Herron v. Norman

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of James Herron for a writ of habeas corpus (ECF No. 1) is DISMISSED without further proceedings. IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253, no certificate of appealab ility shall issue in this cause inasmuch as Petitioner has failed to make a substantial showing that he has been denied a constitutional right. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Terry I. Adelman on 3/24/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES L. HERRON,

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Petitioner,
v.
JEFF NORMAN, et al.1,
Respondents.

No. 4:10CV2046 TIA

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of James L. Herron for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. The parties consented to the jurisdiction of the undersigned
pursuant to 28 U.S.C. § 636(b).
Procedural History
Petitioner, James Herron, is currently incarcerated at the Southeast Correctional Center
located in Charleston, Missouri. On September 20, 2002, after a bench trial, the Circuit Court of
St. Louis City found Petitioner guilty of murder in the second degree (Count I), two counts of
robbery in the first degree (Counts III and V), and three counts of armed criminal action (Counts
II, IV, and VI). (Resp’t’s Ex. 2 p. 54); State v. Herron, 136 S.W.3d 126, 127 (Mo. Ct. App.
2004). The court further found Petitioner to be a prior and persistent offender and sentenced him

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Because Petitioner is also challenging a consecutive sentence to be served in the future,
Missouri Attorney General Chris Koster should be named as a proper party respondent. 28
U.S.C. § 2254, Rule 2(b). Future pleadings shall reflect this change in the caption.

to life imprisonment on each count, with Counts I, III, IV, V, and VI to be served concurrently,
and Count II to be served consecutively to Count I. (Id. at 55-59); Herron, 136 S.W.3d at 127.
Petitioner appealed the conviction and sentence, and the Missouri Court of Appeals found
that the judgment was premature and void, thus dismissing the appeal and remanding to the trial
court to allow Petitioner the opportunity to file a motion for a new trial. Herron, 136 S.W.3d at
128. On December 6, 2004, the trial court re-issued the prior sentence and judgment. (Resp’t’s
Ex. 8 pp. 12-16). Petitioner appealed, and on November 1, 2005, the Missouri Court of Appeals
affirmed the judgment. (Resp’t’s Ex. 11); State v. Herron, 181 S.W.3d 142 (Mo. Ct. App. 2005).
Petitioner also filed a motion to vacate, set aside or correct the judgment or sentence
under Missouri Supreme Court Rule 29.15 on May 15, 2006. (Resp’t’s Ex. 13 pp. 6-58) He filed
an amended motion under Rule 29.15 on October 11, 2006. (Resp’t’s Ex. 13 pp. 59-70) The
motion court denied the post-conviction motion after an evidentiary hearing, and the Missouri
Court of Appeals affirmed. (Resp’t’s Ex. 13 pp. 92-100); Herron v. State, 308 S.W.3d 308 (Mo.
Ct. App. 2010). Petitioner then filed the instant petition for habeas relief in federal court on
October 27, 2010.
Petitioner’s Claims
In his Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, Petitioner raises two
claims for federal habeas relief:
(1)

The charging document on Counts III and IV, first degree robbery and armed
criminal action, alleged that Petitioner stole U.S. currency from the victim;
however, he stole crack cocaine, not U.S. currency, which establishes his factual
innocence of counts III and IV; and

(2)

Petitioner received ineffective assistance of trial, appellate, and post-conviction
counsel in that:
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(a)

trial counsel coerced Petitioner into having a bench trial instead of a jury
trial;

(b)

trial counsel conceded guilt in closing argument;

(c)

trial counsel failed to object to the admission of bloody fingerprints and a
palm print found at the scene but not disclosed to Petitioner;

(d)

trial counsel failed to interview, depose, and call witnesses;

(e)

trial counsel failed to challenge the sufficiency of the evidence on counts
III and IV;

(f)

trial counsel failed to challenge the competency of Dawn and William
McIntosh;

(g)

trial counsel failed to conduct proper discovery and investigation into the
facts of the case;

(h)

post-remand counsel waived the filing of a motion for new trial against
Petitioner’s explicit direction; and

(i)

appellate counsel (actually post-conviction counsel) failed to raise the
issues of counsel’s failure to file a motion for new trial and concession of
Petitioner’s guilt to charges that varied from the indictment.
Legal Standards

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts
review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681
(8th Cir. 1999). “[A] district court shall entertain an application for a writ of habeas corpus . . .
only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). Further, a federal court may not grant
habeas relief unless the claim adjudicated on the merits in state court “‘resulted in a decision that

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was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.’” Owens, 198 F.3d at 681 (quoting 28
U.S.C. § 2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the
petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court
factual findings presumed to be correct where fairly supported by the record).
“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With regard to the
“unreasonable application” clause, “a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413; see also
Bucklew v. Luebbers 436 F.3d 1010, 1016 (8th Cir. 2006); Rousan v. Roper, 436 F.3d 951, 956
(8th Cir. 2006). In other words, “a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather that application must also be
unreasonable.” Williams, 529 U.S. at 411.
To establish ineffective assistance of counsel, a petitioner must satisfy a two prong test.
Petitioner must demonstrate that counsel’s performance was “deficient” and that such deficient
performance “prejudiced” his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
prejudice prong requires Petitioner to prove that but for counsel’s deficiency, the outcome of his
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trial would have been different absent counsel’s error. Id. at 694; Bucklew, 436 F.3d at 1016. In
other words, Petitioner must demonstrate “that counsel’s errors were so serious that they
rendered the proceedings fundamentally unfair or the result unreliable.” Bucklew, 436 F.3d at
1016 (citation omitted). Further, “[j]udicial scrutiny of counsel’s performance is highly
deferential, indulging a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional judgment.” Id. (citation omitted). Because a habeas petition claiming
ineffective assistance of counsel involves mixed questions of law and fact, legal conclusions are
reviewed de novo, and state court findings of fact are presumed to be correct under 28 U.S.C.
2254(d). Sloan v. Delo, 54 F.3d 1371, 1383 (8th Cir. 1995) (citation omitted).
IV. Discussion
Claim One
Petitioner first contends that the charging document on Counts III and IV, first degree
robbery and armed criminal action, alleged that Petitioner stole U.S. currency from the victim.
However, he stole crack cocaine, not U.S. currency, which establishes his factual innocence of
counts III and IV. The Missouri Court of Appeals addressed this claim and found:
On February 20, 2001, defendant, James Herron, along with accomplices,
murdered Marnette Clayton by stabbing her and removed four rocks of cocaine
from her bra, which he and the accomplices smoked. Defendant and his
accomplices also stabbed Ms. Clayton’s boyfriend, Craig Young, injuring him, and
took his pager, cell phone, and $500.00.
Counts I through IV of the indictment charged offenses in which Ms.
Clayton was the victim. Specifically, Count III charged defendant and the
accomplices with the Class A felony of robbery in the first degree in that defendant
and the accomplices “forcibly stole US currency owned by Marnette Clayton.”
In his opening statement, the prosecutor told the judge that four rocks of
cocaine were stolen from Ms. Clayton, and he did not indicate any money was
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taken from her. At trial, two of the accomplices testified to the theft of four rocks
of cocaine from Ms. Clayton. There was no evidence that any money was taken
from her.
At the conclusion of the state’s case, defendant made a motion for acquittal
that was solely directed to the first-degree murder count. Thereafter, defendant
rested. In his closing argument, the prosecutor argued that defendant and his
accomplices coolly reflected because Ms. Clayton had the four rocks of cocaine
and Mr. Young had the $500.00 that defendant and accomplices wanted. During
his closing argument, defense counsel focused only on whether defendant
deliberated in Ms. Clayton’s death. He added:
That’s the only issue in this case as I see it, okay? We’re not
contesting that my client wasn’t involved in the robbery and wasn’t
involved in the death, but the extent of his involvement, that is the
issue for us in this case.
He concluded:
And what I’m asking the Court to do is find my client guilty of
murder in the second degree, armed criminal action, robbery first,
robbery first, with armed criminal action for what he did to and not
for what the state infers what’s in his state of mind. Thank you.
...
In his first point, defendant asserts the trial court plainly erred in entering
judgment on Counts III and IV because the state did not show that defendant and
his accomplices forcible[sic] stole “US Currency” from Ms. Clayton, as charged in
the indictment; rather, the evidence showed that crack cocaine, and not money,
was forcibly taken from Ms. Clayton. Defendant does not articulate in either the
point or the argument under the point how his ability to prepare a defense was
prejudiced.
Defendant failed to raise this error in his motion for acquittal. Accordingly,
we may only review for plain error. See State v. Bockes, 943 S.W.2d 352, 352
(Mo. App. 1997). We will not review a claim of plain error under Rule 30.20
unless there are substantial grounds for believing that manifest injustice or
miscarriage of justice has resulted. State v. Chaney, 967 S.W.2d 47, 59 (Mo. banc
1998), cert. denied, 525 U.S. 1021 (1998). There are no extraordinary
circumstances in this case to justify reviewing this argument as a matter of plain
error. State v. Mosley, 980 S.W.2d 1, 3 (Mo. App. 1998). The variance between
the information and the proof on which the case was submitted at trial did not
prejudice defendant’s right to prepare an adequate defense of the charges against
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him because defendant conceded the robbery and defended only on the question of
deliberation with respect to the first-degree murder charge. See State v. Lee, 841
S.W.2d 648, 651 (Mo. banc 1992); State v. Pride, 1 S.W.3d 494, 503 (Mo. App.
1999). Point one is denied.
(Resp’t’s Ex. 11 pp. 2-4)
Respondent contends that this claim is procedurally barred from federal review because
Petitioner failed to raise the claim in the motion for acquittal, and no miscarriage of justice
resulted that would warrant review. Alternatively, Respondent argues that Petitioner’s claim
lacks merit. The undersigned finds that the decision of the state court was not contrary to, nor
did it involve an unreasonable application of, clearly established federal law.
The Eighth Circuit Court of Appeals has held that “[a]n issue that receives plain-error
review on direct appeal in state court is not procedurally barred from review under the AEDPA.”
Rousan v. Roper, 436 F.3d 951, 962 n.4 (8th Cir. 2006) (citation omitted). However, in
conducting federal habeas review, the court may not conduct its own plain error review de novo;
instead, review of the state court decision is deferential and is limited to federal constitutional
errors. James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). “The summary nature of the
Missouri Court of appeals opinion does not affect this standard of review.” Id. (citation omitted).
“To justify federal habeas relief, the state court’s application of governing federal law must be
shown to be objectively unreasonable.” Little v. Steele, No. 4:07CV357-DJS, 2010 WL
1254628, at *4 (E.D. Mo. March 24, 2010) (citation omitted).
Here, Petitioner argues that he is innocent of first degree robbery and armed criminal
action as charged in Counts III and IV because he stole crack cocaine from Marnette Clayton and
not US Currency, as erroneously stated in the indictment. Petitioner asserts that the evidence was

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insufficient to establish guilt, beyond a reasonable doubt, that he stole US Currency from victim
Clayton.
A federal court’s review of a sufficiency of the evidence claim “is limited to determining
‘whether, 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.’”
Gibbs v. Kemna, 192 F.3d 1173, 1175 (8th Cir. 1999) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). Here, the record indicates that there was sufficient evidence to support the
conviction of first degree robbery and armed criminal action in Counts III and IV with regard to
the victim Clayton.
Missouri Revised Statutes § 569.020.1 provides in pertinent part, “[a] person commits the
crime of robbery in the first degree when he forcibly steals property and in the course thereof he,
or another participant in the crime, (1) [c]auses serious physical injury to any person; or (2) [i]s
armed with a deadly weapon . . . .” Petitioner acknowledges that the evidence at trial established
that he forcibly stole property from Ms. Clayton. (Petition A(3), ECF No. 1) The fact that the
“property” was different in the charging document from what he actually stole does not alter the
fact that the prosecution proved the essential elements of robbery in the first degree. Indeed, the
Supreme Court of Missouri has stated that a variance between the information and the jury
instruction causes reversible error only where the variance is material and prejudicial to the
defendant. State v. Lee, 841 S.W.2d 648, 650 (Mo. 1992). Further, “[a] variance is prejudicial
only if it affects the appellant’s ability adequately to defend against the charges presented in the
information and given to the jury in the instructions.” Id.

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Although Petitioner received a bench trial, not a jury trial, the evidence presented
demonstrated that Petitioner held down Ms. Clayton while she was being stabbed, and Petitioner
eventually cut the victim’s throat with scissors, put a plastic bag over her head, and stuffed her in
a laundry bag. Petitioner and his accomplices also took four rocks of crack-cocaine out of the
victim’s bra and smoked it. (Resp’t’s Ex. 1 pp. 155-58, 197)
Here, Petitioner does not challenge the sufficiency of the evidence as submitted to the
court. Indeed, Petitioner’s defense acknowledged that Petitioner played a role in the events but
argued that the charge of first degree murder was inappropriate and that Petitioner’s sentence
should be less than life. (Id. at 290-92) The variance between the indictment and the proof of the
case “did not prejudice [Petitioner’s] ability adequately to defend against the charges brought.”
Lee, 841 S.W.2d at 651. Therefore, the Court finds that the discrepancy between “US Currency”
in the indictment and “crack cocaine” in the evidence did not prejudice Petitioner’s defense, and
the evidence was sufficient to support the conviction for first degree robbery and armed criminal
action in Counts III and IV. Thus, the state court’s determination was not contrary to, nor did it
involve an unreasonable application of, federal law, and the Court will deny Petitioner’s first
habeas claim as meritless.
Claim Two: Ineffective Assistance of Counsel
A. Failure to Object to Evidence
Plaintiff raises nine separate grounds of ineffective assistance of counsel. He raised these
claims in his pro se and amended motions for post-conviction relief. However, he raised only one
of those claims in his post-conviction appeal. On appeal, Petitioner claimed that trial counsel was
ineffective for failing to object to the undisclosed evidence of Petitioner’s bloody fingerprints and
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a palm print found at the scene. (Resp’t’s Ex. 14 p. 19) In affirming the motion court’s
conclusion that in light of the overwhelming evidence of guilt, there was no reasonable probability
that the result of the trial would have been different had trial counsel objected, the Missouri Court
of Appeals found:
. . . In order to prevail on a claim of ineffective assistance of counsel, the
movant must be able to show that counsel’s performance did not conform to the
degree of skill, care, and diligence of a reasonably competent attorney, and that
this deficient performance prejudiced the movant. . . . This Court does not need to
address both components of the inquiry if the movant makes an insufficient
showing on one. Strickland v. Washington, 466 U.S. 668, 697 (1984);
Sidebottom v. State, 781 S.W.2d 791, 796 (Mo. banc 1989).
Assuming arguendo that trial counsel’s performance was deficient, Movant
was not prejudiced by this “deficient” performance. The evidence of Movant’s
guilt presented at his trial was overwhelming. Craig Young testified that when he
went to the apartment of the Movant’s girlfriend, Melissa Mozee, to bring Ms.
Clayton some food, Mozee let him in, where he was attacked by Movant, and
wrestled to the ground by Movant, Mozee, and Dawn and Tyrone MacInitosh, and
where his mouth was taped shut and his hands and feet taped together. Mr. Young
testified that Movant stabbed him in the back of the neck and in his throat, and
held him down while Mozee also stabbed him. Dawn MacIntosh testified that
Mozee asked her to help kill Ms. Clayton and Mr. Young, and that when Mozee
started stabbing Ms. Clayton, the latter called for Movant to help her. Instead,
Movant helped Mozee kill Ms. Clayton. Dawn MacIntosh testified at trial that
Movant held Ms. Clayton down, that he cut her throat with scissors, and that he
put a plastic bag over her head and wrapped a telephone cord around her neck.
She stated that Mozee and Movant took crack cocaine from Ms. Clayton’s
clothing, put the body in a plastic bag, then put the bag into another bag, and put it
on the porch. She further testified at trial that Movant and Mozee took money
from Mr. Young as he lay taped up on the floor. Tyrone MacIntosh testified that
on the night of the crimes, he was playing cards with Movant in a bedroom when
he heard a call for help. He stated that Movant ran to help Mozee, and that he saw
Mozee and Movant stab Ms. Clayton while his wife held Ms. Clayton’s legs down.
He further testified at trial that he saw Movant and Mozee put a bag over Ms.
Clayton’s head and wrap a telephone cord around her neck, and take drugs from
her body after she had ceased to struggle. Mr. MacIntosh also stated that when
Mr. Young entered the apartment with food for Ms. Clayton, Movant and Mozee
rushed him, and that all four of them subdued him. He said that Movant and
Mozee took drugs and money from Mr. Young, and that he and his wife got some
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of the money. The State’s evidence was uncontradicted. As the motion court
correctly found, the evidence of Movant’s guilt is overwhelming. In light of the
overwhelming and uncontradicted evidence against Movant, if the evidence of
Movant’s bloody fingerprints had been excluded, there was no reasonable
probability that the outcome of the trial would have been different, which is what is
required to establish prejudice under Strickland. . . . Thus Movant did not establish
that he was prejudiced by trial counsel’s failure to object to the testimony about
the bloody fingerprints. Movant did not establish the second prong of the
Strickland test. Point denied.
(Resp’t’s Ex. 17 pp. 3-5)
As previously stated, habeas relief may not be granted unless the claim adjudicated on the
merits in state court “‘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.’” Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999) (quoting 28 U.S.C. § 2254(d)(1)).
“Therefore, we will not grant [petitioner’s] habeas petition unless the state court’s decision in this
case was contrary to, or an unreasonable application of, the standard articulated by the Supreme
Court in Strickland.” Id.; see also Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006)
(where state court correctly identifies Strickland as the controlling authority, federal courts
“address whether the state court unreasonably applied that precedent and whether the state court
unreasonably determined the facts in light of the evidence presented.”). “Judicial scrutiny of
counsel’s performance is highly deferential, indulging a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional judgment.” Bucklew, 436 F.3d at 1016
(citation omitted). Here, Petitioner has failed to demonstrate that trial counsel’s performance was
deficient or that he was prejudiced during the trial. Strickland, 466 U.S. at 687.
The record shows that the surviving victim and Petitioner’s two accomplices all testified
that Petitioner committed the crimes. The admission of finger and palm prints was nonessential to
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Petitioner’s conviction. As aptly stated by the Missouri Court of Appeals, the evidence against
Petitioner was overwhelming and uncontradicted. (Resp’t’s Ex. 17 p. 5) While Petitioner argues
that the outcome of the trial would have been different had his attorney objected to the admission
of the bloody finger and palm prints, he fails to demonstrate how the exclusion of the evidence
would have resulted in an acquittal. See Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998)
(“Assuming that counsel should have objected to the now-challenged testimony, we are satisfied
that there is no reasonable probability that the result of the trial would have been different had
counsel successfully objected to the testimony. Thus, [petitioner] has failed to establish that he
was prejudiced by counsel’s alleged deficient performance.”).
The Court therefore finds that the state courts did not apply the standards for ineffective
assistance of counsel set forth in Strickland in an objectively unreasonable manner. The courts
properly examined the prejudice prong against the plethora of evidence against the Petitioner and
reasonably concluded that Petitioner failed to demonstrate prejudice. As a result, Petitioner is not
entitled to habeas relief on his claim of ineffective assistance of counsel for failure to object to
evidence of finger and palm print evidence.
B. Procedurally Defaulted Claims
With regard to Petitioner’s remaining claims of ineffective assistance of trial and appellate
counsel, the Respondent correctly asserts that Petitioner has procedurally defaulted on these
claims for failure to raise the claims in the state court of appeals. Indeed, Petitioner acknowledges
that, although he presented the claims in his Rule 29.15 motion, he did not raise them on appeal.
(Petition A(10), ECF No. 1) In his Petition, Petitioner asserts that trial counsel was ineffective
for coercing Petitioner into having a bench trial; conceding guilt during the trial; failing to depose
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and call witnesses; failing to challenge the sufficiency of the evidence in Counts II and IV; failing
to challenge the competency of Dawn and William McIntosh; and failing to conduct proper
discovery and investigation. He also asserts that post-remand counsel was ineffective for waiving
the filing of a motion for new trial against Petitioner’s explicit instruction. Finally, Petitioner
claims that post-conviction appellate counsel was ineffective for failing to raise the ineffectiveness
claims regarding not filing a motion for new trial and conceding guilt. (Petition A(8) - A(10), ECF
No. 1)
Failure to present claims to the Missouri courts at any stage of the direct appeal or postconviction proceedings constitutes procedural default. Sweet v. Delo, 125 F.3d 1144, 1149 (8th
Cir. 1997); see also Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997) (citation omitted)
(“A claim presented to the state court on a motion for post-conviction relief is procedurally
defaulted if it is not renewed in the appeal from the denial of post-conviction relief.”). A federal
court lacks the authority to reach the merits of procedurally defaulted claims unless petitioner can
show cause and prejudice for the default or demonstrate a fundamental miscarriage of justice.
Schlup v. Delo, 513 U.S. 298, 314-15 (1995). “Establishing cause requires a showing of some
external impediment that frustrates a prisoner’s ability to comply with the state procedural rules.”
Malone v. Vasquez, 138 F.3d 711, 719 (8th Cir. 1998). Examples of such cause include a
showing that a factual or legal basis for a claim was not reasonably available to counsel, or that
interference by officials made compliance impracticable. Murray v. Carrier, 477 U.S. 478, 488
(1986)(citation omitted).
The miscarriage of justice exception applies only in extraordinary cases, particularly if a
constitutional violation resulted in the conviction of an innocent person. Schlup, 513 U.S. at 327;
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Murray, 477 U.S. at 496. This requires petitioner “to support his allegations of constitutional
error with new reliable evidence–whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence–that was not presented at trial.” Schlup, 513
U.S. at 324. The standard compels petitioner to persuade the court that in light of new evidence
no juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329; Perry
v. Norris, 107 F.3d 665, 666 (8th Cir. 1997). The Supreme Court noted in Schlup that claims of
actual innocence are rarely successful because this type of evidence is usually unavailable. Id.
While Petitioner concedes that he failed to raise the remaining ineffective assistance of
counsel claims on appeal from the denial of his motion for post-conviction relief, he asserts that
the procedural bar should be excused because he is factually innocent of the charges in Counts III
and IV and because post-conviction motion and appellate counsel were ineffective for failing to
raise the claims in the amended Rule 29.15 motion or on appeal. With regard to his claims of
actual innocence, the Court reiterates that the variance between the charging document and the
evidence supporting Petitioner’s conviction was not prejudicial to Petitioner’s defense, as
properly determined by the Missouri Court of Appeals. Further, as appropriately stated by the
Missouri Court of Appeals, the evidence of Petitioner’s guilt was overwhelming. Finally,
Petitioner presents no new reliable evidence that would convince this Court that, in light of such
evidence, no juror would have found him guilty beyond a reasonable doubt.
Petitioner also appears to argue cause and prejudice based upon post-conviction motion
counsel’s failure to present the claims in the amended Rule 29.15 motion and post-conviction
appellate counsel’s failure to raise the claims on appeal. The record demonstrates that
Petitioner’s post-conviction counsel only advanced two claims in the 29.15 motion, ineffective
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assistance of trial counsel for failure to object to the finger and palm print evidence and for
conceding Petitioner’s guilt. The Court has already addressed the issue regarding the evidence
above. With regard to the alleged ineffectiveness for conceding Petitioner’s guilt at trial,
Petitioner did not raise this claim on post-conviction appeal but asserts that post-conviction
appellate counsel’s failure to raise the claim constitutes cause. Any error by post-conviction
appellate counsel does not constitute cause to excuse the procedural default on ineffective
assistance of counsel claims where the petitioner raised the claims in his initial post-conviction
motion but failed to raise them on post-conviction appeal. Arnold v. Dormire, 675 F.3d 1082,
1086-87 (8th Cir. 2012); Dykes v. Koster, No. 4:12CV2299 CDP, 2013 WL 6096887, at *5
(E.D. Mo. Nov. 20, 2013). The record shows that Petitioner addressed his claim before the
motion court yet failed to preserve the claim on appeal. Petitioner may not assert ineffective
assistance of post-conviction appellate counsel as cause to overcome the procedural bar in this
instance. Dykes, 2013 WL 6096877, at *6. Therefore, the Court will dismiss his claim that trial
counsel was ineffective for conceding guilt as procedurally defaulted.
Petitioner also claims that trial counsel was ineffective for coercing Petitioner into having
a bench trial; failing to depose and call witnesses; failing to challenge the sufficiency of the
evidence in Counts III and IV; failing to challenge the competency of Dawn and William
McIntosh; and failing to conduct proper discovery and investigation. In addition, he asserts that
post-remand counsel was ineffective for waiving the filing of a motion for new trial. Petitioner
raised these claims in his pro se Rule 29.15 motion, but did not raise them in his amended motion
or on post-conviction appeal. Thus, he has procedurally defaulted on these claims. Petitioner
argues, however, that ineffective assistance of post-conviction counsel caused his default.
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“Inadequate assistance of counsel at initial-review collateral proceedings may establish
cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez v.
Ryan, 132 S. Ct. 1309, 1315 (2012). “For ineffective assistance of post-conviction counsel to
constitute cause, petitioner must show that counsel’s assistance was ineffective under the
standards of Strickland v. Washington, 466 U.S. 668 (1984), and further demonstrate that the
underlying claim of ineffective assistance of trial counsel is a “substantial” one, that is, that the
claim has some merit.” Moore v. Larkins, No. 4:10CV1244 FRB, 2013 WL 4091652, at *5
(E.D. Mo. Aug. 13, 2013) (citing Martinez, 132 S. Ct. at 1318). The Court previously set forth
the standards for ineffective assistance of counsel under Strickland. The Court will therefore
address whether Petitioner’s underlying claims of ineffective assistance of counsel are meritorious.
Petitioner argues that trial counsel was ineffective for coercing Petitioner to have a bench
trial. The record demonstrates, however, that Petitioner indicated to the court prior to trial that
he voluntarily decided to proceed to trial without a jury and that he made the decision after
talking to his attorney, who fully explained that Petitioner had a right to a jury trial. (Resp’t’s Ex.
1 pp. 5-6) Petitioner’s own testimony on the record refutes his claim that he waived his right to a
jury trial against his will. Thus, Petitioner is unable to demonstrate that trial counsel’s
performance was deficient or that the deficient performance prejudiced him during the trial.
Strickland, 466 U.S. at 687.
With regard to his claims that counsel was ineffective for failing to depose and call
witnesses and for failing to conduct proper discovery and investigation, Petitioner has failed to
demonstrate that counsel was ineffective under Strickland. Decisions regarding witness selection
are normally left to counsel’s judgment, and courts do not second-guess this judgment by
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hindsight. Hanes v. Dormire, 240 F.3d 694, 698 (8th Cir. 2001) (citations omitted). Further, “to
succeed on a claim that counsel was ineffective for failing to investigate, petitioner may not base
his claim on conclusory allegations but rather must allege what information his attorney failed to
discover.” Moore, 2013 WL 4091652, at *7 (citation omitted); see also Sanders v. Trickey, 875
F.2d 205, 210 (8th Cir.1989) (a habeas petitioner fails to demonstrate ineffective assistance of
counsel under Strickland where he merely offers speculation that he was prejudiced by counsel’s
failure to interview witnesses).
Here, Petitioner fails to identify which witnesses counsel should have deposed and called
or what information counsel would have discovered from these unidentified sources. Therefore,
Petitioner’s claims that counsel was ineffective for failing to depose and call witnesses and for
failing to conduct proper discovery and investigation lack merit.
Plaintiff next claims that trial counsel was ineffective for failing to challenge the sufficiency
of the evidence in Counts III and IV. “[S]trategic choices of trial counsel are entitled to great
deference.” Boyd v. Minnesota, 274 F.3d 497, 502 (8th Cir. 2001) (citation omitted). As stated
above, the evidence of guilt was overwhelming. Further, although the charging document differed
from the evidence, the evidence was sufficient to support the conviction for first degree robbery
and armed criminal action in Counts III and IV. Thus, counsel was not ineffective for failing to
challenge the sufficiency of the evidence where the claim was unlikely to succeed. See
McReynolds v. Kemna, 208 F.3d 721, 724 (8th Cir. 2000) (“counsel did not act outside the
spectrum of professionally reasonable performance in failing to urge a . . . claim unlikely to
succeed.”).

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Petitioner further argues that trial counsel was ineffective for failing to challenge the
competency of Dawn and William McIntosh. Petitioner asserts that the McIntoshes were under
psychiatric care and treatment before and during the trial and remained under psychiatric care
after. A witness who has received psychiatric treatment is presumed to be competent to testify,
and to overcome this presumption a party must show that the witness does not have sufficient
mental capacity to observe, recollect, and testify. Mitchell v. Kemna, 109 F.3d 494, 495-96 (8th
Cir. 1997) (citations omitted). Petitioner’s bald assertion that the McIntoshes were incompetent
merely based on psychiatric care is insufficient to demonstrate incompetency. Id. at 496.
Therefore, trial counsel was not ineffective for failing to challenge the competency of these
witnesses. Id.
Next, Petitioner argues that post-remand counsel was ineffective for waiving the filing of a
motion for new trial against Petitioner’s explicit direction. The Court finds that this was
reasonable trial strategy. Counsel sought, and received, convictions that carried the possibility of
parole. (Resp’t’s Ex. 7 p. 6; Resp’t’s Ex. 12 pp. 50-52) Further, Petitioner was aware that
waiving the motion did not limit his appeal and that counsel believed that it was in Petitioner’s
best interest not to file a motion for a new trial. (Resp’t’s Ex. 7 p. 3) In light of remand
counsel’s reasonable trial strategy, Petitioner has failed to demonstrate that “‘there is a reasonable
probability that but for defense counsel’s failure to move for a new trial [Petitioner] would have
gotten a new trial.’” Rice v. Wallace, No. 4:11CV00319 SNLJ, 2014 WL 752529, at *54 (E.D.
Mo. Feb. 25, 2014)(quoting Smith v. Lockhart, 946 F.2d 1392, 1394 (8th Cir. 1991)).
Because Petitioner’s underlying claims of ineffective assistance of trial and remand counsel lack
merit, the claims are not substantial under Martinez. “Therefore, it cannot be said that post18

conviction counsel was ineffective for failing to raise these non-meritorious claims in petitioner’s
amended motion for post-conviction relief.” Moore, 2013 WL 4091652, at *11. Because postconviction counsel did not provide ineffective assistance of counsel, Petitioner has not
demonstrated the requisite cause to excuse his procedural default on his ineffective assistance of
trial and remand counsel claims. Id. Therefore, these claims are procedurally barred from federal
habeas review and will be denied.
C. Non-cognizable Claim
Finally, Petitioner asserts that post-conviction appellate counsel failed to raise the issues of
counsel’s failure to file a motion for new trial and concession of Petitioner’s guilt to charges that
varied from the indictment. The Respondent correctly notes that a petitioner does not have a
constitutional right to an attorney in state post-conviction proceedings. Sidebottom v. Delo, 46
F.3d 744, 751 (8th Cir. 1995) (citation omitted). As such, there exists no constitutional right to
effective assistance of counsel in post-conviction proceedings, and alleged ineffectiveness of postconviction counsel may not be a ground for federal habeas relief. Id.; 28 U.S.C. § 2254(i).
Therefore, Petitioner’s claim is not cognizable and will be dismissed.
Accordingly,
IT IS HEREBY ORDERED that the petition of James Herron for a writ of habeas
corpus (ECF No. 1) is DISMISSED without further proceedings.
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253, no certificate of
appealability shall issue in this cause inasmuch as Petitioner has failed to make a substantial
showing that he has been denied a constitutional right.

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A separate judgment in accordance with this Memorandum and Order is entered this same
date.
/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 24th day of March, 2014.

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