Dickens v. Steele

Filing 13

MEMORANDUM - For the reasons discussed above, the Court finds that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly established federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to 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). Signed by District Judge Carol E. Jackson on 6/11/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TIMOTHY DICKENS,

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Petitioner,
vs.
TROY STEELE,
Respondent.

Case No. 4:10-CV-666 (CEJ)

MEMORANDUM
This matter is before the Court on the petition of Timothy Dickens for a writ of
habeas corpus pursuant to 28 U.S.C. §2254. Respondent has filed a response in
opposition, and the issues are fully briefed.
I.

Procedural Background

Petitioner Timothy Dickens is currently incarcerated in Northeast Correctional
Center in Bowling Green, Missouri, pursuant to the sentence of the Circuit Court of the
City of St. Louis. On January 22, 2004, a jury convicted petitioner of one count of
sexual assault, two counts of forcible sodomy, and one count of forcible rape. On April
15, 2004, petitioner was sentenced to seven years of imprisonment for sexual assault
and eleven years for each of the forcible sodomy and rape convictions. The elevenyear sentences were to be served concurrently with one another, but consecutively to
the seven-year sentence.
On June 21, 2005, the Missouri Court of Appeals affirmed the judgment of the
trial court. Resp. Ex. E; State v. Dickens, 167 S.W.3d 734 (Mo. Ct. App. 2005).
Petitioner then filed a motion for post-conviction relief under Missouri Supreme Court
Rule 29.15. After an evidentiary hearing, the state circuit court denied petitioner’s

motion. Resp. Ex. H. On November 24, 2009, the Missouri Court of Appeals affirmed.
Resp. Ex. K.
In the instant § 2254 petition, petitioner asserts three grounds for relief:
(1) that the state’s evidence was insufficient to support his convictions; (2) that the
trial court erred in failing “to make a sufficient inquiry after learning that a juror
overheard a conversation regarding petitioner’s bad temper and past ‘problems;’” (3)
that trial counsel was ineffective for failing to impeach a witness with a prior
inconsistent statement.
II.

Factual Background

Nicole Walker and petitioner met in September of 2002 and developed a sexual
relationship. On the evening of October 24, 2002, petitioner was at Walker’s home
when Walker received a telephone call from her friend Ralph St. Louis.

Walker

answered the call and petitioner picked up another phone in the apartment to listen
to the conversation. Petitioner asked who was calling, ordered Walker to hang up, and
took the phone away from her. He accused her of “messing around” with other men.
While petitioner and Walker argued, Walker’s friend Pat telephoned.

Petitioner

answered the phone and yelled at Pat. Concerned for her friend, Pat drove to Walker’s
apartment and argued with petitioner. Pat and petitioner left Walker’s apartment
around 10:30 p.m.
After petitioner left, Walker remained agitated. She called petitioner several
times, and left voice messages asking him not to harm her or her children. At 3:00
a.m., Walker fell asleep. She woke at 6:00 a.m. to petitioner’s voice. He was outside
her apartment, demanding that she unlock the door and let him in. When she refused,
petitioner pounded violently on the door. Afraid that he would break down the door,
Walker opened it.

Petitioner entered and searched Walker’s apartment with a
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flashlight saying, “Where is he, I know he’s in here.” Walker asked him to leave.
Instead, he led Walker to the bedroom and started to remove her clothes.

He

presented his penis and demanded oral sex, but Walker refused. He pulled her head
towards his erect penis, and Walker turned her head away. Petitioner placed his penis
on her face and began to growl with anger.

Walker then performed oral sex on

petitioner.
Next, petitioner ordered Walker to bend over on the bed. He inserted his penis
into her vagina and his fingers into her rectum. She told him to stop, but he told her
to “shut up.” After he finished, petitioner called Walker a “stupid bitch,” told her that
she belonged to him, and threatened to blow up her apartment. Petitioner would not
allow Walker to get dressed, and had intercourse with her a second time. Then, he left
her apartment. Walker called the police and Ralph St. Louis, and stated that she had
been raped.
Police officers arrived at Walker’s apartment and found her shaking and crying.
They took her statement, seized her bedspread, and brought her to the hospital where
a doctor conducted an examination and collected specimens for a rape kit.

The

examination revealed a contusion on her thigh but no vaginal injury.
III.

Legal Standard

Federal courts may not grant habeas relief on a claim that has been decided on
the merits in state court unless that adjudication:
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly 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)(1)-(2).
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A state court's decision is "contrary to" clearly established law if "it applies a rule
that contradicts the governing law set forth in [the Supreme Court's] cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of [the
Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141
(2005). "The state court need not cite or even be aware of the governing Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.'" Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early
v. Packer, 537 U.S. 3, 8 (2002)). "In the ‘contrary to' analysis of the state court's
decision, [the federal court's] focus is on the result and any reasoning that the court
may have given; the absence of reasoning is not a barrier to a denial of relief." Id.
A decision involves an "unreasonable application" of clearly established law if
"the state court applies [the Supreme Court's] precedents to the facts in an objectively
unreasonable manner," Payton, 125 S. Ct. at 1439; Williams v. Taylor, 529 U.S. 362,
405 (2000), or "if the state court either unreasonably extends a legal principle from
[Supreme Court] 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."
Id. at 406. "Federal habeas relief is warranted only when the refusal was ‘objectively
unreasonable,' not when it was merely erroneous or incorrect." Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
A state court decision involves an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings only if it is shown that
the state court's presumptively correct factual findings do not enjoy support in the
record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.2004).
“[T]he prisoner has the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Barnett v. Roper, 541 F.3d 804, 811 (8th Cir. 2008).
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III.

Discussion

A.

Ground One

Petitioner argues that there was insufficient evidence to support convictions of
forcible sodomy, forcible rape, and sexual assault. Specifically, petitioner contends
that the prosecution failed to prove forcible compulsion, an element of sodomy and
rape, and lack of consent, which is an element of sexual assault.
“Constitutionally, sufficient evidence supports a conviction if, ‘after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Garrison
v. Burt, 637 F.3d 849, 854 (8th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). Under 28 U.S.C. § 2254(d)(1), a federal court may grant relief only if
the state court’s application of the Jackson sufficiency-of-evidence standard was “both
incorrect and unreasonable.” Id. at 855 (quoting Cole v. Roper, 623 F.3d 1183, 1187
(8th Cir. 2010)); see also Skillicorn v. Luebbers, 475 F.3d 965, 977 (8th Cir.2007)
(recognizing the scope of review of the state court's determination of whether evidence
was sufficient is “extremely limited”). In this case, the Missouri Court of Appeals did
not unreasonably apply the Jackson standard.
The Missouri Court of Appeals found that sufficient evidence supported
convictions of forcible sodomy and forcible rape. The prosecution was required to
prove that the sexual acts occurred through the use of forcible compulsion. Mo. Rev.
Stat. § 566.060(1) (defining forcible sodomy as “deviate sexual intercourse with
another person by the use of forcible compulsion.”); Mo. Rev. Stat. § 566.030(1)
(defining forcible rape as “sexual intercourse with another person by the use of forcible
compulsion.”). As the state court explained, forcible compulsion is defined as either
(a) physical force sufficient to overcome reasonable resistance or (b) an express or
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implied threat that places the victim in fear of death, physical injury, or kidnapping of
herself or another person. Mo. Rev. Stat. § 556.061(12). To determine whether force
is sufficient to overcome reasonable resistance, Missouri courts consider the totality
of the circumstances. State v. Niederstadt, 66 S.W.3d 12, 15 (Mo. 2002). Factors to
be considered include: whether violence or threats precede the sexual act; the relative
ages of the victim and accused; the atmosphere and setting of the incident; the extent
to which the accused was in a position of authority, domination, and control over the
victim; and whether the victim was under duress. Id.
The Missouri Court of Appeals found sufficient evidence of verbal threats placing
Walker in fear of physical injury. Walker testified that petitioner made threats “about
things that could happen to me or my kids.” Walker left voice messages on petitioner’s
phone begging him not to hurt anyone. She unlocked her apartment on the morning
of the attack because she was afraid that petitioner would break down the door. The
court also found evidence sufficient to show use of physical force to overcome
resistance: petitioner led Walker to the bedroom, demanded oral sex, grabbed the
back of her head and pulled it towards his penis, laid his penis on her face when she
turned her head, and “growled” until she performed oral sex. He insisted on having
intercourse and inserted fingers into her rectum although she asked him to stop. He
told her to “shut up” when she protested. Afterwards, he called her names such as
“bitch,” stupid,” and “ignorant,” threatened to blow up her apartment, refused to let
her get dressed, and had sex with her again. The state court reasonably concluded
that there was sufficient evidence of forcible compulsion.
The state court also found sufficient evidence to support the conviction for
sexual assault, which is defined as having “sexual intercourse with another person
knowing that he does so without that person’s consent.” Mo. Rev. Stat. 566.040(1).
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Lack of consent may be established by showing actual force or submission because of
fear induced by violence or threat of violence. State v. Davenport, 839 S.W. 2d 723,
726 (Mo. Ct. App. 1992). Petitioner pounded on the door in the early morning hours
to gain admission to Walker’s apartment, searched the apartment in a jealous rage for
another man, threatened Walker and her children with physical harm, and orally
sodomized her. As the state court noted, even if Walker did not physically resist the
sexual intercourse that followed, she submitted because of fear induced by petitioner’s
threats and violent behavior. The state court reasonably concluded that this evidence
sufficiently shows absence of consent.
The state court reasonably rejected petitioner’s challenge to the sufficiency of
the evidence. Accordingly, relief on this ground will be denied.
B.

Ground Two

Petitioner next argues that the trial court did not make a full inquiry into his
allegation that a juror overheard a prejudicial conversation in a courtroom hallway.
Petitioner argues that the trial court should have examined the entire jury panel to see
if the jury had been contaminated by this conversation.
At the sentencing hearing, the trial court heard testimony from three individuals:
petitioner’s nephew, Wayne Brown; petitioner’s mother, Linda Dickens; and the juror
in question, Charles Moose. Brown testified that petitioner’s family was sitting in the
hallway of the courthouse, laughing and joking about a prior altercation petitioner had
had with another woman, when he saw Moose walking down the hall. Linda Dickens
stated that she also saw Moose. However, Moose testified that he did not overhear
any conversation about petitioner, and that he only considered the evidence presented
in court to reach a verdict. The court found this testimony credible, and concluded
that Moose did not overhear the conversation and there was no basis to disturb the
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jury verdict. The Missouri Court of Appeals held the trial court did not err in refusing
to question the entire jury panel, because Moose did not overhear the conversation.
The Sixth and Fourteenth Amendments guarantee the right to an impartial jury.
Ross v. Oklahoma, 487 U.S. 81, 85 (1988). The trial court found no credible evidence
that Moose overheard anything to jeopardize his impartiality. The court found Moose’s
testimony credible, and this Court is not in a position to reevaluate credibility. Perry
v. Kemna, 356 F.3d 880, 885 (8th Cir. 2004) (“Federal habeas review gives federal
courts no license to redetermine credibility of witnesses whose demeanor has been
observed by the state trial court, but not by them.”).

Because the trial court

determined that Moose did not overhear the conversation, there could be no risk that
the statements were communicated by Moose to other jurors. Accordingly, petitioner
is not entitled to relief on this ground.
C.

Ground Three

For his final ground, petitioner states that trial counsel was ineffective for failing
to impeach witness Ralph St. Louis with a prior inconsistent statement from his
deposition. In actuality, petitioner objects to counsel’s failure to draw attention to a
discrepancy between the deposition testimony of Ralph St. Louis and the trial
testimony of Walker. In his deposition, St. Louis stated that Walker called him at
10:30 p.m. and reported that petitioner was pounding on her door. Resp. Ex. J. At
trial, Walker testified that petitioner left her apartment at 10:30 p.m., and that she
awoke at 6:00 a.m. to petitioner knocking on her door. Petitioner argues that, had the
jury been made aware of St. Louis’ deposition testimony, Walker’s description of the
events would have been called into question.
In order to state a claim of ineffective assistance of trial counsel, petitioner must
demonstrate that his counsel’s performance was deficient and that he was prejudiced
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by that performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient
representation means counsel’s conduct fell below the conduct of a reasonably
competent attorney. Strickland, 466 U.S. at 687. To establish prejudice, petitioner
must show “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. Federal habeas
review of a Strickland claim is highly deferential, because “[t]he question is not
whether a federal court believes the state court’s determination under the Strickland
standard was incorrect but whether the 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
defendant has not satisfied that standard.” Knowles v. Mirzayance, 129 S.Ct. 1411,
1420 (2009) (internal quotations and citations omitted).
The state motion court determined that petitioner could not establish prejudice,
and the Missouri Court of Appeals affirmed. Resp. Ex. K. The testimony of Walker and
St. Louis is consistent in other respects. Both testified that St. Louis and Walker spoke
on the phone on the evening of October 24, 2002, and that petitioner picked up the
phone and demanded to know who was calling. Both testified that they spoke on the
morning of October 25, and that Walker told St. Louis she had been raped.
Considering the prosecution’s evidence of petitioner’s jealousy and hostility, his
inconsistent statements to police, and Walker’s demeanor following the assault, the
state court found no reasonable probability of a different result had St. Louis been
“impeached” with his deposition testimony regarding the 10:30 p.m. phone call. The
state court’s

determination under the Strickland standard was reasonable, and

petitioner is not entitled to relief.

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IV.

Conclusion

For the reasons discussed above, the Court finds that petitioner has failed to
establish that he is entitled to relief based on state court proceedings that were
contrary to, or an unreasonable application of, clearly established federal law, or based
upon an unreasonable determination of the facts in light of the evidence presented in
state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to 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).

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 11th day of June, 2013.

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