Moorehead v. Dormire

Filing 10

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Rufus Kenyon Morehead for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued inthis case. Signed by District Judge Audrey G. Fleissig on 8/27/2013. (KSH)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RUFUS KENYON MOREHEAD,
Petitioner,
v.
DAVE DORMIRE,
Respondent.

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Case No. 4:10CV01260 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner Rufus
Kenyon Morehead for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Petitioner
was convicted by a jury of two counts of statutory sodomy with a child under the age of 12.
The trial court found Petitioner to be a prior offender, and sentenced him to two concurrent
terms of 20 years’ imprisonment. For habeas relief, Petitioner claims that he received
constitutionally ineffective assistance of counsel in that appointed counsel (1) had a
conflict of interest and antagonistic relationship with him because he had tried to have her
removed from the case, and the District Public Defender denied Petitioner’s removal
request because the District Public Defender and defense counsel were involved in illegal
activities at the time; (2) failed to investigate, subpoena, and call the four witnesses
Petitioner had asked her to call; and (3) failed to point out to the trial court that the victim
did not identify Petitioner when asked at trial if she saw him in the courtroom, and failed to
make objections he asked her to make. Petitioner also claims that post-conviction counsel
was ineffective in connection with the filing of Petitioner’s amended motion for

post-conviction relief. For the reasons set forth below, federal habeas relief shall be
denied.
BACKGROUND
An indictment was filed against Petitioner on May 3, 2005, and a public defender
entered his appearance for Petitioner on that day. The public defender filed requests for
discovery and a motion to reduce bond. On May 12, 2005, another public defender
entered his appearance, and filed a motion for change of judge, that was granted, and an
endorsement of witnesses. On November 7, 2005, a third public defender entered an
appearance, and on November 23, 2005, a fourth public defender entered her appearance.
On June 29, 2006, trial was set for August 7, 2006.
On July 17, 2006, Petitioner wrote to the District Public Defender that a conflict of
interest had developed between him and his current counsel, that she had not done anything
on the case, had not contacted any of his witnesses, was rude to him, and hung up on him
during phone conversations. He asked that the entire office recuse itself from the case and
that the judge appoint a “Special Defender from another office.” (Doc. No. 1-1 at 7.)
The record reflects that on July 19, 2006, Petitioner also sent a letter to the trial judge
complaining about his counsel. The District Public Defender responded by letter dated
July 24, 2006, that Petitioner’s current counsel was an experienced criminal lawyer and
that he was not going to assign yet another lawyer to the case. On the day before the trial
began, defense counsel filed motions to suppress identification evidence and to suppress
evidence. Both motions were denied. On the day of trial, defense counsel filed a
memorandum in which Petitioner admitted to being a prior offender, and a motion to
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preclude the hearsay statements of the victim to law enforcement officers. The motion
was denied.
Five witnesses testified at trial. The victim, her mother, the doctor who examined
the victim the day after the crimes, and a police officer who interviewed the victim,
testified for the state; Petitioner testified on his own behalf. The Missouri Court of
Appeals summarized the evidence at trial as follows. The Court’s review of the trial
transcript confirms that this summary is accurate.
Viewed in the light most favorable to the verdicts, the evidence is as follows.
In late February 2005, Defendant lived with Dana M. (“Mother”) and her
children, including T.M., who was seven years old at that time. Defendant
had an intimate relationship with mother. On February 24, 2005, Defendant
watched Mother’s children for her while she was at work. The following
morning, while Mother was combing T.M.’s hair, T.M. told her that
Defendant had put his penis in her anus. Mother sent T.M. to school, and
later that day Mother and her sister took T.M. to the hospital for examination.
Dr. Ricci, who examined T.M., found that T.M.’s hymen was inflamed and
lacerated, and that her vagina had abrasions, which were consistent with the
insertion of a finger. Dr. Ricci also found that T.M. had a tear in her rectum,
consistent with the insertion of a penis. These injuries took place within
twenty-four hours of the examination on February 25, 2005.
(Resp. Ex. E.)
To the above, the Court adds that the victim’s mother testified that when she
picked the victim up from school the day after the crimes, she observed the victim sitting
on a pillow and the victim told her it was because her bottom hurt. When T.M. was on the
stand, she was asked if she saw the perpetrator, whom she called Kenyon, in the courtroom.
She was allowed to leave the witness box and walk around the courtroom. Petitioner was
seated at the defense table, but T.M. said she did not see Kenyon in the room. T.M. then
testified that Kenyon committed the charged crimes. (Resp. Ex. D at 172-74.) Petitioner
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testified that he never molested or touched the victim. He testified that before the
accusations, the victim’s mother’s ex-boyfriend wanted to move back in with the victim’s
mother. Petitioner believed that in light of this, his relationship with the victim’s mother
caused a problem for her, and that this led to the accusations.
Defense counsel filed motions for judgment of acquittal at the close of the state’s
evidence and at the close of all the evidence. Both motions were denied. As noted
above, the jury found Petitioner guilty of both counts, and the motion for acquittal
notwithstanding the verdict filed by defense counsel was denied.
Direct Appeal and State Postconviction Proceedings
The only issue raised on direct appeal related to the State’s closing argument. The
Missouri Court of Appeals rejected this claim and affirmed the judgment and sentences.
After Petitioner filed a pro se motion for state postconviction relief, counsel was appointed
and given an opportunity to file an amended motion. In an amended motion, Petitioner
asserted that defense counsel was ineffective and uncommunicative due to a conflict of
interest with Petitioner. He asserted that defense counsel was rude to him, had minimal
contact with him, hung up on him during phone conversations, was unprepared, and did not
call as witnesses Thomas Mooney and the victim’s teacher, 1 both of whom Petitioner
asked her to call. According to Petitioner, Mooney would have corroborated Petitioner’s
testimony that the victim’s mother made up the allegations in order to get Petitioner out of
the house before her ex-boyfriend came back to stay with her.
In his pro se motion for postconviction relief, Petitioner identified two additional
witnesses he had asked defense counsel to call; he did not explain how these witnesses
would have helped his case.
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Petitioner also asserted that his constitutional rights were violated by being forced to
go to trial without his counsel of choice. He stated that he would testify at an evidentiary
hearing that he wanted to retain a certain private criminal lawyer and that two other
witnesses would testify that they had the means and were willing to do that for Petitioner.
Petitioner would further testify that he told defense counsel this but counsel failed to notify
the court, such that a continuance to enable him to retain private counsel was not requested.
(Resp. Ex. H at 30-36.)
Petitioner next claimed that defense counsel was ineffective for failing to call
Mooney as a witness. According to Petitioner, Mooney would have testified that the
victim’s mother told him about her ex-boyfriend coming home and Petitioner having to
leave, and that this would have corroborated Petitioner’s theory that the victim’s mother
fabricated the allegations of sexual abuse to get rid of Petitioner before her ex-boyfriend
returned to live with her.
The state court denied the postconviction motion without an evidentiary hearing.
The court found that Petitioner’s first claim was without merit because Petitioner did “not
allege factually how his defense was prejudiced by the claimed lack of contact with trial
counsel and [Petitioner] does not allege how the taking of the depositions of Tommy
Mooney and the victim’s elementary school teacher would have affected the outcome of
his trial.” The Court further noted that there was no reason to assume that trial counsel did
not have available materials from the other public defenders who had represented
Petitioner in the case before her.

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In rejecting the counsel-of-choice claim, the state trial court noted that the letter of
July 19, 2006, made no mention of Petitioner’s ability or attempt to retain private counsel.
Lastly, the state court concluded that Petitioner’s claim of ineffective assistance of counsel
for failing to call Mooney as a witness was without merit because Mooney’s purported
testimony would have been inadmissible as hearsay, and speculation on his part as to why
the victim’s mother fabricated the allegations against Petitioner.
The Missouri Court of Appeals affirmed the denial of post-conviction relief,
concluding that the motion court=s findings and conclusions were not erroneous. The
appellate court stated that Petitioner’s first claim consisted of conclusory allegations of
both the existence of a conflict of interest with counsel and of prejudice. The appellate
court stated that Petitioner’s claim that counsel was ineffective in failing to ask for a
continuance so that Petitioner could hire private counsel failed for several reasons:
Petitioner did not plead facts demonstrating that a motion for a continuance would have
been granted or that the rejection of such a motion would have been reversible error; he
failed to allege facts demonstrating a total breakdown in communications with defense
counsel; he failed to allege that he had in fact obtained private counsel; he did not raise his
desire and efforts to obtain private counsel in a timely manner to the trial court; and he
failed to demonstrate prejudice, i.e., that the result of the trial would have been different
had counsel filed a motion for a continuance.
The Missouri Court of Appeals agreed with the trial court that the claim of
ineffective assistance of counsel for failing to call Mooney failed because Mooney’s
purported testimony would have been inadmissible hearsay and speculation. The
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appellate court stated that in any event, in light of the evidence of guilt, in particular the
medical evidence, Petitioner could not establish prejudice by showing a reasonable
probability of a different outcome had Mooney testified.
Federal Habeas Petition
Petitioner raises the claims he raised in his amended state postconviction motion.
In connection with the conflict-of-interest claim, he adds the allegation that the reason his
request for a special public defender was denied was because the District Public Defender
and defense counsel were involved in illegal activity at the time, and he submits newspaper
articles describing such involvement in an immigration marriage fraud ring. In
connection with the ineffective assistance of counsel claims he adds the fact that counsel
did not “point out” to the trial court that the victim did not identify Petitioner in the
courtroom, and that counsel did not call the four witnesses, including Mooney and the
victim’s teacher, whom he had identified in his pro se motion for postconviction relief.
Respondent argues that habeas relief must be denied with respect to these new
aspects of Petitioner’s claims because they were not raised in state court and are thus
procedurally defaulted. Respondent argues that the state courts’ adjudication of the
remaining claims was legally and factually reasonable, precluding federal habeas relief on
those claims.2

In his traverse, Petitioner for the first time asserts that the indictment did not properly
charge him with being a prior offender. A Traverse is not the proper pleading to raise
additional grounds for habeas relief. Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005);
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).

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DISCUSSION
Procedural Default
As Respondent argues, “[o]rdinarily, a federal court reviewing a state conviction in a
28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has
presented to the state court in accordance with state procedural rules.” See Arnold v.
Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (citation omitted). A state prisoner who
defaults on his federal claims in state court is generally barred from federal habeas relief
unless the prisoner can show cause for the default and prejudice resulting therefrom, or
[w]here, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.
Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012). Here Petitioner procedurally defaulted
the claims that defense counsel was not removed because she was involved with the District
Public Defender in illegal activities, that defense counsel was ineffective for failing to call as
witnesses individuals other than Mooney and the victim’s teacher,3 and that defense counsel
was ineffective in failing to point out to the trial court that the victim did not identify him in
the courtroom. Petitioner has made no showing of cause or prejudice for his procedural
default, or that postconviction counsel was ineffective, and so this Court will turn to the
merits of the claims that Petitioner properly preserved for habeas review.

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Upon the filing of the timely amended postconviction motion, any claims in the initial
pro se motion for postconviction relief were no longer before the motion court except to the
extent they were included in the amended motion. See Crawford Times v. Steele, No.
4:07cv1981 TCM, 2011 WL 1260063, at *6 (E.D. Mo. March 31, 2011).

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Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AAEDPA@),
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). AAEDPA effected a move toward greater deference in the ' 2254
courts’ review of state-court decisions.@ Brown v. Leubbers, 371 F.3d 458, 460 (8th Cir.
2004) (en banc). “[A] federal habeas court may overturn a state court’s application of
federal law only if it so erroneous that there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [Supreme Court] precedents.” Nevada
v. Jackson, 133 S.Ct. 1990, 1992 (2013) (citation omitted).
The factual findings of the state court also may be challenged in a ' 2254 petition,
but they are subject to an even more deferential review. Relief may be granted if
the state court adjudication “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)(2). Factual findings by the state
court “shall be presumed to be correct,” a presumption that will be rebutted only
by “clear and convincing evidence.” Id. ' 2254(e)(1).
Kinder v. Bowersox, 272 F.3d 532, 538 (8th Cir. 2001).
Ineffective Assistance of Counsel Claims
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

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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.) (quoting Strickland, 466 U.S. at 694), cert.
denied, 133 S.Ct. 611 (2012). “[W]hen a petitioner fails to demonstrate sufficient prejudice
from the alleged ineffectiveness, the court need not analyze the performance component.”
Carter v. Armontrout, 929 F.2d 1294, 1298 (8th Cir. 1991).
“Decisions relating to witness selection are normally left to counsel’s judgment and ‘this
judgment [should not] be second guessed by hindsight.’” Williams v. Armontrout, 912 F.2d
924, 934 (8th Cir. 1990). “However, so-called ‘strategic choices’ by counsel based on
incomplete investigation are not entitled to deference.” Lyons v. Luebbers, 403 F.3d 585, 594
(8th Cir. 2005); see also Nielsen v. Hopkins, 58 F.3d 1331, 1336 (8th Cir. 1995) (explaining that
the strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistances inappropriate if counsel’s strategic decisions are made after an
inadequate investigation). A habeas petitioner claiming that counsel was ineffective for failing
to call a certain witness, must show that had the individual testified, his testimony “would have
probably changed the outcome of the trial.” Hadley v. Groose, 97 F.3d 1131, 1135 (8th Cir.
1996).
Here, the Missouri Court of Appeals held that Mooney’s potential testimony would
have been inadmissible hearsay and speculation, and that even if defense counsel was deficient
in not calling him, the record fails to create a reasonable probability that Mooney’s testimony
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would have altered the outcome of Petitioner’s trial. As noted above, this Court’s question
under § 2254(d) is not whether it believes “the state court’s determination under the Strickland
standard was incorrect but whether that determination was unreasonable – a substantially
higher threshold.” Kennedy, 666 F.3d at 477. Upon review of the trial transcript, this Court
concludes that the state courts’ determination that Petitioner failed to show prejudice was not
contrary to or an unreasonable application of federal law. See, e.g., Cochran v. Dormire, 701
F.3d 865, 870 (8th Cir. 2012). Testimony by Mooney that the victim’s mother told him she
had a problem with Petitioner being in her house now that her ex-boyfriend wanted to come
back, and Mooney’s opinion that she therefor fabricated the accusations against Petitioner,
would likely not have been admissible. And even if it were, it was not unreasonable for the
state courts to determine that this testimony, given the evidence of guilt, would not have
changed the outcome of the trial. See, e.g., Hanes v. Dormire, 240 F.3d 694, 699 (8th Cir.
2001) (denying federal habeas relief where even if defense counsel’s decision not to call
witnesses was deficient, there was no reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different).
With respect to counsel’s failure to call the victim’s teacher, Petitioner has not
described what the teacher’s testimony would have been or how it would have likely changed
the result of the trial. Thus this aspect of Petitioner’s claim fails.
Petitioner’s overarching claim of ineffective assistance – that counsel had a conflict of
interest with Petitioner and thus did not prepare for or perform adequately during trial – also
fails. Petitioner does not raise a conflict-of-interest claim based upon defense counsel’s joint
representation of more than one defendant. Rather his claim is that there was a breakdown in
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communication with defense counsel, with the result that counsel provided constitutionally
inadequate representation. Such a claim is governed by the two-part Strickland standard.
Simmons v. Steele, No. 4:08–CV–1989 (CEJ), 2012 WL 718629, at *6 (E.D. Mo. March 6,
2012) (citing United States v. Young, 315 F.3d 911, 914 n.5 (8th Cir. 2003)). This Court’s
conclusion above that the state appellate court’s determination that Petitioner failed to satisfy
the prejudice step of Strickland with respect to the ways he claimed defense counsel was
ineffective due to the alleged conflict of interest, applies here too.
Right to Counsel of Choice
Petitioner’s preserved claims implicate his right to go to trial with counsel of his
choosing. “[A]n accused who is financially able to retain counsel of his own choosing
must not be deprived of a reasonable opportunity to do so.” United States v.
Gonzalez-Lopez, 399 F.3d 924, 929 (8th Cir. 2005). However, “[t]he right to retain
counsel of one’s choice is not absolute. . . . The right to choice of counsel must not
obstruct orderly judicial procedure or deprive courts of their inherent power to control the
administration of justice.” Id.; see also Williams v. Nix, 751 F.2d 956, 959 (8th Cir.
1985); Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir. 1984).
As noted above, the state appellate court stated that Petitioner did not tell the Court
in a timely manner that he wanted, and had the resources, to hire private counsel.
Petitioner does not dispute this. Rather Petitioner argues that he told this to defense
counsel and that she was ineffective in not asking for a continuance so that Petitioner could
obtain private counsel. Under the circumstances of this case, the Court cannot say that the
state appellate court’s adjudication of this claim was unreasonable or a misapplication of
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federal law. As the state court reasoned, it would not have been reversible error had the
court denied a motion for a continuance even if one were made. See Urquhart, 726 F.2d at
240 (holding that the state trial court did not violate a criminal defendant’s Sixth
Amendment right to counsel in not granting a motion for a continuance, made on the day of
trial, to enable him to retain private counsel, where he alleged that he told appointed
counsel three weeks earlier that he wished to do so).
Ineffective Assistance of Postconviction Counsel
As Respondent argues, this claim fails because criminal defendants do not have a
federal constitutional right to counsel in state postconviction proceedings. See Coleman v.
Thompson, 501 U.S. 722, 757 (1991) (holding that there is no cognizable habeas claim for
ineffective assistance of postconviction counsel because no constitutional right to counsel
exists in postconviction proceedings); Cornell v. Nix, 976 F.2d 376, 381 (8th Cir. 1992)
(same); Battle v. Roper, No. 4:06CV104–DJS, 2009 WL 799604, at *14 (E.D. Mo. March 24,
2009) (same).
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. '2253(c). See Miller-El v. Cockrell, 537 U.S.
322, 338 (2003) (standard for issuing a Certificate of Appealability) (citing Slack v. McDaniel,
529 U.S. 473, 484 (2000)).

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Accordingly,
IT IS HEREBY ORDERED that the petition of Rufus Kenyon Morehead for a writ of
habeas corpus 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 27th day of August, 2013.

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