Richardson v. Denney

Filing 16

OPINION,MEMORANDUM AND ORDER re: 1 filed by James O Richardson: IT IS HEREBY ORDERED that the Petition is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry E. Autrey on 01/27/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES O. RICHARDSON,
Petitioner,
vs.
LARRY DENNEY,
Respondent.

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No. 4:11-CV-0019HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner
James O. Richardson for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
[Doc. No. 1]. Respondent has filed a Response to the order to show cause [Doc.
No. 9]. Petitioner has filed a reply [Doc. No. 14]. For the reasons set forth
following the Petition will be denied.
Background
On February 2, 2006, a jury in the Circuit Court of Chariton County found
petitioner James O. Richardson guilty of one count of First Degree Murder.
On March 22, 2006, the trial court sentenced the petitioner to imprisonment
for life without parole for the offense of first degree murder.
On October 9, 2007, the Missouri Court of Appeals, Western District of
Missouri affirmed the conviction of petitioner on direct appeal. State v.

Richardson, 234 S.W.3d 626 (2007), [Doc. No. 10, Ex. J]. Thereafter, on
November 5, 2007, petitioner filed his post conviction relief motion pursuant to
Missouri Supreme Court Rule 29.15. On July 11, 2008 a hearing was conducted
on the post conviction relief motion [Doc. No. 10, Ex. K, at 1-57]. The Rule 29.15
motion was denied by the Circuit Court of Chariton County on September 18,
2008. [Doc. No. 10, Ex. L, at 28-41]. On December 29, 2009, the Missouri Court
of Appeals, Western District, affirmed the denial of the Rule 29.15 motion [Id.,
Ex. P ].
Upon the denial of petitioners’s appeal of his conviction the Missouri Court
of Appeals described the facts viewed in the light most favorable to the verdict by
noting:
In March of 2004 the sheriff’s office located a variety of
bones including a skull in a creek in rural Chariton
County. The search had been prompted by a contact
from the Randolph County sheriff about a missing
person report. Jared Hutchison, David Tesino, and spike
Richardson (appellant’s cousin) said they had last seen
Naomi White in Chariton County by a concrete
bridge. The remains were identified as Naomi White.
The skull revealed multiple fractures around the base and
the spinal column area. They indicated contact with a
large, hard object and could cause death if untreated.
Based upon information from Hutchison, Tesino, and
Richardson, the sheriff identified appellant James
Richardson as a suspect.
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In August 2003 James Richardson and his girlfriend,
Naomi White, stayed for three days at the trailer of
Jimmy and Kim Laycock. Because Kim was
angry about a sexual encounter between her husband,
Jimmy, and the victim, she told James Richardson that
Naomi was a “snitch”. Jimmy and the defendant were
drug dealers.
Around August 17, 2003, Hutchison, Spike Richardson, Tesino,
and the victim spent the day and night getting high on meth. The
next morning they headed to the Laycock trailer to buy more
drugs. Spike separated from the group for a while during the
trip and upon reuniting told Tesino that he found a list of names
in the victim’s purse that he had burned. The victim was upset
when she discovered the list was missing.
Naomi told the group she was leaving defendant and
returning to her home in Warrensburg. While White was
at defendant’s trailer getting her clothes Kim Laycock
told Hutchison and Spike Richardson she did not want
White around because she was a “snitch.” Jimmy
Laycock told them to take her somewhere and “not to
bring her back.” Hutchison, Spike Richardson, and
Tesino then dropped White off at the Moberly truck stop.
When defendant found out that they had left her at the
truck stop, defendant began yelling and screamed that he
was supposed to kill her. All of them proceeded to the
truck stop and found White. After getting White in the
car, they drove to an area near a bridge. Defendant and
White got out and defendant told the others to come back
later. After 30-45 minutes they returned to the bridge.
Hutchison saw the defendant standing beside the road
throwing up. Defendant said that “he’d killed the bitch.”
Defendant had blood on his hands and his pants were
dark and red around the bottoms. Defendant told
them they didn’t want to know where White was, that he
would take full responsibility and “snitches belong in
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ditches.” Hutchison, Tesino, and Spike Richardson later
burned White’s clothes. Defendant told Hutchison
that “he cut her throat and left her in the creek.”
After defendant met with Jimmy Laycock, Laycock told
his wife that defendant had killed White, that he was
glad she wa dead, and that defendant was leaving for
Nebraska.
In addition to this witness testimony, the sheriff searched
an abandoned trailer in the park and found a pair of jeans
with dried blood. DNA analysis found defendant”s DNA
in the waistband and White’s DNA was in the dried
blood. Defendant testified, as did others, that he was at a
party on the 18th and 19th and never left.
State v. Richardson, 234 S.W.3d 626 (2007), [Id., Ex. J, 1-3].
Grounds for Habeas Corpus Relief
Petitioner sets out four grounds for relief in this habeas corpus action:
(1) The evidence was insufficient because the testimony supporting the
verdict was biased and inconsistent. The verdict was against the weight
of the evidence.
(2) Trial counsel was ineffective for failing to introduce evidence related to
petitioner’s size near the time of the offense to demonstrate he could
not fit into the jeans seized by the sheriff-specifically his driver’s
license, jail records , and testimony from his mother.
(3) Trial counsel was ineffective in failing to call Daniel Reardon as a
witness to testify he saw the body of a woman in a house in some other
county.
(4) Petitioner’s rights were violated by the sheriff being in charge of the
jury and also testifying at trial.
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Respondent asserts that all of Petitioner’s grounds for federal habeas relief
lack merit. Respondent also argues that Ground 4 is procedurally barred as it was
not pursued in the State court.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of
judicial review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, 529 U.S. 362 (2000), held that:
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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 U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 412-13. Furthermore, the Williams Court held that “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.” Williams, 529 U.S. at 409.

Discussion
Ground 1. The evidence was insufficient because the testimony supporting the
verdict was biased and inconsistent. The verdict was against the weight of the
evidence.
Petitioner raised this very same point in his appeal and in essence asserts the
same arguments in this federal Habeas action as he did in his direct appeal. The
review authority of this court is strictly limited. Under 28 U.S.C. Section 2254(d),
this Court must defer to the decision of the state court unless that decision was
contrary to or involved an unreasonable application of federal law as determined
by the United States Supreme Court, or involved an unreasonable determination of

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facts. The crux of petitioner’s argument is the doctrine of destructive
contradiction. The United States Supreme Court has never held that this doctrine is
part of due process. At best, the doctrine is one of the state court’s to determine
what evidence is substantial. The question for this Court is not whether a state
court may have constitutionally erred in the application of state court law but
whether it unreasonably applied federal law as determined by the Supreme Court
of the United States.
In Jackson v. Virginia, 443 U. S. 307, 99 S. Ct. 2781 (1978), the Court
plainly noted the standard for sufficiency of the evidence and that the due process
clause required that evidence be sufficient to support guilt, that is, taking the
evidence in the light most favorable to the State, could a reasonable trier of fact
determine the defendant was guilty 443 U. S. at 318-20. In the assertion of
conflicting evidence the reviewing court must assume the trier of fact resolved
those issues in favor of the prosecution. McDaniel v. Brown, 130 S. Ct. 665, 673
(2009). Here there was some contradiction in the testimony of witnesses, however
the DNA of the defendant was discovered on a pair of jeans seized by the sheriff
along with blood containing the DNA of the victim. In addition, the defendant
admitted the killing of the victim to a number of people. For all of the above
reasons this ground is denied.
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Ground 2. Trial counsel was ineffective for failing to introduce evidence
related to petitioner’s size near the time of the offense to demonstrate he could
not fit into the jeans seized b the sheriff-specifically his driver’s license, jail
records ,and testimony from his mother.
Ground 3. Trial counsel was ineffective in failing to call Daniel Reardon as
a witness to testify he saw the body of a woman in a house in some other county.
In Grounds 2 and 3, petitioner alleges that he received constitutionally
ineffective assistance of counsel. In Strickland v. Washington, 466 U. S. 668, 686
(1984) the Supreme Court held that federal habeas corpus relief is available when
“counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” In
Strickland, the inquiry focuses around whether counsel’s performance “fell below
an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668,
687-88 (1984). The defendant must also establish prejudice by showing “there is a
reasonable probability that, but for counsel’s but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
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counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim would
have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92
F.3d 666, 671 (8th Cir.1996). Courts seek to “eliminate the distorting effects of
hindsight” by examining counsel’s performance from counsel’s perspective at the
time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
2006).
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A review of the exhibits filed with this Court including testimony from the
Rule 29.15 hearing and the Appellate record, this Court is again mindful that it
must defer to the decision of the state court unless that decision was contrary to or
involved an unreasonable application of the federal law as determined by the
United States Supreme Court, or involved an unreasonable determination of facts.
Here, the Missouri Court utilized the Strickland standard and test. In
reviewing the trial testimony in relation to the assertion of the uncalled testimony,
there is no basis for this Court to determine if there was an unreasonable
application of federal law or unreasonable determination of the facts. There was
testimony from an expert that Defendant’s DNA was on the jeans and the victim’s
DNA was in the blood spots on the jeans. There was testimony regarding the
defendant’s size in 2003. In light of these specific facts, and the totality of all the
evidence presented at the trial and on the hearing of the 29.15 motion, and its
subsequent review, Ground 2 is denied. The decisions of the Missouri courts were
reasonable factually and legally.
As to Ground 3, the testimony of Reardon, as noted in his appearance at the
Rule 29.15 hearing, would have been that he was shown a body of a female at a
house in August 2003. [Doc. No. 10, Ex K, page 20]. In his testimony and through
cross-examination, Reardon admitted he had multiple convictions for burglary
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[Id., 19, 22-23]. He stated he talked to petitioner’s trial cousel before trial and was
brought to Chariton County as a possible witness. [Id., 23-24]. Reardon also stated
that he refused to testify at that time. [Id., 24-25]. Again the Missouri courts
applied the Strickland test and standard. There was no reason presented by
petitioner as to why trial counsel decided to not call Reardon. However, there are
two obvious reasons why Reardon would not be called. He refused to testify at the
time, and he had a prior record which would have been used to impeach his
testimony. The decision of the state court should be sustained if there are potential
reasonable grounds for opting to not call a witness. Cullen v. Pinholster, 131 S.
Ct. 1388 (2011). As the decision of the Missouri courts were reasonable factually
and as a matter of law, Ground 3 is denied.
Ground 4. Petitioner’s rights were violated by the sheriff being in charge of
the jury and also testifying at trial.
It is here noted that his claim was not part of his direct appeal. [Doc. No.
10, Ex. G]. The amended motion included the claim of counsel as ineffective for
not raising the issue at trial. [Id., Ex. L, 13, 21-23]. The claim was not, however,
included in the appeal of the denial of the Rule 29.15 motion. [Id., Ex. M].
Richardson, in an attempt to re-open post conviction matters, claimed post
conviction counsel ineffective in the representation on this issue. [Id., Ex. Q].

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Pursuant to 28 U. S. C. §2254 (b) a petitioner must exhaust state remedies
before presenting a claim for review. In order to exhaust the petitioner must have
presented the “substance” of the claim to the state courts. Anderson v. Harless,
459 U. S. 4, 6, 103 S. Ct. 276, 277 (1982). A claim is not fairly presented when
factual allegations with a significant impact on the merits are raised for the first
time in federal court. Stranghoener v. Black, 720 F.2d. 1005, 1007-09 (8th Cir.
1983). That is to say the factual basis and legal basis for the claim must have been
raised with the state courts. King v. Kemma, 266 F. 3d 816, 821 (8th Cir. banc
1001).
A federal habeas petitioner has procedurally defaulted on a claim when he
has not properly exhausted state remedies on a claim and the time for doing so has
expired. Welch v. Lund 616 F. 3d 756, 758 (8th Cir. 2010). Habeas review is only
available if petitioner has “cause and prejudice” excusing the procedural default.
Id. at 760.
Richardson initially included the claim in his amended motion, however,
motion counsel opted to not present evidence on the issue, and it was not raised on
appeal from the denial of the amended motion. [Doc. No. 10, Ex. K, 5, Ex. L, 13,
21-23, Ex. M]. This failure to do so is an independent state procedural bar to the
revival of the claim at a later time. Even though he tried to re-open the state
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proceeding this failed as this was the abandonment of an individual claim rather
than the abandonment of the whole claim. The claim was not, therefore, properly
presented to the motion court nor the appellate court. Respondent properly asserts
and the Court agrees that this ground should be denied as procedurally barred.
The Court has reviewed the trial record, the Missouri court rulings, opinions
and decisions. It has further reviewed all pleadings, motions and memoranda
before it. The Court, concluding its review under AEDPA, denies the petition for
habeas corpus relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). This Court finds that Petitioner has not made a
substantial showing of the denial of a constitutional right. A Certificate of
Appealability will therefore not be issued.
Accordingly,
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IT IS HEREBY ORDERED that the Petition is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 27th day of January, 2014.

_________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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