Robinson v. Dormire

Filing 11

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the petition of Stanley Robinson for a writ of habeas corpus relief is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/26/2013. (NCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STANLEY ROBINSON,
Petitioner,
v.
DAVE DORMIRE,
Respondent.

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Case No. 4:10CV01205 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner Stanley
Robinson for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Petitioner was
convicted by a jury of first degree robbery, armed criminal action, and resisting arrest. He
was sentenced as a persistent offender to a total of 30 years’ imprisonment. For habeas
relief, Petitioner claims that (1) the prosecutor’s use of an analogy comparing Petitioner,
who had pled guilty to felonies on six prior occasions, to a car salesman who had
previously sold six faulty cars violated Petitioner’s right to due process because this
analogy was an improper comment on Petitioner’s propensity to commit robbery; and (2)
Petitioner received constitutionally ineffective assistance of counsel because defense
counsel failed to request a hearing on his motion to suppress two eyewitness identifications
of Petitioner. For the reasons set forth below, federal habeas relief shall be denied.

BACKGROUND
Trial
The evidence adduced at trial established the following. On the evening of August
17, 2004, Greta Brotherton went to visit the home of Brenton Gary, her boyfriend.
Brotherton parked across the street from Gary’s home near a street lamp, so the area was
well lit. As she was taking her luggage out of her car, Petitioner approached her and asked
what time it was. When she responded, Brotherton looked at Petitioner and had an
opportunity to see him. Petitioner then started to walk away.
As Brotherton was climbing the stairs to Gary’s home, Petitioner offered to help her
with her luggage, but she declined. Petitioner went up a grassy area next to the stairs and
reached the top of the stairs at the same time as Brotherton. Brotherton looked closely at
Petitioner when he met her at the top of the stairs. Petitioner approached her and
demanded that she give him her property. Then he pulled out a knife and repeated his
demand. Brotherton gave Petitioner her purse and rolling travel bag. Petitioner
demanded she give him everything else while jabbing his knife in the air, so she gave
Petitioner her watch and the jewelry she was wearing, including a ring. Petitioner then
told her to run, which she did. Petitioner chased her for a time, then turned and went in the
opposite direction.
When Brotherton no longer heard footsteps behind her, she looked back and saw
Petitioner running in the opposite direction. She then returned to her boyfriend’s house
for help. Brotherton told her boyfriend that she had been robbed and pointed towards
Petitioner as he rounded a corner. Gary ran in the direction Brotherton pointed him, and
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he saw Petitioner walking down the street pulling a rolling suitcase. He did not see
anyone else in the area. When Petitioner noticed Gary, he picked up the luggage and ran.
Gary yelled back to Brotherton, who had been following Gary, to get help. She returned
to Gary’s house and told Gary’s brother that Gary needed help and that she had just been
robbed.
Meanwhile, Gary had lost sight of Petitioner when the latter approached a house,
but Gary continued to walk around the house trying to find him. Gary spotted Petitioner
knocking on the back door of the house. Petitioner told Gary that he had not done
anything. Petitioner drew a knife when Gary ran towards him. Seeing Petitioner draw a
knife, Gary picked up a metal chair and struck Petitioner with it several times as Petitioner
tried to get into the house. Petitioner’s aunt let him into the house and they succeed in
closing the door on Gary.
Brotherton and Gary’s brother got to the house as the police arrived. Brotherton
waited with Gary on a corner near the house to see if the police would find Petitioner and
recover her things. The police officers canvassed the area looking for Petitioner and
found Brotherton’s suitcase in the house. An officer then spotted Petitioner hiding under
the front deck holding a knife and officers moved around the deck to apprehend him.
Petitioner dropped the knife when the police directed him to do so. Brotherton and Gary
saw Petitioner charge out from under the deck and struggle to get away from the officers.
The officers finally succeeded in handcuffing Petitioner, and when they pulled him off of
the ground, Brotherton immediately, and without prompting from any of the police
officers, identified Petitioner as the man who robbed her. When Brotherton identified
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Petitioner she was standing about 50 feet away from him, several police officers were
standing around Petitioner, and Petitioner was handcuffed. After Brotherton identified
Petitioner as the perpetrator, Gary then stated that Petitioner was the man he had
confronted earlier. The police found Brotherton’s ring, watch, and cell phone under the
porch that Petitioner was found hiding under.
Brotherton and Gary identified Petitioner at trial as the perpetrator. Petitioner had
filed a motion at the start of the trial to suppress the out-of-court and any in-court
identifications by Brotherton and Gary on the ground that the police procedures were an
impermissibly suggestive show-up and created a substantial risk of misidentification and
the identifications were unreliable. The court denied the motion without an evidentiary
hearing. Petitioner renewed the motion twice during trial, once at the end of the state’s
case and once at the end of the case for the defense. The court denied the motion each
time.
Petitioner testified on his own behalf, presenting an alibi defense. He admitted to
pleading guilty on six prior occasions to a total of seven felonies, including three
convictions for robbery. Prior to closing arguments, the jury was instructed to consider
Petitioner’s previous convictions for the sole purpose of deciding his believability and not
as evidence that Petitioner was guilty of the offense with which he was then charged.
During his rebuttal closing argument, the prosecutor analogized Petitioner to a car
salesman. The part of the prosecutor’s argument that is pertinent to Petitioner’s due
process claim is as follows:

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[Prosecutor]: About the defendant’s credibility you can consider all those
priors to his credibility. Look at it this way, if you went to a car lot and you
spoke to a guy that sells cars and you found out this guy sold six cars that
were faulty in the past month and you go in and he goes “this is a quality
automobile, buy this car” is anybody in this jury box gonna give that car
dealer their money?
[Defense Counsel]: Objection, Your Honor.
[Prosecutor]: And it’s the same thing here. He has zero credibility.
(Resp. Ex. E at 495.) Petitioner moved for a mistrial based on this comment, but the court
denied the motion.
Direct Appeal and State Postconviction Proceedings
On direct appeal, the only issue Petitioner raised was that the prosecutor argued that
Petitioner had a propensity to commit robbery rather than that he lacked credibility as a
witness when the prosecutor analogized Petitioner, during closing argument, to a car
salesman who had sold six faulty cars.
The Missouri Court of Appeals rejected Petitioner’s argument noting that although
it is improper to use prior convictions as evidence of guilt or propensity to commit crimes,
it is permissible to use prior convictions to attack the defendant’s truthfulness and
credibility in his testimony. The Missouri Court of Appeals noted that, although the
analogy the prosecutor used was “imperfect,” the prosecutor focused on Petitioner’s
credibility not on his propensity to commit other crimes. The appellate court also noted
that the evidence of Petitioner’s guilt was overwhelming. (Resp. Ex. F at 4.)
In his amended motion for post-conviction relief, Petitioner raised two claims of
ineffective assistance of counsel. First, he argued that his trial counsel was ineffective in
failing to request a hearing on the motion to suppress the eyewitness identifications of
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Petitioner by Brotherton and Gary. He argued that if trial counsel had requested a hearing,
the court would have suppressed the identifications because they were the product of an
impermissibly suggestive procedure and were unreliable. Petitioner argued that the
identifications were impermissibly suggestive because Brotherton and Gary identified
Petitioner when viewing him from about 50 feet away in poor lighting while he was
handcuffed and surrounded by police officers. He also argued that neither had a good
opportunity to view the assailant. Second, Petitioner claimed that his trial counsel was
ineffective for failing to object during the state’s case to the admission of the out-of-court
identifications made by Brotherton and Gary. (Resp. Ex. I at 21-34.)
The state court denied the postconviction motion without an evidentiary hearing.
The court found that Petitioner’s first claim was without merit because the identifications
were not the result of an impermissibly suggestive procedure, nor were they unreliable.
The court found that Brotherton had numerous opportunities to view the person who
robbed her; that although the robbery took place at night, the area was well lit according to
Brotherton; that the crime and identification occurred within a brief period of time; and that
Brotherton immediately identified Petitioner as the man who robbed her. The court noted
that Petitioner’s trial counsel filed a motion to suppress the identifications at the beginning
of the trial and renewed the motion during trial. The court held that promptly showing a
suspect to a witness is a proper procedure so long as the police do not unduly pressure the
witness to make a positive identification. The court rejected Petitioner’s second claim
because counsel could not be ineffective for failing to make a meritless objection. (Resp.
Ex. I at 37-40.)
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The Missouri Court of Appeals affirmed the denial of postconviction relief,
concluding that the motion court’s findings and conclusions were not clearly erroneous.
On Petitioner’s first claim, the appellate court noted that “[p]rompt identification of a
freshly-apprehended suspect by eyewitnesses greatly enhances the reliability of the
identification.” The court expressed skepticism as to whether the situation presented in
this case was a show-up. It noted that Brotherton spontaneously identified Petitioner as
the man who robbed her, and Gary immediately confirmed Brotherton’s identification of
Petitioner. Finding nothing about the procedures to be impermissibly suggestive, the
court did not evaluate the reliability of the identifications. (Resp. Ex. J at 6-9.)
Having found that the out-of-court identifications were clearly admissible and that
the trial court properly denied the motion to suppress, the Missouri Court of Appeals noted
that counsel could not be deemed ineffective for failing to object to the out-of-court
identification when that objection would have been meritless. Id. at 8.
Federal Habeas Petition
As noted above, Petitioner raises two claims in his federal habeas petition. First,
Petitioner raises the claim he made on direct appeal regarding the prosecutor’s closing
argument. Second, Petitioner claims ineffective assistance of counsel based on his trial
counsel’s failure to request a hearing on his motion to suppress the eyewitness
identifications by Brotherton and Gary. Respondent argues that habeas relief should be
denied because the state courts’ determinations of the issues were legally and factually
reasonable.

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DISCUSSION
Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
when a claim has been adjudicated on the merits in state court, an application for a writ of
habeas corpus cannot be granted unless the state court's 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 proceedings.
28 U.S.C. ' 2254(d).
The “contrary to” clause is satisfied if a state court has arrived at a conclusion opposite
to that reached by the Supreme Court on a question of law or confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent but arrives at the opposite result.
Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (citing Williams v. Taylor, 529 U.S. 362, 40-06
(2000)). A state court “unreasonably applies” clearly established federal law when it
“identifies the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the particular state prisoner’s case.”
Williams, 529 U.S. at 413; see also Linehan v. Milczark, 315 F.3d 920, 924 (8th Cir. 2003).
A case cannot be overturned merely because it incorrectly applies federal law; the
application must also be “unreasonable.” Wright v. Bowersox, 720 F.3d 979, 985 (8th Cir.
2013). “The factual findings of the state court also may be challenged in a ' 2254 petition,

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but they are subject to an even more deferential review.” Kinder v. Bowersox, 272 F.3d 532,
538 (8th Cir. 2001).
Ineffective Assistance of Counsel Claim
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must not
only show that counsel=s performance was deficient, but must also show that he was prejudiced
by his counsel’s incompetence. Strickland v. Washington, 466 U.S. 668, 694 (1984). To
satisfy the prejudice prong, a petitioner must show “‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. . . . A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
Kennedy v. Kemna, 666 F.3d 472, 477 (8th Cir. 2012) (quoting Strickland, 466 U.S. at 694).
Petitioner contends that his trial counsel was ineffective for failing to request a hearing on
his motion to suppress the identifications made by Brotherton and Gary. Petitioner argues that
the “show-up” was impermissibly suggestive because Petitioner was hand-cuffed and
surrounded by police officers when Brotherton identified Petitioner as her assailant. The
Missouri Court of Appeals noted that Brotherton was present with Gary at the scene when the
police officers found Petitioner hiding under his aunt’s porch. Brotherton spontaneously
identified Petitioner as her assailant, and Gary then identified Petitioner as the man he had a
confrontation with earlier. The Missouri Court of Appeals held that there was nothing to
indicate that the police procedures or actions were impermissibly suggestive.
This Court concludes that the Missouri Court of Appeals’ rejection of Petitioner’s
ineffectiveness claim was not unreasonable. First, the state courts’ determination of the facts is
supported by the evidence presented at trial. Second, the legal conclusion that the
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identification procedure was not unnecessarily suggestive was not unreasonable. “Absent
special elements of unfairness, prompt on-the-scene confrontations do not entail due process
violations.” United States v. King, 148 F.3d 968, 970 (8th Cir. 1998) (citation omitted).
“Necessary incidents of on-the-scene identifications, such as the suspects being handcuffed and
in police custody, do not render the identification procedure impermissibly suggestive.” Id.
(citing United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994)). Brotherton identified
Petitioner spontaneously without any prompting from the police, and Gary identified Petitioner
as the man he had confronted earlier that evening.
Moreover, Petitioner cannot show prejudice as required by Strickland. As the motion
court noted, the Missouri Court of Appeals stated on direct appeal that the evidence of
Petitioner’s guilt was “overwhelming” when it reviewed the case on direct appeal. The police
found Petitioner hiding under his aunt’s front porch with a knife. A knife had been used in the
robbery. The police also found Brotherton’s stolen ring and watch under the porch, and inside
the house the police found Brotherton’s stolen rolling suitcase. This Court concludes that it
was not unreasonable for the trial court to determine that Petitioner could not show ineffective
assistance of counsel in failing to request a hearing on the motion to suppress the two
identifications because the evidence of Petitioner’s guilt was overwhelming.
Prosecutor’s Closing Argument
To prevail on a due process claim based on an allegedly improper comment by a
prosecutor in closing argument, a habeas petitioner must show that the prosecutor’s
remarks were “so inflammatory and so outrageous that any reasonable trial judge would
have sua sponte declared a mistrial.” Kennedy, 666 F.3d at 481 (citation omitted). “The
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relevant question is whether the prosecutor’s comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Darden v.
Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637
(1974)).
To determine whether a prosecutor’s statement infected Petitioner’s trial with
unfairness, the court examines the totality of the circumstances. Kellogg v. Skon, 176
F.3d 447, 451 (8th Cir. 1999); Antwine v. Delo, 54 F.3d 1357, 1363 (8th Cir. 1995) (listing
factors including (1) the type of prejudice that arose from the argument, (2) defense
counsel’s efforts to minimize the effect in his argument, (3) whether jury was properly
instructed in the jury instructions, and (4) whether there is a reasonable probability that the
outcome would have been different).
Petitioner argues that the prosecutor’s analogy asked the jury to consider
Petitioner’s prior convictions as substantive evidence of his guilt or as evidence of his
propensity to commit robbery. As stated above, the Missouri Court of Appeals noted that
the prosecutor’s “imperfect” analogy and argument focused on the defendant’s credibility,
not on any propensity to commit robberies or other crimes. Courts are urged to exercise
caution in inferring a negative consequence from a prosecutor’s statement during closing
arguments:
[C]losing arguments of counsel, are seldom carefully constructed in toto
before the event; improvisation frequently results in syntax left imperfect
and meaning less than crystal clear. While these general observations in no
way justify prosecutorial misconduct, they do suggest that a court should not
lightly infer that a prosecutor intends an ambiguous remark to have its most
damaging meaning or that a jury, sitting through lengthy exhortation, will
draw that meaning from the plethora of less damaging interpretations.
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James v. Bowersox, 187 F.3d 866, 870 (8th Cir. 1999) (quoting Donnelly, 416 U.S. at
646-47).
As Respondent argues, a prosecutor may use a defendant’s prior convictions in
arguing the defendant lacks credibility. See United States v. Collier, 527 F.3d 695, 700
(8th Cir. 2008) (“prior convictions are highly probative of credibility ‘because of the
common sense proposition that one who has transgressed society’s norms by committing a
felony is less likely than most to be deterred from lying under oath’”) (quoting United
States v. Chauncey, 420 F.3d 864, 874 (8th Cir. 2005)). And the jury was properly
instructed to only consider Petitioner’s prior convictions for credibility purposes. This
Court concludes that the state courts’ determination that the prosecutor’s comments did not
“so infect[] the trial with unfairness as to make the resulting conviction a denial of due
process,” was not contrary to or an unreasonable application of federal law. See Darden,
477 U.S. at 181 (citation omitted).
The Missouri Court of Appeals also held that Petitioner had not demonstrated a
reasonable probability that the verdict would have been different absent the prosecutor’s
remarks because the evidence of guilt was overwhelming. Upon review of the trial
transcript, this Court concludes that the state court’s determination that Petitioner failed to
show prejudice, given the evidence of guilt, was not contrary to or an unreasonable
application of federal law. See, e.g., Kennedy, 666 F.3d at 475 n.2, 481-82 (denying
federal habeas relief where prosecutor used a statement admitted for the limited purpose of
explaining subsequent police action as substantive evidence of guilt because the state court
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reasonably concluded that there was significant evidence of petitioner’s guilt and therefore
no prejudice).
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court=s
assessment of Petitioner=s claims for habeas relief debatable or wrong, for purposes of issuing
a Certificate of Appealability under 28 U.S.C. '2254(d)(2). See Miller-El v. Cockrell, 537
U.S. 322, 338 (2003) (standard for issuing a Certificate of Appealability) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Stanley Robinson for a writ of habeas
corpus relief is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in
this case.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 26th day of September, 2013.

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