that the Missouri Court of Appeals’ decision was reasonable in light of the
evidence presented.

Counsel testified at the post-conviction evidentiary hearing that he

“absolutely” informed Woods of his right to testify at trial. (Respondent’s Exhibit K, p. 38). The
post-conviction court determined that Woods’ testimony that he had not been so informed lacked
credibility. (Respondent’s Exhibit K, p. 38; Respondent’s Exhibit I, p. 57). The post-conviction
court, which was also the trial court, was in the best position to assess the credibility of Woods’
contention that counsel prevented him from testifying. See Bonich v. Denney, 12-3227-CV-SODS-P, 2012 WL 5472031, at *3 (W.D. Mo. Nov. 9, 2012), citing Graham v. Solem, 728 F.2d
1533, 1540 (8th Cir. en banc 1984)(“Credibility determinations are left for the state court to
decide.”). “Federal habeas review ‘gives federal courts no license to redetermine [the] credibility
of witnesses whose demeanor has been observed by the state trial court, but not by them.’” Perry
v. Kemna, 356 F.3d 880, 885 (8th Cir. 2004)(quoting Marshall v. Lonberger, 459 U.S. 422, 434,
103 S.Ct. 843, 74 L.Ed.2d 646 (1983)). Nothing in the record suggests that the state court erred

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in its determination of credibility. Winfield v. Roper, 460 F.3d 1026, 1035 (8th Cir. 2006).
Accordingly, the Court finds that Woods’ fifth ground lacks merit and is denied.
V.

Ground 6
Woods asserts that his counsel was ineffective for failing to object to the fact that the State

used inconsistent theories at Woods’ trial and the trial of Woods’ co-defendant, Morning. (Motion,
p. 14). The State argued at Woods’ trial that he was Robinson’s killer, but argued at his codefendant’s trial that the co-defendant was Robinson’s killer. (Id.). Woods maintains that he was
prejudiced by his counsel’s failure to object accordingly.
Woods’ accomplice, George Morning, was charged under accomplice liability for the murder
of William Robinson. (Respondent’s Exhibit J, p. 11). James Prichard, a police officer near the
scene, testified at Morning’s trial that he responded to gunshots.

(Respondent’s Exhibit

J/Transcript, p. 198). Officer Prichard saw three people at the scene. (Id., p. 202). The victim
(Robinson) was against a utility pole. (Id.). The taller suspect was holding Robinson up and
holding a gun six to eight inches from his face. (Id., p. 203). The shorter suspect was standing five
to eight feet away and holding a gun. (Id., pp. 203, 205). Officer Prichard did not see any shots
fired. (Id., p. 204). He never specifically identified the two suspects.
During the prosecutor’s closing argument at Morning’s trial, the prosecutor discussed
whether Morning or another person knew or was aware that Morning’s conduct would cause
Robinson’s death:
You can’t shoot somebody here and here and not know that you’re practically
certain to cause his death. And we know from this circumstance from Officer
Prichard that before William Robinson collapsed the smaller of the two guys had him
up against the [l]ight pole looking like he was holding him and letting him drop.
You heard that testimony.

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(Respondent’s Exhibit J/Transcript, p. 504). The prosecutor argued that under accomplice liability,
it made no difference which person shot Robinson. (Id., p. 503). The prosecutor did not argue
which person fired the shot that killed Robinson.
Woods was also charged under an accomplice liability theory with the murder of William
Robinson. (Respondent’s Exhibit C, p. 8). Officer Prichard testified the same at Woods’ trial as he
had at Morning’s trial. (Respondent’s Ex. D, pp. 197-203). Officer Prichard testified that the taller
suspect held the victim against a utility pole. (Id., pp. 202-03). During closing argument, the
prosecutor explained to the jury that under accomplice liability, it made no difference which
defendant pulled the trigger. (Id., p. 436). The prosecutor also argued the following:
William Robinson was killed with a forty-five caliber bullet. Mary Harris’s car was
struck by a forty-five caliber bullet. We don’t know what kind of bullet went though the
mouth of Keith Wilson because that bullet came out his neck. But what was the only other
bullet recovered by the police in the street? It was a forty-five caliber bullet. Who did Keith
Wilson tell you was the one that started shooting at him first? [Woods], the guy standing in
front of the shorter fellow and [Woods] being the taller fellow. What does James Prichard
tell you? The taller of the two guys had the guy up against the pole, and as he let the guy go,
the guy fell.

(Id., pp. 445-46).
Woods argues that, because the prosecutor said during Morning’s trial that the shorter
suspect (Morning) had held Robinson up against the pole, and because the prosecutor said during
Woods’ trial that the taller suspect (Woods) had held Robinson, the prosecutor’s theory of the crime
was so inconsistent that it deprived him of due process. (Motion, p. 14; Respondent’s Exhibit F, p.
59). The Missouri Court of Appeals rejected this claim:
Although the State is not collaterally estopped from taking inconsistent
positions nor required to argue mirror-image theories in separate trials of codefendants, the use of inherently factually contradictory theories violates due
process. State v. Carter, 71 S.W. 3d 267, 271-72 (Mo. App. S.D. 2002). In
determining if inconsistent theories violate a defendant’s right to due process and a
fair trial, two factors are useful for analysis: 1) whether the alleged impropriety was
so egregious that it fatally infected the trial, rendering it fundamentally unfair; and
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2) whether the defendant demonstrated a reasonable probability that the verdict
would have been different if the alleged impropriety had not occurred. Id. at 272.
Analyzing the first factor, we find that the State’s contradictory
representations during closing statements of the co-defendants’ trials as to Officer
Prichard’s perception of relative size of the individual who was holding victim
Robinson against the telephone pole compared to the other assailant was isolated and
represented an anomaly when compared to the rest of the trial. Particularly, in light
of the fact that Officer Prichard’s testimony concerning the size of the assailants did
not vary between the two trials, any error caused by the State’s contradictory
representations did not fatally infect [Woods’] trial nor render the entire trial
fundamentally unfair. Id.
As to the second factor, we also find no reasonable probability that the
outcome of [Woods’] trial would have been different. Id. The State presented the
case to the jury on the theory of accomplice liability. Here, there was ample
evidence on which the jury could find [Woods] guilty of Robinson’s murder and
Wilson’s assault, based on the theory of accomplice liability. Id. (discussing
elements of first-degree murder; in case based on accomplice theory of liability, jury
must find that the defendant had a purpose to aid another in the commission of the
crime); State v. Whittemore, 276 S.W. 3d 404, 407 (Mo. App. S.D. 2009)(discussing
accomplice liability for first-degree assault; because Missouri eliminated the
distinction between principals and accessories, all persons who act in concert to
commit a crime are equally guilty). The motion court did not clearly err in
concluding that the inconsistency was not so contradictory as to violate [Woods’]
due process rights. Rule 29.15(k)(clear error); Carter, 71 S.W.3d at 271-72 (due
process).
(Respondent’s Exhibit L, pp. 15-16).
The Court finds that the decision of the Missouri Court of Appeals was reasonable and there
was no due process violation. There was no inconsistency at the core of the prosecutor’s cases
against Woods and Morning. The record as a whole indicates that the prosecutor did not present
inconsistent theories of the crime. Officer Prichard testified consistency at both trials that the taller
suspect had held Robinson against a utility pole. At Morning’s trial, however, the prosecutor asked
the jury to recall that the officer testified that the smaller suspect had held Robinson against the
telephone pole. (Respondent’s Exhibit J/Transcript, p. 504). The Court assumes that the prosecutor
had a mistaken recollection of Officer Prichard’s testimony or simply misspoke by saying smaller
when he meant to say taller.
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Moreover, the issue of which suspect held Robinson against the pole is immaterial under the
prosecutor’s accomplice liability theory. Here, there was ample evidence from which the jury could
have found him guilty under an accomplice liability theory. “The evidence at trial was that each of
them approached Wilson and Robinson with guns visible, both opened fire on Wilson, both
approached Robinson, both were observed with guns by the off duty police officer who heard shots
fired and saw Robinson being held up against a pole, and both fled from the scene.” (Respondent’s
Exhibit I, pp. 57-58). At the trials of Woods and Morning, “[t]he perpetrators were the same two
individuals, the evidence and theories in both cases were that the crimes were committed by the two
persons acting in concert, there was evidence that both had guns and had fired their guns, and the
identity of the person holding Robinson up against the pole was not critical to the criminal liability
of either participant.” (Id. at 59).
The Court further finds that Woods’ claim that his counsel was ineffective for failing to
object on these grounds lack merits. To state an ineffective assistance of counsel claim for failing
to object, “[t]he movant must prove that a failure to object was not strategic and that the failure to
object was prejudicial.” State v. Clay, 975 S.W.2d 121, 135 (Mo. 1998)(citing State v. Tokar, 918
S.W.2d 753, 768 (Mo. banc 1996)). Woods is unable to demonstrate prejudice from defense
counsel’s failure to make a meritless objection. Johnson v. Bowersox, 4:10CV92 LMB, 2013 WL
253232, at *6 (E.D. Mo. Jan. 23, 2013); see Clay, 975 S.W.2d at 135 (Mo. 1998)(“Counsel will not
be deemed ineffective for failing to make nonmeritorious objections.”); Rodriguez v. United States,
17 F.3d 225, 226 (8th Cir. 1994)(“counsel's failure to advance a meritless argument cannot constitute
ineffective assistance”). Ground 6 is denied.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Henry Woods’ Petition under 28 U.S.C.
§2254 for Writ of Habeas Corpus By a Person in State Custody [1] is DENIED.
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IT IS FURTHER ORDERED that because Petitioner cannot make a substantial
showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834,
119 S. Ct. 89, 142 L. Ed. 2d 70 (1998).
A judgment dismissing this case is filed herewith.
Dated this 29th day of March, 2013.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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