Moore v. Norman

Filing 47

MEMORANDUM AND ORDER HEREBY ORDERED that Petitioner's First Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 37 ) is DENIED, and his claims are DISMISSED with prejudice. A separate Or der of Dismissal will accompany this Memorandum and Order. 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 (1998). Signed by District Judge Jean C. Hamilton on 03/26/13. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANTHONY CURTIS MOORE,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 4:10CV1107 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Anthony Curtis Moore’s first
amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“§ 2254 Petition”). The
matter is fully briefed and ready for disposition.
On April 26, 2007, Petitioner was convicted after a bench trial in the Circuit Court of the City
of St. Louis, Missouri, of two counts of murder in the first degree in connection with the suffocation
deaths of his children. Petitioner was sentenced on May 25, 2007, to two concurrent terms of
imprisonment of natural life without probation and parole. Petitioner’s convictions and sentences
were affirmed on appeal. State v. Moore, 264 S.W.3d 657 (Mo. App. 2008). Petitioner thereafter
filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was
denied as untimely filed. The Missouri Supreme Court affirmed the denial of Petitioner’s postconviction motion as time-barred. Moore v. State, 328 S.W.3d 700 (Mo. 2010).
Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston,
Missouri. Petitioner filed a pro se petition for writ of habeas corpus on June 18, 2010. (ECF No.
1). The Court appointed counsel to represent Petitioner on November 7, 2011 (ECF No. 25), and
attorney Kevin L. Schriener filed the instant § 2254 Petition on Petitioner’s behalf on May 23, 2012.

(ECF No. 37). In his § 2254 Petition, Petitioner raises the following six claims for relief:
(1)

That the trial court erred in overruling Petitioner’s motion for judgment of
acquittal, as there was insufficient evidence to refute Petitioner’s affirmative
defense of not guilty by reason of mental disease or defect;

(2)

That the trial court erred in admitting evidence of Petitioner’s post-offense
conduct on the issue of his mental health;

(3)

That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to call a neurologist to testify regarding the presence and import of a
bilateral frontal subdural hematoma discovered in a CT scan taken just after
the incident;

(4)

That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to present evidence regarding additional mental health treatment
Petitioner may have received after the offenses and while in custody;

(5)

That Petitioner received ineffective assistance of counsel, in that trial counsel
failed sufficiently to advise Petitioner regarding his right to a jury trial; and

(6)

That Petitioner received ineffective assistance of counsel, in that appellate
counsel failed to challenge on appeal the trial court’s improper admission of
hearsay evidence during trial.

(§ 2254 Petition, PP. 5-32). The Court will address the claims in turn.
DISCUSSION1
I.

Ground 1
As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in

overruling Petitioner’s motion for judgment of acquittal, as there was insufficient evidence to refute
Petitioner’s affirmative defense of not guilty by reason of mental disease or defect. (§ 2254 Petition,

1

Respondent devotes a portion of his response to arguing (1) that Petitioner’s § 2254 Petition
is barred by the applicable statute of limitations, and (2) that a number of Petitioner’s claims are
procedurally barred for failure to present the claims to the state courts. (Respondent’s Response, PP.
10-18). Questions of procedural default and timeliness do not present jurisdictional bars to this
Court’s review, however, and so in the interest of judicial economy, the Court will proceed to the
merits of Petitioner’s claims. See Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006) (citing
Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1681-82, 164 L.Ed.2d 376 (2006); Barrett v.
Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (en banc)).
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PP. 5-13). Specifically, Petitioner faults the trial judge for finding that Petitioner acted with knowing
deliberation, despite the testimony of two expert witnesses that Petitioner was not responsible for
the deaths of his children. Petitioner raised this claim on direct appeal of his convictions, and after
reciting the background facts of the case in detail the Missouri Court of Appeals denied the claim
as follows:
In his first point on appeal, Defendant2 claims the trial court erred in
denying his motions for judgment of acquittal because the defense established
by a preponderance of the evidence that Defendant lacked responsibility for
his actions because he suffered from a mental disease at the time of the
charged criminal conduct.
Expert Witness Testimony
Dr. Bruce Harry, a forensic psychiatrist hired by the defense,
examined Defendant approximately one year after the deaths of Toni and
Kanyé. In Dr. Harry’s opinion, Defendant suffered from Psychotic Disorder
Not Otherwise Specified when he killed his children. Dr. Harry concluded
that, as a result of this condition, Defendant was not able to appreciate the
nature, quality, and wrongfulness of his actions at the time of the crimes.
Dr. Harry based his conclusion that Defendant suffered from a
temporary psychotic disorder on Defendant’s: 1) disorganized speech; 2)
disorganized behavior, which included foaming at the mouth and wandering
around; 3) commission of the crimes during daylight and in plain sight; 4)
failure to try to clean himself; 5) characterization as “OBS violent” by law
enforcement and the police officers' request for a CIT officer, an officer
specialized in working with mentally ill individuals in severe distress; 6)
refusal to yield to uniformed law enforcement officers in the face of lethal
cover and threat of Taser application; and 7) almost immediate receipt of
antipsychotic medication from EMS. Dr. Harry weighed these factors against
those indicating that Defendant was able to understand the nature, quality,
and wrongfulness of his actions, which included the following facts: 1)
Defendant mostly submerged the children in the mud; 2) Defendant left the
scene; 3) prior to his arrest, Defendant reportedly told one of his sisters,
“She's dead”; and 4) upon being informed that his children were dead,
Defendant responded, “I know.” Dr. Harry concluded that these factors
suggesting sanity and deliberation did not outweigh those indicating that
Defendant suffered from a mental disease or defect excluding responsibility.

2

Petitioner is referred to as “Defendant” by the Missouri Court of Appeals.
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On cross-examination, Dr. Harry acknowledged that his “balancing
test” did not take into account certain factors that suggested Defendant
understood his actions. Dr. Harry admitted that the numerous steps
Defendant took in committing the crimes—such as driving down the boat
ramp, getting out of the car, carrying the children to the front of the vehicle,
putting them down in the mud, and holding their faces in the mud—could
indicate that Defendant knew what he was doing and had a plan and a
purpose. Dr. Harry also conceded the possibility that Defendant manifested
the psychotic behavior after committing the crimes. In other words,
Defendant’s psychotic behavior might have been triggered by the trauma of
killing his children.
Dr. John Rabun, a forensic psychiatrist appointed by the court upon
the State’s motion for mental examination, also testified. Dr. Rabun
performed his evaluation approximately two years after the crimes were
committed. Like Dr. Harry, Dr. Rabun found that Defendant did not exhibit
any signs of a mental disease or defect before he committed the crimes or at
the time of his examination, and he concluded that Defendant suffered from
Psychotic Disorder Not Otherwise Specified for the brief period of time
during which he killed his children. On cross-examination, Dr. Rabun also
acknowledged the possibility that Defendant knew at the time of the murders
that his actions were wrong and then suffered a psychotic disorder caused by
the trauma of killing his children.
Section 552.030.1 provides that a “person is not responsible for
criminal conduct if, at the time of such conduct, as a result of mental disease
or defect such person was incapable of knowing and appreciating the nature,
quality, or wrongfulness of such person’s conduct.” Mo.Rev.Stat. §
552.030.1 (2008). Section 552.030.6 provides that:
All persons are presumed to be free of mental disease or defect
excluding responsibility for their conduct.... The issue of whether any
person had a mental disease or defect excluding responsibility for
such person’s conduct is one for the trier of fact to decide upon the
introduction of substantial evidence of lack of such responsibility....
Upon the introduction of substantial evidence of lack of such
responsibility, the presumption shall not disappear and shall alone be
sufficient to take to the trier of fact.
Mo.Rev.Stat. § 552.030.6 (2008). The statute makes clear that when an
individual commits a crime, the legal presumption of sanity is very strong.
See e.g., State v. Bradshaw, 593 S.W.2d 562, 568 (Mo.App. W.D. 1979).
A successful insanity defense requires a defendant to first present
substantial evidence that he lacked responsibility for the offense because he
suffered from a mental disease or defect at the time of the offense. State v.
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Bass, 81 S.W.3d 595, 615 (Mo.App. W.D. 2002). Assuming the defendant
satisfies this burden, he must then overcome the statutory presumption of
sanity by showing by a preponderance of the evidence that he suffered from
a mental illness that precluded him from appreciating the nature, quality, or
wrongfulness of his criminal conduct. Id. The presumption that a defendant
is free from mental disease or defect remains throughout the proceeding and
alone is enough to sustain a finding of sanity even when a defendant presents
substantial evidence to the contrary. Bradshaw, 593 S.W.2d at 568.
Even where a defendant presents substantial and uncontroverted
evidence of a mental disease, a trial court is not required to grant a judgment
of acquittal. The trial court is free to accept or reject Defendant’s evidence
of mental disease or defect. State v. Bell, 798 S.W.2d 481, 487 (Mo.App.
S.D. 1990). As previously stated, in the absence of expert testimony that a
defendant was not suffering from a mental disease or defect excluding
responsibility at the time of the crime, the statutory presumption of sanity
standing alone is substantial evidence to sustain a court’s finding on this
issue. State v. Lee, 654 S.W.2d 876, 881 (Mo. banc 1983).
A review of the record persuades us that there was substantial
evidence in this case for the court to find Defendant was not suffering from
a mental disease or defect excluding responsibility when he killed his
children. Defendant’s family stated that Defendant was behaving normally
and enjoying time with his children before he left their house at 11:00 a.m.
Between the hours of 11:00 a.m. and 3:00 p.m., Defendant made various
phone calls during which he spoke appropriately and coherently. Defendant’s
medical records indicate that, upon his admission to Forest Park Hospital that
afternoon, Defendant was oriented as to time, place, and person.
Furthermore, the State’s cross-examination of Defendant’s medical experts
revealed that their diagnoses were based primarily upon witnesses’
observations of Defendant after he killed his children. Both medical experts
acknowledged the possibility that Defendant knew at the time he was killing
his children that his actions were wrong and then behaved in a disorganized
manner as a result of the trauma of having killed his children. Thus, the trial
court did not err in holding that Defendant’s evidence was insufficient to
rebut the legal presumption of sanity and denying Defendant’s motions for
judgment of acquittal. Defendant’s first point is denied.
State v. Moore, 264 S.W.3d at 661-63.
With respect to federal court review of state court conclusions, 28 U.S.C. §2254 states in
pertinent part as follows:
(d)
An 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
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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 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).
Upon review, this Court finds that the Missouri court’s affirmance of Petitioner’s convictions
and sentences did not result in a decision contrary to federal law. See Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (citation omitted) (In reviewing a claim of
insufficient evidence, the court must determine whether, “after considering 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”). Further, the Court’s review of the record does not
demonstrate that the Missouri court’s decision was based on an unreasonable determination of the
facts in light of the evidence presented. In the instant case, while two testifying psychiatrists
ultimately concluded Petitioner was suffering from an unspecified psychiatric disorder at the time
of the offenses, they both acknowledged that some of Petitioner’s behaviors were consistent with his
understanding the wrongfulness of his acts. For example, Dr. Harry testified that the fact that
Petitioner attempted to bury the children suggested he knew something was wrong at the time.
(Resp. Exh. A, PP. 137-38). He further noted that when he examined Petitioner months later,
Petitioner exhibited no symptoms of psychosis, and there was no indication Petitioner had
experienced any episodes other than the one involving his children. (Id., PP. 141, 184). On crossexamination, Dr. Harry acknowledged that his diagnosis, psychotic disorder not otherwise specified,
is given when a psychiatrist has inadequate information to render a different or more specific

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opinion. (Id., P. 154). Finally, he conceded that Petitioner’s actions in driving to the boat ramp, the
site of the killings, in the first place, and then removing the children from the car, could indicate
premeditation. (Id., PP. 195-96).
The second psychiatrist, Dr. Rabun, testified that he had tried without success to understand
what brought on Petitioner’s behavior, and that Petitioner had been free of symptoms since the
incident. (Resp. Exh. A, PP. 225-26). When the trial judge asked Dr. Rabun how he knew that
Petitioner had not acted “rationally but angrily” with his children, and then suffered psychosis only
after the trauma of their killings, he acknowledged that he could not say. (Id., P. 257). Finally, while
adhering to his conclusion regarding Petitioner’s mental state, Dr. Rabun acknowledged that the
opposite conclusion could also be drawn from the evidence. (Id., PP. 259-60).
In light of these circumstances, the Court finds that despite the experts’ conclusions to the
contrary, a reasonable trier of fact could find that Petitioner acted with deliberation, and was not
under the influence of a mental disease or defect at the time of the offenses. The trial judge’s finding
therefore was not based on insufficient evidence under federal law, and Ground 1 of Petitioner’s
petition will be denied.
II.

Ground 2
As stated above, in Ground 2 of his petition Petitioner asserts the trial court erred in

admitting evidence of Petitioner’s post-offense conduct on the issue of his mental health. (§2254
Petition, PP. 14-18). Specifically, Petitioner claims the trial court erred in considering evidence of
his mental state months after his children were suffocated, as this evidence was irrelevant to the
determination of his mental state at the time of the deaths. Petitioner raised this claim on direct
appeal of his convictions, and the Missouri Court of Appeals denied the claim as follows:
In his second point on appeal, Defendant claims the trial court erred
in overruling defense counsel’s objections to the admission of evidence that
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Defendant was not psychotic one to two months after he suffocated his
children. Specifically, Defendant asserts that he was prejudiced by testimony
given by the victims’ mothers stating that they spoke to Defendant by
telephone in the months after the murders and Defendant was able to have
coherent conversations with them.
As a general matter, the trial court enjoys considerable discretion in
the admission or exclusion of evidence. State v. Gonzales, 153 S.W.3d 311,
312 (Mo. banc 2005). In addition, we review the trial court’s ruling “for
prejudice, not mere error, and will reverse only if the error was so prejudicial
that it deprived the defendant of a fair trial.” State v. Forrest, 183 S.W.3d
218, 223–24 (Mo. banc 2006), quoting State v. Middleton, 995 S.W.2d 443,
452 (Mo. banc 1999).
The key inquiry when a defendant claims that he is not guilty by
reason of insanity is “whether there existed substantial evidence of
defendant’s mental irresponsibility at the time of the homicides.” State v.
Carr, 687 S.W.2d 606, 610 (Mo.App. S.D. 1985). Any facts that would tend
to establish Defendant’s mental state at the time of the crimes charged may
be relevant. See e.g., State v. Raine, 829 S.W.2d 506, 510–11 (Mo.App.
W.D. 1992). The law does not limit the period of time that an inquiry into
defendant’s mental condition may cover. State v. Jackson, 346 Mo. 474, 142
S.W.2d 45, 48 (1940); see also State v. Whitener, 329 Mo. 838, 46 S.W.2d
579, 581 (1932) (“Evidence of [defendant’s] conduct and condition before,
at the time of, and subsequent to the doing of the thing charged is admissible
to enable the jury to arrive at a proper conclusion as to the defendant’s mental
status at the time he did the thing complained of.”). In the instant case, the
testimony of Ms. Jones–Phillips and Ms. Anderson was relevant to the
principal issue in the case—namely, whether Defendant suffered from a
mental disease or defect at the time he committed the crimes charged.
Defendant relies on State v. Brizendine for the proposition that
evidence of a defendant’s mental condition after a crime is committed is
inadmissible. 391 S.W.2d 898, 901–2 (Mo. 1965). In Brizendine, the
Supreme Court held that the record did not establish insanity or mental
irresponsibility. Id. at 902. The Court reviewed the record, which included
the report of an examining psychiatrist, and found that “[n]o witnesses
testified in connection with their observations before, at or after the
commission of the homicide that defendant lacked the requisite mental
capacity to commit the crime.” Id. at 900, 902. The Court did not, as
Defendant claims, hold that evidence of the defendant’s mental condition
after the crime was inadmissible. Rather, the Court considered this evidence
and determined that it did not establish insanity or mental irresponsibility.
Id. at 902. Moreover, when considering whether the defendant was entitled
to a jury instruction on his insanity defense, the Court considered evidence
of the defendant’s “unusual conduct before, during and after the killing.” Id.
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at 902–03.
Clearly, Defendant’s mental condition and ability to maintain a
coherent conversation weeks or months after the crimes is not determinative
of his mental state at the time of his criminal conduct. However, such
evidence is relevant to determining whether Defendant suffered any
continuing, permanent mental incapacity that would relate to the time of the
homicides. See e.g., Brizendine, 391 S.W.2d at 902. Thus, the testimony of
the victims’ mothers was logically relevant to the issue of Defendant’s mental
state at the time he committed the charged offenses.
Furthermore, Defendant was not prejudiced by the testimony in
question because his mental condition following the murder was the subject
of extensive examination during the testimony of Defendant’s own witnesses.
“Generally, a party cannot complain about the admission of testimony over
his objection, where evidence of the same tenor has been admitted without
his objection.” State v. Griffin, 876 S.W.2d 43, 45 (Mo.App. E.D. 1994).
Drs. Harry and Rabun both testified, without objection, that Defendant did
not exhibit any psychotic or disorganized behavior at the time they conducted
their examinations; Defendant had suffered no relapses since the murders;
Defendant was coherent at the hospital following the murders; and Defendant
had not received any psychiatric treatment or psychotropic drugs since the
paramedics administered Haldol and Ativan on the day of the murders. Both
psychiatrists made clear that, in their opinions, Defendant suffered a
psychotic disorder for only a few hours. Thus, we conclude that the trial
court did not err in admitting Ms. Jones–Phillips’ and Ms. Anderson’s
testimony regarding Defendant’s behavior in the months after the murders.
Defendant’s second point is denied.
State v. Moore, 264 S.W.3d at 663-64.
As stated above, with respect to federal court review of state court conclusions, 28 U.S.C.
§2254 states in pertinent part as follows:
(d)
An 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 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.
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28 U.S.C. §2254 (d).
Whether evidence is properly admitted is a question of state law that is not reviewable in a
federal habeas proceeding unless a specific constitutional right has been infringed, or the evidence
is so prejudicial as to deny due process. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991).
The federal court must find more than trial error or even plain error to warrant habeas relief on the
basis of an evidentiary ruling. McCafferty v. Leapley, 944 F.2d 445, 452 (8th Cir. 1991), cert.
denied, 503 U.S. 911 (1992). “An evidentiary error violates a defendant’s due process rights only
when the error complained of is so gross, conspicuously prejudicial, or otherwise of such magnitude
that it fatally infects the trial.” Id. (citations omitted).
Upon consideration, this Court finds the evidence admitted by the trial court was not so
prejudicial that it denied Petitioner due process, for two reasons. First, as noted above both
psychiatrists acknowledged the brief nature of Petitioner’s alleged psychotic break, and testified that
upon examination months later Petitioner no longer exhibited any symptoms of the disorder. (Resp.
Exh. A, PP. 141, 184, 226). Thus, evidence presented by Petitioner similarly indicated that the
alleged psychotic episode was of short duration.

Further, as noted by Respondent, there is no

indication in the oral or written findings that the trial court based its conclusion regarding
Petitioner’s mental state at the time of the offenses in any way on the testimony of the victims’
mothers. Under these circumstances, there was no “gross” or “conspicuously prejudicial” error that
denied Petitioner due process of law. Ground 2 is denied.
III.

Ground 3
As stated above, in Ground 3 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that trial counsel failed to call a neurologist to testify regarding the presence
and import of a bilateral frontal subdural hematoma discovered in a CT scan taken just after the

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incident. (§2254 Petition, PP. 18-22).3 Petitioner maintains such testimony would have supported
the psychiatrists’ conclusion that Petitioner was suffering from a mental illness at the time he killed
his children.
Under federal law, in order to prevail on his ineffective assistance of counsel claim,
Petitioner must show that his attorney’s performance was “deficient,” and that the deficient
performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To
overcome this presumption, Petitioner must prove that, “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent assistance.”
Id.
Even if Petitioner satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 694. To do so, Petitioner must prove that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
Upon consideration the Court finds that with this claim, Petitioner fails to satisfy either prong
of the Strickland test. With respect to deficient performance, the Court notes that while both
psychiatrists mentioned the hematoma in their reports, neither recommended that any follow-up be
performed to assess its potential connection to Petitioner’s mental state. Further, with the benefit
of two separate psychiatrists willing to testify that Petitioner was suffering from a mental disease or

3

Dr. Rabun noted that a later CT scan did not show any sign of this abnormality. (Resp. Exh.
E, P. A51).
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defect at the time of the offenses, the Court cannot find that Petitioner’s attorney’s decision not to
seek further favorable medical testimony fell “outside the wide range of professionally competent
assistance” sanctioned by Strickland. Id. at 690.
Furthermore, the Court finds that with this claim Petitioner fails to establish the requisite
prejudice. In other words, Petitioner offers no evidence a neurologist would have testified that the
hematoma, which apparently did not appear on later performed CT scans, influenced either his
mental state or his actions on the day in question. Under these circumstances, the Court finds
Petitioner fails to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different,” and so Ground 3 must be denied.
Strickland, 466 U.S. at 694.
IV.

Ground 4
As stated above, in Ground 4 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that trial counsel failed to present evidence regarding additional mental
health treatment Petitioner may have received after the offenses and while in custody. (§ 2254
Petition, PP. 22-25). Specifically, Petitioner maintains his attorney should have summoned
witnesses to testify that, “on information and belief,” Petitioner was placed in a mental health unit
after his arrest, and received mental health treatment from a Dr. Sadiky, and Misty Clemons.
Upon consideration, the Court again finds that with this claim, Petitioner fails to satisfy either
Strickland prong. With respect to performance, the Court notes that Petitioner himself reported to
Dr. Rabun that he had not received any psychiatric care while in jail. (Resp. Exh. E, P. A51). Thus,
despite Petitioner’s current claim that “on information and belief” he received such care, trial counsel
had no duty to investigate alleged care of which he was never made aware.
As for prejudice, as noted by Respondent Petitioner gives absolutely no indication as to the

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nature of the treatment he received, or any conclusions reached by the alleged providers. Under
these circumstances, the Court cannot find that but for counsel’s alleged error, the result of the
proceeding would have been different. Ground 4 is denied.
V.

Ground 5
As stated above, in Ground 5 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that trial counsel failed sufficiently to advise Petitioner regarding his right
to a jury trial. (§ 2254 Petition, PP. 25-29). By way of background, Petitioner filed a written request
to waive his right to a jury prior to trial. (Resp. Exh. A, P. 7). The trial judge questioned Petitioner
extensively regarding this decision, and the following colloquy took place on the record:
THE COURT:

And he [Petitioner’s attorney, Mr. Jeff Estes] just handed me
a memo which (sic) what appears to be your signature. He
told me you did sign this where you are wanting to waive your
right to a jury trial in this matter?

DEFENDANT:

Yes, ma’am.

THE COURT:

And is that your signature?

DEFENDANT:

Yes, ma’am.

THE COURT:

Is that what you want to do?

DEFENDANT:

Yes, ma’am.

THE COURT:

Do you understand you have a constitutional right to a trial by
a jury under our United States Constitution and our Missouri
Constitution?

DEFENDANT:

Yes, ma’am.

THE COURT:

And do you understand that’s a very important right that you
have?

DEFENDANT:

[No response.]

THE COURT:

Yes?

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DEFENDANT:

Yes, ma’am.

THE COURT:

Why have you decided to waive your right to that jury trial?

DEFENDANT:

Because it was in the best interest of my lawyer that I do that-that I have a bench trial.

THE COURT:

But you understand that even if he told you, or gave you his
advice that it was in your best interest, you still would have a
right to ask me for a jury trial? Do you understand?

DEFENDANT:

Yes, ma’am.

THE COURT:

And do you want a jury trial in this matter?

DEFENDANT:

No.

THE COURT:

In other words, you have to knowingly understand your rights,
and you knowingly waive them. Do you understand?

DEFENDANT:

Yes, ma’am.

THE COURT:

So you’re not--has Mr. Estes forced you or coerced you or
said that you can’t have a jury trial no matter whether you
want one or not?

DEFENDANT:

No, ma’am.

THE COURT:

Okay. Is it your desire--your personal desire--not to have a
jury?

DEFENDANT:

Yes, sir--I mean, yes, ma’am.

THE COURT:

Okay. The Court will accept the defendant’s written and his
verbal waiver of his right to a jury trial. The Court finds that
he does understand his constitutional right to a jury trial and
finds that he is knowingly and voluntarily waiving that right.
And again, Mr. Moore, just so that I can be sure, even
though your lawyer advised you that he thought it was best for
you not to do it, do you understand you could still have a jury
trial if you want one?

DEFENDANT:

Yes, ma’am.

(Id., PP. 8-10).

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The Eighth Circuit has held that, “‘[s]olemn declarations in open court carry a strong
presumption of verity.’” Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990) (quoting Blackledge
v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)). This Court thus finds that
Petitioner waived his right to a jury trial in a knowing and voluntary manner. Under these
circumstances, Petitioner fails to establish the requisite prejudice under Strickland; in other words,
he fails to demonstrate that absent his attorney’s alleged error, he would have insisted on proceeding
before a jury. Ground 5 will therefore be denied.
VI.

Ground 6
As stated above, in Ground 6 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that appellate counsel failed to challenge on appeal the trial court’s improper
admission of hearsay evidence during trial. (§ 2254 Petition, PP. 29-32). Specifically, Petitioner
complains that the trial court improperly received evidence that Petitioner stated, “she’s dead,”
shortly after the death of his children, when the statement was taken from Petitioner’s police report
without testimony from the alleged witness to the statement.
Upon consideration, the Court again finds Petitioner fails to establish prejudice under
Strickland. Specifically, the Court notes that the statement at issue was referenced in Dr. Harry’s
report, which was introduced into evidence by Petitioner, not the State. (Resp. Exh. D, P. 62; Resp.
Exh. A, P. 133). “‘[A] defendant may not take advantage of self-invited error nor complain about
matters he himself brings into the case.’” Crenshaw v. Dormire, 2006 WL 473535, at *4 (E.D. Mo.
Feb. 24, 2006) (quoting State v. Uka, 25 S.W.3d 624, 626 (Mo. App. 2000)). Under these
circumstances, the Court finds any claim that it was error to admit and consider the statement would
have been denied on appeal, and so Petitioner’s final claim of ineffective assistance of counsel must
fail. Ground 6 is denied.

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s First Amended Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 37) is DENIED, and his
claims are DISMISSED with prejudice. A separate Order of Dismissal will accompany this
Memorandum and Order.
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 (1998).

Dated this 26th day of March, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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