Boss v. Dormire

Filing 11

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the petition of Alfred Boss for a writ of habeas corpus relief is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue in this case. A separate Judgment shall accompany this Memorandum and Order.re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Alfred Boss, Jr. Signed by District Judge Audrey G. Fleissig on 3/7/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALFRED BOSS,
Petitioner,
v.
DAVE DORMIRE,
Respondent.

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Case No. 4:10CV02330 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Alfred Boss for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. A jury convicted
Petitioner on February 27, 2007, of forcible rape, forcible sodomy, and first-degree
burglary. He was sentenced on April 4, 2007, to an aggregate sentence of 75 years
imprisonment. For habeas relief, Petitioner claims that he is actually innocent of the
charged offenses and therefore that none of his federal habeas claims are procedurally
barred, even though he never presented any of them to the state courts. Those claims
include 11 instances of alleged ineffective assistance of counsel, and two due process
claims. For the reasons set forth below, federal habeas relief shall be denied.
BACKGROUND
Trial
At trial, 11 witnesses testified for the State: the 71-year old victim, the two nurses
who examined her at the hospital, the police officer who responded to her residence and

later arrested and interviewed Petitioner, another police officer who responded to the
victim’s residence and was the evidence custodian, two workers from the Missouri
Highway Patrol Crime Lab, two acquaintances of Petitioner who were with him before
and/or after the crimes, a police officer who arrested and interviewed Petitioner, and a
DNA expert. The State’s evidence established the following:
On April 2, 2006, the victim was living in a senior citizen’s complex, when her cat
woke her about 4:30 a.m. The victim saw Petitioner standing in the doorway between the
bedroom and kitchen. When the victim attempted to leave the apartment, Petitioner
stopped her, put his hand on her mouth, grabbed her by her waist, carried her to the
bedroom, pushed her down, and took off her underpants. When the victim struggled,
Petitioner put a pillow over her mouth. Petitioner then sexually assaulted the victim, and
left, whereupon the victim called the police. Medical personnel found that the victim had
abrasions on her face, behind her neck and ears, and on her vagina and rectum.
The police arrested Petitioner on unrelated charges two days later. The arresting
officers noticed that Petitioner’s jacket matched the description of the jacket worn by the
victim’s assailant. After the officers advised Petitioner of his rights, he agreed to speak
with them. An officer asked Petitioner whether he knew what DNA was and Petitioner
stated he did not. The officer explained that DNA existed in the human tissue, hair, blood,
and semen, and that DNA could be used to identify a person who had sexual contact with
another. The officer asked Petitioner for permission to take a DNA sample from him and
he agreed and signed a consent form. The police collected a DNA sample from Petitioner,

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and the analysis of the vaginal swab taken from the victim showed that Petitioner’s DNA
was present on it.
During the interrogation that followed, Petitioner initially denied knowing the
victim and denied knowing anything about the incident. When asked about the night in
question, Petitioner said that he was in Jefferson City with his girlfriend, that they watched
a movie, ate out, and spent the night in a hotel. After the officers told Petitioner that they
did not believe his story, he admitted being in the victim’s apartment. Petitioner said that
he was walking to his father’s house and that he saw the victim’s door open. According to
Petitioner, he went and asked the victim “to make love” and they had consensual sex. The
officers again told Petitioner that they did not believe him, and he told them that he was
drunk at the time of the crimes. According to the officers, Petitioner then admitted that the
victim asked him to leave and that he forced her to have sex with him. Following the
admission, Petitioner agreed to give a written statement. That statement was illegible.
Petitioner then gave the officers an oral statement claiming that he had consensual sex with
the victim.
Petitioner, who was the only witness for the defense, testified that the encounter
with the victim was consensual.
Direct Appeal and State Post-conviction Proceedings
Petitioner raised two points on direct appeal, neither of which is asserted in his
habeas petition.1 The Missouri Court of Appeals rejected these claims and affirmed the

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Petitioner’s two claims were that the trial court erred in denying his motion to
suppress the statements he made to the police; and overruling his motion to suppress and
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judgment and sentences. In a state post-conviction motion, Petitioner asserted five
claims, none of which are asserted in his habeas petition.2 The state court denied the
post-conviction motion after an evidentiary hearing, and the Missouri Court of Appeals
affirmed the denial of post-conviction relief.
Federal Habeas Petition
Petitioner does not contend that he previously raised any of the claims he now
asserts; rather he argues that he is actually innocent, and that his claims for federal habeas
relief can therefore be considered by this Court even though they were procedurally
defaulted in state court. To support his actual innocence claim, he asserts that the jury was
never made aware of the following: (1) Petitioner was mentally and/or psychologically
challenged; (2) although the perpetrator did not wear gloves, no incriminating fingerprint
evidence was recovered; (3) no incriminating pubic hair evidence was recovered; (4) the
officers conspired to frame him; (5) the DNA report may not have been properly
conducted, and may have contradicted the testimony of the State’s expert witness; (6) the
DNA report may have been the product of perjury; and (7) the DNA report “would later be
admitting over his objection at trial the results from DNA testing.
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Petitioner argued that defense counsel was ineffective for failing to “raise the issue of
forcible compulsion”; failing to advise Petitioner of the ramifications of not accepting a
plea offer; conspiring with the State to withhold from the jury Petitioner’s alibi and the
testimony of three witnesses; and failing to obtain, along with his appellate counsel,
Petitioner’s version of the facts regarding his Miranda rights; and that the State withheld
evidence of a DNA lab report.
The post-conviction motion was filed by Petitioner pro se. Appointed counsel
thereafter filed a “Statement in Lieu of Amended Motion,” stating that, based upon his
review of the record and discussions with Petitioner, he had determined that no potentially
meritorious claims had been omitted from the motion.
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excluded, or would otherwise come up missing from the court’s records in an effort to
further conceal the perjured and conflicting testimony elicited by the State to assist in the
framing of [Petitioner].” Petitioner further contends that his actual innocence is shown by
the fact that no evidence was offered at trial which established the forensic methodology of
the State’s DNA expert witness and therefore, in addition to the false testimony of the
witness regarding the DNA report, the court admitted the DNA evidence without proper
foundation and by “a potentially unqualified source.”
Petitioner then asserts ineffective assistance of counsel, citing the 11 instances of
allegedly deficient performance, none of which were presented to the state courts.3
Petitioner further claims that the State violated his constitutional rights by failing to
disclose exculpatory evidence (including that the victim was not wearing eyeglasses at the
time of the crimes), and by framing him.

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Petitioner claims that he received constitutionally ineffective assistance of trial
counsel in that appointed counsel failed to (1) diligently seek an independent mental and/or
psychological evaluation of Petitioner, (2) challenge the description of the coat used to
connect Petitioner to the crimes, (3) investigate and/or challenge the State’s lack of
fingerprint evidence, (4) investigate and/or challenge the State’s lack of pubic hair
evidence; (5) cross-examine the victim with evidence of Petitioner’s speech impediment,
(6) argue that the police framed him for the crimes, (7) challenge why the prosecutor
retrieved DNA evidence from the Missouri State Highway Patrol Crime Laboratory and
delivered the evidence to another laboratory for testing; (8) investigate and/or challenge
the forensic qualifications and/or methodology of the State’s expert witness on DNA
testing; (9) examine the DNA comparison report prior to trial and/or seek independent
testing analysis. He further claims that counsel was ineffective for allowing Petitioner to
testify at trial when he was aware that Petitioner was mentally and/or psychologically
impaired, and could not remember details about the events because he was drunk at the
time.

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Respondent argues that the habeas petition must be denied in its entirety because
Petitioner did not raise any of his federal habeas claims in state court and thus they have all
been procedurally defaulted. Respondent maintains that Petitioner cannot overcome his
defaults as he has failed to show newly discovered evidence of his actual innocence and he
cannot show cause for failing to raise his claims in state court. Lastly, Respondent argues
that in any event, Petitioner’s claims are meritless.
DISCUSSION
Procedural Default
Claims that have not been fairly presented to the state courts are procedurally
defaulted and may not give rise to federal habeas relief unless the petitioner establishes
“cause for not presenting the claim on post-conviction appeal, and prejudice from the failure,
or a fundamental miscarriage of justice-meaning that he is actually innocent.” Storey v.
Roper, 603 F.3d 507, 523-24 (8th Cir. 2010) (citing Schlup v. Delo, 513 U.S. 298, 324
(1995)).
In Schlup, the Supreme Court recognized that a habeas petitioner could present a
claim of actual innocence as a “gateway” to resurrecting procedurally defaulted claims of
constitutional error which occurred in the underlying trial, but “such a claim 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. Petitioners
asserting innocence as a gateway to defaulted claims must establish that in light of new

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evidence, “it is more likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” Id. at 327.
The Supreme Court explained in House v. Bell, 547 U.S. 518 (2006), that the Schlup
standard “is demanding and permits review only in the ‘extraordinary’ case. At the same
time, though, the Schlup standard does not require absolute certainty about the petitioner’s
guilt or innocence.” House, 547 U.S. at 538 (citations omitted). And more recently in
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court reaffirmed that “a
credible showing of actual innocence may allow a prisoner to pursue his constitutional
claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence
of a procedural bar to relief.” McQuiggin, 133 S. Ct. at 1931.
Here, the Court concludes that Petitioner has not made a showing of actual
innocence, either as a freestanding claim, 4 or as a gateway to excuse his procedural
defaults. First, none of Petitioner’s evidence in support of this claim is new evidence.
“‘Without any new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a barred claim.’” Cagle v. Norris, 474
F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup, 513 U.S. at 316); see also Rice v.

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In McQuiggen, the Supreme Court stated that it had “not resolved whether a prisoner
may be entitled to habeas relief based on a freestanding claim of actual innocence.”
McQuiggen, 133 S. Ct. at 1931. The Court has established, however, that the threshold
for any such claim, if it were recognized, would be “extraordinarily high.” Herrera v.
Collins, 506 U.S. 390, 417 (1993). The threshold, if it exists, would require “more
convincing proof” than the “gateway” standard that allows for consideration of otherwise
defaulted constitutional claims upon a showing of actual innocence. House, 547 U.S. at
555.
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Wallace, No. 4:11CV00319 SNLJ, 2014 WL 752529, at *43 (E.D. Mo. Feb. 25, 2014);
Epkins v. Norman, No. 4:11 CV 1546 DDN, 2014 WL 51353, at *4 (E.D. Mo. Jan. 7,
2014).
And second, the Court cannot say that even if all the evidence Petitioner asserts
should have been presented at trial was presented, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable doubt.5
In sum, the Court concludes that all of Petitioner’s claims are procedurally barred
from consideration on their merits because Petitioner did not properly raise them in state
court and did not demonstrate either cause and prejudice, or actual innocence, sufficient to
avoid that bar. Furthermore, the Court does not believe that reasonable jurists might find
the Court’s ruling debatable or wrong, for purposes of issuing a Certificate of Appealability
under 28 U.S.C. § 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
(standard for issuing a Certificate of Appealability) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the petition of Alfred Boss for a writ of habeas
corpus relief is DENIED.

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The Court notes that in his traverse, Petitioner makes an oblique reference to
ineffective assistance of counsel as cause to excuse his procedural defaults. It is not clear
whether he means his direct appeal counsel and/or his post-conviction counsel. He does
not present any argument as to how these attorneys were ineffective, and upon review of
the record, the Court finds no ineffectiveness on the part of these attorneys, under the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
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IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue in
this case.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 7th day of March, 2014.

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