Perigo v. Norman

Filing 14

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Jay Cassady be SUBSTITUTED as the Respondent in this proceeding. IT IS FURTHER ORDERED that the paper exhibits of the underlying state court proceedings filed by Respondent be RE TAINED UNDER SEAL. IT IS FURTHER ORDERED that the habeas petition filed by Christopher M. Perigo be DENIED without further proceedings. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 03/10/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER M. PERIGO,
Petitioner,
vs.
JAY CASSADY,1
Respondent.

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Case number 4:10cv2321 TCM

MEMORANDUM AND ORDER
Christopher M. Perigo (Petitioner), a Missouri prisoner, petitions the United States
District Court for the Eastern District of Missouri for federal habeas corpus relief from a
2008 conviction following a jury trial. See 28 U.S.C. § 2254. Respondent filed a response
[Doc. 9], including materials from the underlying state court proceedings.2
This matter is before the undersigned United States Magistrate Judge for review and
final resolution of the petition.3 Finding that the pending federal habeas petition presents

1

Petitioner has advised the Court that he is now at the Jefferson City Correctional Center
("JCCC"), rather than at the Southeast Correctional Center where he was when he filed his federal
habeas petition. Jay Cassady, the warden at JCCC, will, therefore, be substituted as the Respondent
in this federal habeas proceeding. See Rule 2(a) of the Rules Governing Section 2254 Cases in the
United States District Court. Although Petitioner named the Attorney General of the State of
Missouri ("Attorney General") as a Respondent in his pro se petition, the Court will not add him as
a respondent because, in this proceeding, Petitioner is not challenging a sentence he will be serving
in the future. See Rule 2(b) of the Rules Governing Section 2254 Cases in the United States District
Court.
2

Some of the state court materials identify the minor victim. The Court will direct the
Clerk's Office to retain the state court materials under seal.
3

This matter is before the undersigned United States Magistrate Judge on consent of the
parties. 28 U.S.C. § 636(c).

one ground for relief based on the alleged ineffective assistance of Petitioner's trial attorneys
and that the ground lacks merit, this Court will deny the petition without further proceedings.
Background
Petitioner was charged, as a prior offender, with two counts of statutory sodomy in
the first degree, in violation of Mo. Rev. Stat. § 566.062, for having deviate sexual
intercourse with D. G., a person under twelve years old, between January 1, 2006, and
August 3, 2006, in Scott County, Missouri. (Info. in lieu of Indictm., filed Dec. 19, 2007,
Legal File, Resp't Ex. B, at 37-38; see also Indictm., filed Oct. 26, 2006, Legal File, Resp't
Ex. B at 10.)
During a one-day trial in December 2007, the jury found Petitioner guilty on Count
I and not guilty on Count II. (Verdict Forms, Legal File, Resp't Ex. B, at 57 and 58.) On
April 1, 2008, the trial court sentenced Petitioner to a thirty-year term of imprisonment.
(Sentence and J., Legal File, Resp't Ex. B., at 63-64.)
On April 7, 2008, Petitioner filed a timely direct appeal. (See Apr. 7, 2008, entry on
docket sheet for State v. Perigo, No. 07BT-CR00345, Resp't Ex. B at 4.) Petitioner raised
two points in his direct appeal, basing both points on his contention that his rights to due
process, a fair trial, "and to be tried for the offense with which he is charged, as guaranteed
by the Fourteenth Amendment" were violated by alleged trial court errors. (Pet'r Br., Resp't
Ex. C.) First, Petitioner argued that those rights were violated by the trial court's admission
into evidence, over Petitioner's objection, of evidence (a photograph) of two sexually explicit
adult videotapes found in Petitioner's home. (Id. at 20, 23.) Secondly, Petitioner contended
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that those rights were violated by the trial court's failure sua sponte to declare a mistrial when
the State introduced extensive evidence that on the day Victim was removed from Petitioner's
home he engaged in child endangerment "when he was passed out because he was
intoxicated while he allowed Victim and her younger sister to be unsupervised and put
themselves in dangerous positions." (Id. at 21, 31.)
The Missouri Court of Appeals for the Southern District affirmed Petitioner's
conviction and sentence in a summary per curiam order, supplemented by a memorandum
sent only to the parties setting forth the reasons for the decision. (Per Curiam Order and
Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Feb. 27, 2009,
Resp't Ex. E.) The state appellate court set forth the factual and procedural background as
follows.
Victim was four years old at the time of the molestation. She lived with
her mother, her younger sister, and [Petitioner]. In early 2006, she attended
a program about good and bad touches and told her mother that [Petitioner]
had touched her. Victim then said she was just trying to get [Petitioner] in
trouble because she was mad at him. She also alleged a boy at school had
touched her. Victim and her mother talked to the principal, who thought
Victim was lying. Victim's mother was not allowed to testify that the little boy
was not even in school on the day Victim alleged the boy had touched her or
that Victim "made up stories."
Victim told a neighbor girl that [Petitioner] had touched her in places
with his finger and tried to rape her. The girl told Victim that rape is when a
guy makes you lay down with him, and Victim responded, "yes, that's what he
done." Later, Victim told the girl more allegations about [Petitioner] abusing
her.
The police visited [Petitioner]'s home on August 3, 2006, in response
to a call regarding a child in the roadway. Victim was found outside the home.
[Petitioner] and Victim's younger sister were found inside the home.
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[Petitioner] was on the floor sleeping. One of the officers used his foot to
nudge [Petitioner] awake. [Petitioner] was arrested for child endangerment and
taken to the police station. At the station, he took a breathalyzer test, which
registered his blood alcohol content at approximately .179.
Victim and her younger sister were taken to the police station after
[Petitioner]'s arrest. While at the station, Victim said she had to use the
bathroom and that it hurt. Based on this comment, one of the officers called
the Division of Family Services to investigate. Victim was examined at a
hospital, and the doctor did not make any conclusions to the police regarding
abuse.
The next day, Victim was interviewed at Network Against Sexual
Violence. The entire forensic interview was video recorded. The interview
began with questioning by Brenda Sikes, a licensed professional counselor.
Ms. Sikes asked Victim if she had ever been touched in the areas "where
nobody can touch"'; Victim said no, except when she was taken to the doctor,
and they "stuck a tube up" where nobody can touch. Victim said she had been
taken to the doctor because it burned when she peed and she had a bladder
infection. When Ms. Sykes asked if Victim had ever told a certain girl that she
had been touched, she said she told the girl that the girl's two-and-a-half-yearold brother had touched her in places where people should not touch.
Ms. Sikes then asked if Victim had told the girl about anyone else
touching her in places where people should not touch, and Victim said she had.
When Ms. Sikes asked who had touched her, Victim pointed to the vaginal
area of a diagram. After a break in the interview, Ms. Sikes said to Victim, "I
understand that you told [name of a girl] that your dad touched you with his
finger." Victim said [Petitioner] touched her with his finger. Ms. Sikes asked
her where he had touched her with his finger, and Victim pointed to her
vaginal area. She said [Petitioner] put his ring finger in the place where no one
is supposed to touch. When describing what had happened, Victim said that
[Petitioner] touched her skin, but she also maintained that her pants stayed on.
After Ms. Sikes interviewed Victim, the interview session was
continued by Tammy Gwaltney. Ms. Gwaltney asked Victim if [Petitioner]
had ever sucked on her body, and Victim said he sucked her "boobs." Victim
told Ms. Gwaltney that [Petitioner] had movies of girls with their clothes off.
She said "the girls had sex with the girls." Victim described the naked girls as
"big girls like mom." Victim said that a "big" boy who was "fourteen" or "a
hundred years old" also watched the movies with [Petitioner]. Victim also said
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[Petitioner] had pictures of naked girls on the computer. She said there was
a camera on the computer that [Petitioner] used to take nude photographs of
her mother and two neighbor women. He then made movies out of those
photographs. Victim also said that [Petitioner] licked a neighbor woman's
"boobs." She further said that [Petitioner] told her that he looked at pictures
of children with their clothes off on the computer. Victim told Ms. Gwaltney
that [Petitioner] said that if she ever told anyone what happened, he would
"give her a whooping with hot sauce in her mouth."
The police searched [Petitioner]'s home and a nearby home into which
[Petitioner] was moving. Two adult VHS videotapes, "Playboy: Sexiest Home
Videos" and "Dream Girls Mardi Gras Uncensored Volume #1," were found
in [Petitioner]'s home. No homemade movies of naked women or photographs
of naked women were found.
At some point, [Petitioner] was interviewed by the police. At first,
[Petitioner] denied penetrating Victim's vaginal area. He then described three
times that he accidently touched her in her vaginal area while he was helping
her to bathe or change her clothes. One of those times, his hand accidentally
penetrated Victim's vagina.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Feb. 27, 2009,
Resp't Ex. E, at 2-5 (one footnote omitted) (twelfth alteration in original).)
With respect to point one, challenging the admission of the "photograph of the two
adult VHS videotapes found in [Petitioner]'s home," the state appellate court found:
Prior to trial, defense counsel told the [trial] court that as a matter of
trial strategy, he wanted to show the jury the entire recording of Victim's
forensic interview even though it also contained evidence of uncharged crimes
committed by [Petitioner]. He wanted the jury to hear the allegations Victim
made so that he could later attack her credibility by pointing out that they were
unsubstantiated due to the lack of evidence found in [Petitioner]'s home and
were contradicted by the testimony of witnesses. Defense counsel specifically
said he wanted to argue that Victim's statement in the interview was
"ludicrous" because she alleged that [Petitioner] made homemade movies, but
none were found in [Petitioner's] home. The [trial] court ruled that it would
allow the entire forensic interview to be played for the jury.

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Although defense counsel wanted the entire forensic interview to be
shown, he also filed a motion in limine to exclude, among other things,
evidence of the two adult VHS videotapes. Defense counsel argued the two
adult VHS videotapes were not legally or logically relevant because they do
not prove the guilt or innocence of [Petitioner] and are more prejudicial than
probative. He also argued that the State wanted to use the two adult VHS
videotapes as propensity evidence.
The State argued in response to the motion in limine that if defense
counsel attacked Victim's credibility by putting on evidence of Victim's
unsubstantiated allegations, then the State should be permitted to bolster
Victim's credibility by showing a photograph of the two adult VHS videotapes,
which substantiated Victim's allegation that [Petitioner] had movies of naked
girls. The State offered to not bring into evidence the photograph of the two
adult VHS videotapes if defense counsel did not bring up the fact that
homemade movies were not found when [Petitioner]'s house was searched, but
defense counsel stated that he was certainly going to talk about those items.
Defense counsel did indeed discuss the unfound items throughout the
course of the trial. During his opening statement, he stressed the importance
of the forensic interview and commented that Victim's statements were
outlandish. Defense counsel then told the jury that although Victim said that
there were things like homemade movies in the home, the only thing found by
the police were two adult VHS videotapes. Defense counsel even described
the two adult VHS videotapes to the jury saying, "You see these? This is
basically a Girls Gone Wild or Playboy tape. It's not a pornographic tape. It's
an adult tape of women without their clothes on." Defense counsel also asked
about the contents of the two adult VHS videotapes during direct examination
of [Petitioner]. [Petitioner] explained that the two adult VHS videotapes
contained images of naked girls, but there were no images of girls having sex.
During his cross-examination of Victim, defense counsel asked her if
she remembered telling the interviewers that [Petitioner] made movies with
two neighbor women; she said she did not remember. During his case in chief,
defense counsel presented the testimony of one of the neighbor women who
Victim had named during the forensic interview as being in [Petitioner]'s
homemade movies and as having had her "boobs" licked by [Petitioner]. The
neighbor woman testified that [Petitioner] never took any nude photos of her
and never licked her "boobs." Defense counsel also argued in closing that
Victim should not be believed. He stressed that her testimony did not match
the evidence obtained at the home in that the police did not find any pictures.
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He also pointed out that her statements during the forensic interview did not
match the testimony of the neighbor woman.
We first address the logical relevance of the photograph of the two adult
VHS videotapes. Because there was no physical evidence of abuse and no
witnesses to the abuse other than Victim, the State's case ultimately depended
on Victim's testimony and, therefore, her credibility. Defense counsel made
it clear prior to trial that he intended to play the entire forensic interview for
the jury and use it to attack Victim's credibility by showing that items
mentioned by Victim, such as homemade movies, were not found in
[Petitioner]'s home. Defense counsel then employed this strategy throughout
the trial.
Against this attack by defense counsel, any evidence the State could
have adduced that would have corroborated Victim's testimony regarding other
events in the home would have bolstered her credibility. The photograph of
the two adult VHS videotapes did just that; Victim said during the forensic
interview that [Petitioner] had naked girl movies, and then the two adult VHS
videotapes featuring naked women were found in [Petitioner]'s home. Thus,
the photograph of the two adult VHS videotapes was logically relevant.
The photograph was also legally relevant. We initially note that the two
adult VHS videotapes were not admitted into evidence; only the photograph
of the two adult VHS videotapes was admitted. Defense counsel explained to
the jury during his opening statement that the two adult VHS videotapes were
not pornographic but were basically videotapes of women without their
clothes. During direct examination of [Petitioner], defense counsel asked if
Girls Gone Wild tapes contained girls having sex, and [Petitioner] replied that
they did not. Even if some jurors disapproved of the two adult VHS
videotapes because they contained naked women, we do not think that a
photograph of the two adult VHS videotapes was prejudicial enough to have
deprived [Petitioner] of a fair trial. The probative value of the photograph was
not outweighed by a risk of unfair prejudice to [Petitioner]. Because the
photograph was both logically and legally relevant, the trial court did not
abuse its discretion in admitting it into evidence. Point I, therefore, is denied.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Feb. 27, 2009,
Resp't Ex. E, at 5-8.)
In resolving the second point, in which Petitioner challenged, under plain error
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review, "the trial court's failure to declare a mistrial when the State introduced evidence that
on the day Victim was removed from his home, [Petitioner] had committed child
endangerment when he left Victim and her younger sister unsupervised and allowed them to
put themselves in dangerous positions because he was passed out from intoxication," the
Missouri Court of Appeals stated:
It is within this Court's discretion to review a claim by way of plain
error. Rule 30.20. [Petitioner] has the burden of demonstrating plain error by
showing "(1) that the error was plain, i.e., evident, obvious, and clear; (2) that
a failure to correct the error would produce a manifest injustice or a
miscarriage of justice; and (3) that the error was outcome determinative."
State v. Moore, 252 S.W.3d 272, 275 (Mo. [Ct.] App. . . . 2008) (internal
citations omitted). Trial courts have broad discretion in determining relevance
and admissibility of evidence, and we will find error only upon a showing of
an abuse of that discretion. [State v.] Liles, 237 S.W.3d[ 636,] 638-39 [(Mo.
Ct. App. 2007)]. Additionally, because a mistrial is a drastic remedy, a trial
court should sua sponte declare a mistrial only in exceptional circumstances.
[State v.] Ondo, 232 S.W.3d [622,] 627 [Mo. Ct. App. 2007)]. [Petitioner] has
failed to demonstrate that the [trial] court committed any error, plain or
otherwise, by admitting evidence of [Petitioner]'s intoxication and arrest for
child endangerment. We, therefore, decline to exercise our discretion to
review for plain error.
As noted earlier, it was [Petitioner]'s arrest for child endangerment that
led to the investigation of the offense charged in this case. When police
arrived at the home, Victim was found outside the home. [Petitioner] and
Victim's younger sister were found inside the home. [Petitioner] was on the
floor sleeping. An officer nudged [Petitioner] awake. [Petitioner] was arrested
and taken to the police station. At the station, he took a breathalyzer test,
which registered his blood alcohol content at approximately .179. Victim and
her younger sister were taken to the police station after [Petitioner]'s arrest.
While at the station, Victim said she had to use the bathroom and that it hurt.
This comment alarmed one of the officers, so she called the Division of Family
Services to investigate.
Evidence of prior uncharged misconduct is generally not admissible to
show the propensity of the defendant to commit such crimes. State v. Turner,
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242 S.W.3d 770, 777 (Mo. [Ct.] App. . . . 2008). Evidence of prior uncharged
misconduct is admissible, however, when the misconduct is part of a sequence
of events surrounding the charged offense and the evidence helps to present a
complete and coherent picture of the events that transpired. Id. at 778. Victim
and her younger sister were taken to the police station after [Petitioner]'s arrest
for child endangerment. While at the police station, Victim disclosed facts
leading to the sexual abuse investigation. Because [Petitioner]'s intoxication
and arrest for child endangerment led to the investigation of the sodomy
charge in this case, that misconduct was part of the sequence of events
surrounding the sodomy charge. Furthermore, evidence of the intoxication and
child endangerment helped to present to the jury a complete and coherent
picture of the events that transpired by explaining why the police first became
concerned that Victim had been sexually abused. The trial court did not err
in admitting the evidence of [Petitioner]'s intoxication and arrest for child
endangerment and by failing to sua sponte declare a mistrial. Point II is
denied.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Feb. 27, 2009,
Resp't Ex. E, at 9-11.) Petitioner did not pursue review by a higher court, and the Missouri
Court of Appeals issued its mandate on March 17, 2009. (See docket sheet for State v.
Perigo, No. SD29075 (Mo. Ct. App. filed Apr. 7, 2008) (docket sheet available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited Mar. 10, 2014).)
On May 21, 2009, Petitioner filed a timely pro se motion under Mo. S. Ct. Rule 29.15
("post-conviction motion"). (Pet'r Post-Conviction Mot., filed May 21, 2009, Legal File,
Resp't Ex. F, at 4-11.) In this motion, Petitioner argued his trial attorneys failed to
investigate and call Dr. Kevin J. Blanton, who would have testified that he prescribed
medicine that was applied on the vaginal area; failed to get DNA test results; and failed to
do enough discovery or to investigate the case sufficiently. (Id. at 5-6, 10-11.)
Through his post-conviction motion attorney, Petitioner subsequently filed an

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amended post-conviction motion, including a request for an evidentiary hearing. (Pet'r Am.
Post-Conviction Mot., filed Aug. 31, 2009, Legal File, Resp't Ex. at 12-35.) In that motion,
Petitioner alleged his trial attorneys denied him the effective assistance of counsel: by failing
to investigate and call as a witness at trial Victim's treating physician, Dr. Blanton; by failing
properly to object and seek a curative instruction or mistrial when a State's witness violated
a trial court order in limine; by failing to raise in Petitioner's motion for judgment of acquittal
or in the alternative for new trial, newly discovered evidence that Victim was coached during
Petitioner's trial; and by failing to object and preserve for appellate review a challenge to the
testimony of Sykes and Gwaltney, "who used suggestive and leading questions when
questioning [Victim] in order to obtain evidence against [Petitioner]." (Id. at 13-14.)
On December 3, 2009, after an evidentiary hearing at which Victim's mother, Dr.
Blanton, Petitioner's trial attorneys, and Petitioner testified (see Hr'g Tr., Resp't Ex. G), the
motion court issued findings of fact and conclusions of law overruling Petitioner's amended
post-conviction motion ("post-conviction j.").4 (Post-Conviction J., Legal File, Resp't Ex.
F, at 36-43.) In explaining its decision, the motion court stated, in part, that "[t]he [trial]
attorneys were credible witnesses, and the court resolves conflicts between their testimony
and the testimony of [Petitioner] in favor of the attorneys." (Id. at 39.)
Petitioner then filed a timely appeal on December 10, 2009. (Pet'r Notice of Appeal,

4

The judge presiding over Petitioner's post-conviction proceedings, the Honorable Paul
McGhee, was not the same judge who presided over Petitioner's trial proceedings, the Honorable
Mark L. Richardson.
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filed December 10, 2009, Legal File, Resp't Ex. F, at 45-46.) In his one point on appeal,
Petitioner argued that his right to the effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments was violated by his trial attorneys' failure to investigate
and call as a witness Dr. Blanton,
whose testimony would have supported [Petitioner]'s defense by establishing
that at the time of the alleged incident, [Victim] was being treated for vaginitis
with a topical ointment that was applied to [Victim]'s genital area, which
would explain the burning sensation when [Victim] urinated and any touching
of [Victim]'s genitals that may have occurred.
(Pet'r Br., Resp't Ex. H, at 20, 21.)
The Missouri Court of Appeals for the Southern District affirmed the motion court's
judgment in a summary per curiam order, supplemented by a memorandum sent only to the
parties setting forth the reasons for the decision.

(Per Curiam Order and Mem.

Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Oct. 13, 2010, Resp't
Ex. J.) The state appellate court set forth the factual and procedural background as follows.
A jury found [Petitioner] guilty of sodomizing his girlfriend's four-year-old
daughter, D. G., via digital penetration. The defense theory was that any
touching was accidental and investigators essentially coerced D. G. into
believing that [Petitioner] did something wrong. To this end, [Petitioner]
testified that he accidentally touched D. G.'s vagina three times – during a
bath, after a bath, and while getting her dressed – and penetrated her vagina on
one such occasion. This testimony essentially mirrored [Petitioner]'s prior
statement to police.
Both [Petitioner]'s direct appeal and Rule 29.15 action were
unsuccessful. He now appeals the latter and has abandoned every claim but
one.
[Petitioner] still contends that trial counsel were ineffective for not
calling Dr. Blanton to testify that D. G. suffered vaginitis for which the doctor
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had prescribed a topical ointment. Such testimony, [Petitioner] argues, would
have shown "the necessity of D.G.'s genital area being touched to treat the
condition of vaginitis," and would have explained any touching of D. G.'s
genitals "that may have occurred."
(Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Oct. 13, 2010,
Resp't Ex. J, at 2.)
The state appellate court then found no clear error by the motion court and affirmed
the motion court's judgment:
We cannot reverse the motion court's denial of this claim unless [that
denial] was clearly erroneous. Tinsley v. State, 258 S.W.3d 920, 924 (Mo.
[Ct.] App. 2008). [Petitioner] must definitely and firmly convince us that a
mistake was made. Id.
Crooks v. State, 131 S.W.3d 407 (Mo. [Ct.] App. 2004) likewise
involved an allegation that trial counsel did not investigate or call a potential
witness. The claim failed for two reasons. First, [the] "Movant failed to
identify Davis as a witness he wanted called," and "it is reasonable for counsel
to rely on the statement of his client in procuring witnesses." Id. at 410-11.
Second, "in any event, Davis' testimony would not have unqualifiedly
supported the defense offered." Id. at 411. Thus, "counsel was not ineffective
for failing to interview or call Davis at [the] Movant's trial." Id.
The same can be said here. The motion court at least implicitly found
that [Petitioner] did not identify or suggest Dr. Blanton as a potential witness,
and expressly found that the doctor's testimony would not have provided a
viable defense. Rather, as the motion court correctly observed, "[Petitioner]
did not claim that he touched [V]ictim's vaginal area while placing ointment
on her; his statement to the police and his testimony were that the touches were
accidental."
[Petitioner]'s claim suffers both of Crooks' deficiencies, either of which
defeats his appeal. The motion court did not clearly err. Judgment affirmed.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Oct. 13, 2010,
Resp't Ex. J, at 2-3.) Petitioner did not seek review by a higher court and the state appellate
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court issued its mandate on October 29, 2010. (See docket sheet for State v. Perigo, No.
SD30244 (Mo. Ct. App. filed Dec. 10, 2009) (docket sheet available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited Mar. 10, 2014).)
On December 10, 2010, Petitioner filed his federal habeas petition, which sets forth
one ground for relief, that his trial attorneys did not provide effective assistance of counsel.
In support of this ground, petitioner sets forth only the following information:
[Petitioner] lived with [Victim's mother] (Mother) and her daughters,
[Victim] and [another daughter], in a mobile home in Scott County (Tr. 269,
400-01, 424, 426). In 2005 and 2006, Victim attended a school that had a
program about good and bad touches (Tr. 404, 415-16). At some point around
the first part of 2006, Victim told mother that [Petitioner] had touched her (Tr.
404, 410-11, 414). When Mother questioned [Victim] further about it Victim
admitted that she was just trying to get [Petitioner] in trouble because she was
mad at him (Tr. 405, 414, 419-20). Mother had never seen any signs of abuse
on her children (Tr. 406). Victim had also made an allegation that a little boy
at school had touched her (Tr. 286, 405). Victim and Mother talked to the
principal (Tr. 286). The principal thought [Victim] was lying (Tr. 286).
At some point, Victim told a neighbor girl that [Petitioner] had touched
her in places with his finger and tried to "rape" her (Tr. 271-72, 280, 290, 293,
296, 297). The neighbor girl testified that rape meant a guy forcing you to lay
down with him (Tr. 290, 294). When the girl told Victim what rape meant,
Victim said "Yes, that's what he done" (Tr. 290, 294). The girl told her mother
that Victim had said that [Petitioner] "touches" Victim (Tr. 291, 299). The
girl's mother asked Victim if [Petitioner] had touched her, and Victim said that
he had touched her with his finger (Tr. 271-72, 280, 291, 299, 300, 303-04,
307-08).
A couple of days later, the neighbor girl's mother told a welfare
caseworker about it when the worker was visiting about an allegation that she
did not have any food in the house (Tr. 300-01, 305).
Later, Victim talked to the neighbor girl and she told her that
[Petitioner] had done a little more each time (Tr. 291). The girl confronted
[Petitioner] and told him that she knew what he had done to Victim and she
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would appreciate it if he would stop (Tr. 291, 434, 443). [Petitioner] might
have told the girl that his hand might have slipped when he was giving Victim
a bath, but he never purposely touched her (Tr. 443). Victim also told a
neighbor boy that [Petitioner] had raped her and touched her in a private area
(Tr. 309-10, 312, 315). The boy said that rape meant when a guy touches a
girl in a "nasty place" (Tr. 310).
On August 3, 2006, Officer Lana Cooper of the Miner Police
Department went to [Petitioner]'s residence in response to a call regarding an
unattended child (Tr. 210-11, 306). There were two children at the residence
including Victim (Tr. 213-14, 235). Eventually, the children were taken to the
police station in Miner (Tr. 214). While there, Victim said she had to go to the
bathroom and that "it hurt" (Tr. 215). This alarmed Officer Cooper, so the
Division of Family Service (DFS) were called to investigate (Tr. 215-16).
Victim was taken to be examined at Missouri Delta Medical Center in
Sikeston (Tr. 216, 226-27). The physical examination was not conclusive
regarding suspected abuse (Tr. 227). An appointment was made for the
following day at NASV (Network Against Sexual Violence) in Cape Girardeau
(Tr. 216, 317).
On August 4, 2006, Brenda Sikes, a licensed professional counsel
interviewed Victim at NASV (Tr. 319, 333). Victim was four years old at that
time (Tr. 321). Sikes's interview was interrupted a number of times by knocks
on the door from her supervisor, Tammy Gwaltney, who wanted to assist
[with] the questioning (Tr. 364).
(Pet'r Pet. at 7, 11-13 [Doc. 1] (footnote omitted).) In printed handwriting the words "to
here" follow the last sentence just quoted. Id. at 13.
Characterizing the petition as "ending abruptly," and without addressing the timeliness
of Petitioner's federal habeas petition, Respondent addresses Petitioner's federal habeas
petition based on Respondent's assumption that Petitioner's sole claim of "ineffective
assistance of counsel is the same claim briefed and addressed by the Missouri Court of
Appeals during the post-conviction appeal." (Resp't Response at 4 [Doc. 9 at 4].) Because

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that is the only ineffective assistance of counsel claim presented to the state appellate court
in Petitioner's post-conviction motion proceeding, this Court will resolve Petitioner's federal
habeas claim based on that assumption.
Respondent argues this ground does not entitle Petitioner to federal habeas relief
because the Missouri Court of Appeals reasonably considered and rejected the merits of this
issue during Petitioner's post-conviction motion appeal; and that decision was not contrary
to or an unreasonable application of clearly established federal law.
Discussion
Petitioner asserts his right to the effective assistance of counsel as guaranteed by the
Sixth and Fourteenth Amendments was violated by his trial attorneys' failure to investigate
and call as a witness Dr. Blanton,
whose testimony would have supported [Petitioner]'s defense by establishing
that at the time of the alleged incident, [Victim] was being treated for vaginitis
with a topical ointment that was applied to [Victim]'s genital area, which
would explain the burning sensation when [Victim] urinated and any touching
of [Victim]'s genitals that may have occurred.
Respondent counters that the state court of appeals correctly and reasonably denied
this claim in accordance with the principles set forth in Strickland v. Washington, 466 U.S.
668 (1984). Specifically, Respondent pointed to that state court's finding that evidence of
Petitioner's intentional touching of Victim's vaginal area to apply ointment did not support
Petitioner's trial testimony that he accidentally touched Victim's vagina three times and
penetrated it during one of those three instances.
The available record reveals that Petitioner defended the alleged offenses at trial by
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testifying that he had accidentally penetrated Victim's vagina during one of three incidents
of accidental touching of Victim's vaginal area when Petitioner was bathing or dressing
Victim. (Trial Tr. at 428-31.) The Missouri Court of Appeals concluded Petitioner's trial
attorneys did not provide ineffective assistance of counsel in failing to investigate and
present Dr. Blanton because Petitioner had not identified him as a potential witness and the
doctor would not have provided a viable defense, due to the defense that any touching of
Victim by Petitioner occurred accidentally rather than intentionally. (Mem. Supplementing
Order Affirming J. Pursuant to Rule 84.16(b), dated Oct. 13, 2010, Resp't Ex. J, at 2-3.)
Standard of Review.

"In the habeas setting, a federal court is bound by the

[Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA')] to exercise only limited
and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748,
751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state
prisoner unless the state court's adjudication of a claim "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 "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). A state court decision is contrary to clearly established United States
Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or . . . decides a case differently than [the
Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529
U.S. 362, 413 (2000). If the state court's decision is not "contrary to" clearly established law,
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then the standard of "unreasonableness," applies and is "meant to be difficult to meet, and
'even a strong case for relief does not mean the state court's contrary conclusion was
unreasonable.'" Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington
v. Richter, 131 S. Ct. 770, 786 (2011)), cert. denied, 134 S. Ct. 85 (2013). A state court
decision is an unreasonable application of clearly established federal law if it "correctly
identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner's case." Taylor, 529 U.S. at 407-08; see also id. at 413. "The unreasonable
application inquiry is an objective one." de la Garza v. Fabian, 574 F.3d 998, 1001 (8th
Cir. 2009). For a summary ruling issued by a state court, the petitioner can only satisfy the
"unreasonable application" prong of habeas review by showing there is no reasonable basis
for the state court decision, which the habeas court assesses by determining what arguments
or theories could have supported the state court decision and whether fairminded jurists could
disagree that those arguments or theories are inconsistent with a prior decision of the United
States Supreme Court. Cullen v. Pinholster, 131 S. Ct. 1388, 1402 (2011) (quoting
Harrington, 131 S. Ct. at 784, 786).
In reviewing state court proceedings to ascertain whether they are contrary to or
involve an unreasonable application of clearly established federal law, this Court "is limited
to the record that was before the state court that adjudicated the claim on the merits." Id.
at 1398. Additionally, this Court's review is limited to consideration of the United States
Supreme Court precedents at the time the state court issues its decision on the merits.
Greene v. Fisher, 132 S. Ct. 38 (2011) (relying on Cullen, supra); accord Losh v. Fabian,
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592 F.3d 820, 823 (8th Cir. 2010) ("[o]nly rulings in [United States] Supreme Court
decisions issued before the state court acts are considered clearly established federal law, for
a state court does not act contrary to or unreasonably apply clearly established federal law
if there is no controlling [United States] Supreme Court holding on the point" (citations
omitted)). The state court does not need to cite to Supreme Court cases, "'so long as neither
the reasoning nor the result of the state-court decision contradicts them.'" Revels v. Sanders,
519 F.3d 734, 739 (8th Cir. 2008)) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam)).
Section 2254(d) "does not require a state court to give reasons before its decision can
be deemed to have been 'adjudicated on the merits.'" Harrington, 131 S. Ct. at 785; accord
Brown v. Luebbers, 371 F.3d 458, 462 (8th Cir. 2004) (en banc) ("[T]he 'summary nature'
of the [state court's] discussion of [a] federal constitutional question does not preclude
application of [§ 2254's] standard"). "When a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or state-law procedural principles to
the contrary." Harrington, 131 S. Ct. at 784-85; accord Johnson v. Williams, 133 S. Ct.
1088, 1094 (2013) (Harrington presumption applies "when a state-court opinion addresses
some but not all of a [petitioner]'s claims"). This presumption may "in some limited
circumstances be rebutted." Johnson, 133 S. Ct. at 1096.
Additionally, in a federal habeas action pursued by a state prisoner, "a determination
of a factual issue made by a State court shall be presumed to be correct" unless rebutted by
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the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A state court

decision involves an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings "only if it is shown that the state court's
presumptively correct factual findings do not enjoy support in the record." Ryan v. Clarke,
387 F.3d 785, 790 (8th Cir. 2004) (internal quotation marks omitted) (quoting Jones v.
Luebbers, 359 F.3d 1005, 1011-12 (8th Cir. 2004)). The deference owed by a federal habeas
court to a state court's findings of fact includes deference to state court credibility
determinations, Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc), and to "[a]
state court's findings of fact made in the course of deciding" an ineffective assistance of
counsel claim, Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004). Moreover, the
presumption of correctness of findings of fact applies to the factual determinations made by
a state court at either the trial or appellate levels. Smulls, 535 F.3d at 864-65.
An accused's Sixth Amendment right to the assistance of counsel is a right to the
effective assistance of counsel. Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007)
(citing Kimmelman v. Morrison, 477 U.S. 365, 377 (1986)). In Strickland, supra, the
Supreme Court established a two-part test for determining whether or not an attorney
provided effective assistance of counsel. The petitioner must establish both deficient
performance, i.e., that "counsel's representation fell below an objective standard of
reasonableness," and prejudice, i.e., that "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 687-88, 694.
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For the performance prong of an ineffective assistance of counsel claim, a petitioner
must demonstrate that "counsel's performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a reasonably competent attorney."
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing Strickland, 466 U.S. at 68789). "Only reasonable competence, the sort expected of the 'ordinary fallible lawyer,' is
demanded by the Sixth Amendment." White v. Helling, 194 F.3d 937, 941 (8th Cir. 1999)
(quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir. 1992)). The court is highly
deferential in analyzing counsel's conduct and "'indulg[es] a strong presumption that
counsel's conduct falls within the wide range of professional judgment.'" Armstrong, 534
F.3d at 863 (quoting Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)).
To establish prejudice, there must be a showing of "a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694; Armstrong v. Kemna, 590 F.3d 592, 595-96 (8th Cir. 2010)
(quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1105 (8th Cir. 1996)). "'A reasonable
probability is [a probability] sufficient to undermine confidence in the outcome.'"
Armstrong, 590 F.3d at 596 (quoting McCauley-Bey, 97 F.3d at 1105); accord Carroll v.
Schriro, 243 F.3d 1097, 1100 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 694). The
petitioner bears the burden of showing such a reasonable probability. Lawrence v.
Armontrout, 961 F.2d 113, 115 (8th Cir. 1992).
The question of prejudice from counsel's performance need not be reached if the
performance was not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir.
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1998). Conversely, the question of counsel's allegedly deficient performance need not be
reached if a petitioner has failed to show prejudice. See Strickland, 466 U.S. at 697;
Williams v. Locke, 403 F.3d 1022, 1025 (8th Cir. 2005).
Here, Petitioner urges that his trial attorneys provided ineffective assistance by failing
to interview and present Dr. Blanton as a witness during trial regarding the need to apply
topical ointment to Victim's vaginal area. Petitioner has not satisfied his burden to show the
incorrectness or unreasonableness of the Missouri Court of Appeals' determination that he
failed to establish this ineffective assistance of counsel claim. Nor has Petitioner provided
clear and convincing evidence to rebut the presumption of correctness this Court must accord
any decision of the state court regarding a factual issue, including credibility determinations,
pertaining to that claim.
Petitioner's trial testimony clearly established his defense that any touching of Victim's
vaginal area, including penetration of Victim's vagina, by him was accidental. As the state
court found, any information Dr. Blanton would have provided about a need to apply
ointment to Victim's vaginal area would address an intentional touching, which would not
support Petitioner's defense that any inappropriate touching of Victim's vaginal area was
accidental. Without more, the Court is unable to conclude that the failure of Petitioner's trial
attorneys to interview Dr. Blanton or to present him as a trial witness constituted the
ineffective assistance of counsel.
Under the circumstances, the state appellate court's decision is not contrary to or an
unreasonable application of clearly established federal law, and is not based on an
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unreasonable determination of the facts in light of the evidence presented in state court.
Petitioner's sole ground for relief, alleging the ineffective assistance of his trial
attorneys, is denied.
Conclusion
Having found Petitioner's only ground for relief is without merit, his federal habeas
petition will be denied.
Accordingly, after careful consideration,
IT IS HEREBY ORDERED that Jay Cassady be SUBSTITUTED as the
Respondent in this proceeding.
IT IS FURTHER ORDERED that the paper exhibits of the underlying state court
proceedings filed by Respondent be RETAINED UNDER SEAL.
IT IS FURTHER ORDERED that the habeas petition filed by Christopher M. Perigo
be DENIED without further proceedings.
A separate Judgment shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

Dated this 10th day of March, 2014.

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