Davidson v. Norman

Filing 52

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioners petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Docket Nos. 1, 29) is DISMISSED.IT IS FURTHER ORDERED that no certificate of appealability shall issue. 28 U.S.C. § 2253. Signed by Magistrate Judge Noelle C. Collins on 3/11/14. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DIALLO C. DAVIDSON,
Petitioner,

MICHAEL BOWERSOX,1
Respondent,

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No. 4:11CV79 NCC

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.2 After reviewing the case, the Court has
determined that Petitioner is not entitled to relief. As a result, the petition will be
dismissed.
Background
Petitioner was charged with one count of first-degree murder, two counts of
first-degree assault, and three counts of armed criminal action. Resp’t Ex. C at 1213 (Legal File, Information). A jury convicted Petitioner on all six counts. Id. at
66-71 (Jury Verdict). The trial court sentenced Petitioner to life without parole,
Petitioner is incarcerated at the South Central Correctional Center (“SCCC”).
When petitioner filed this action, Jeff Norman was the Warden at SCCC. Michael
Bowersox is the current Warden of the facility, and Bowersox is the proper
Respondent under Rule 2(a) of the Rules Governing § 2254 cases.
2
The parties consented to the jurisdiction of the undersigned magistrate judge to
resolve this proceeding. 28 U.S.C. § 636(c).
1

three consecutive life sentences, and fifteen and ten years concurrent with the life
sentences. Id. at 90-94 (Sentence and Judgment).
The Missouri Court of Appeals set forth the background of the case as
follows:
On January 5, 2004, [Petitioner] purchased a single pill of what he
believed to be synthetic heroin. [Petitioner] tested the pill but
determined that it was not actually synthetic heroin. [Petitioner] then
pursued the seller and his two companions in a high-speed car chase
through the City of St. Louis. [Petitioner’s] girlfriend, Hollie Pruitt,
and their son were also in the car with [Petitioner]. [Petitioner]
eventually cornered the three men’s car on a dead-end street.
[Petitioner] pulled a gun from his waistband and shot repeatedly at the
car. The seller of the pill died from a single gunshot wound to his
cervical spine. [Petitioner] also wounded the driver, Kevin Page. The
third man fled the scene apparently unwounded.
...
Before trial, [Petitioner’s] trial counsel filed a motion in limine to
prevent the State from referencing [Petitioner’s] arrest for the murders
of two other men in connection with Page’s identification of
[Petitioner] as the shooter. Trial counsel expected Page to testify that
he recognized [Petitioner] during the shooting because [Petitioner]
had been pictured in a newspaper with the two murdered men. Page
remembered the photographs because he had been friends with the
two victims. The photographs had appeared in a 2002 edition of the
EVENING WHIRL, a St. Louis “Crime Fighting Publication.” The trial
court ruled that Page could refer to the photographs but not to the
underlying murders.
During jury selection, the trial court discovered that the sheriff had
placed leg shackles on [Petitioner] because of security concerns
without the trial court’s prior approval. The restraints consisted of a
leg brace underneath [Petitioner’s] clothing and leg shackles with a
connecting chain on the outside of [Petitioner’s] clothing. The trial
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court determined that the shackles were not visible to the jury and
permitted the shackles to remain on [Petitioner]. Trial counsel did not
object to the shackling but moved chairs in front of counsel’s table to
obscure the jury’s view of the shackles.
At trial, the State called seven witnesses including Pruitt and Page.
Davidson v. Missouri, 308 S.W.3d 311, 314-15 (Mo. Ct. App. 2010).
At trial and over [Petitioner’s] objection, the State introduced portions
of letters [Petitioner] sent to Pruitt after the shootings and adduced
testimony from Pruitt as to her interpretation of the letters. Also over
[Petitioner’s] objection, the State introduced the report of the murder
victim’s autopsy and adduced testimony from a medical examiner.
The medical examiner who testified did not perform the victim’s
autopsy or prepare the autopsy report. The medical examiner who
actually conducted the autopsy and prepared the report did not testify
because she was “out-of-town on vacation or something.”
...
Pruitt read portions of the first letter into evidence as follows.
All I desire is to be free from all this shit. Hollie, I really
want you to know I ain’t going to do nothing to you. I’ll
kick your ass, if anything. I wouldn’t hit you in your
face. I’ll really kick your ass ‘cause these games got to
stop. I’m so tired of this bullshit.
...
I’ll move away from this place, if that would make you
comfortable, safe and secure. I promise you, ain’t no
hard feelings. All I’m asking is for another chance now
more than ever. Like I wrote before, please showa playa
love urgently.
...
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Damn, Hollie, I’m really serious and I hope you really
truly answer my request. I’m fed up and ready to change.
The hell with getting high and a lot of other shit.
...
Hollie, baby girl, I know a lot of things, but should I
expose those things? I’m a ‘G’ deep down inside and I’ll
never change that. I got a son and daughter to raise and
things I sincerely desire to do, so let me gone head and
bounce back. Straight up.
Pruitt testified that she took these statements to mean that [Petitioner]
was “just basically trying to talk, to encourage me not to come to
Court, or whatever.” Pruitt also read from [Petitioner’s] second letter.
I’m really asking, is there any possibility of me gaining
freedom again. I understand you saying this and that, but
my truest thoughts are to get there and provide for my
kids straight up. Nevertheless, Ms. Pruitt, I’m serious
and somehow I hope you find it in your heart and soul to
forgive and forget everything.
Pruitt then testified how she interpreted the statements in the second
letter.
[Prosecutor]. What did you take that to mean?
[Pruitt]. As far as what had happened and the stuff that I
have to go through as far as, you know, coming here and
being a witness and so forth and so on, being a witness to
what happened.
Missouri v. Davidson, 242 S.W.3d 409, 412-13 (Mo. Ct. App. 2007).
During cross-examination, [Petitioner’s] trial counsel attempted to
impeach Pruitt’s testimony by suggesting the State and police coerced
Pruitt’s testimony. To that end, trial counsel introduced prior
inconsistent statements from Pruitt’s pre-trial deposition. Trial
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counsel also cross-examined Pruitt regarding inconsistent statements
made during the police investigation. Trial counsel did not confront
Pruitt with the letters she wrote to [Petitioner] while [Petitioner] was
in jail. Trial counsel also chose not to use jail records demonstrating,
contrary to Pruitt’s pre-trial deposition testimony, that she visited
[Petitioner] in jail after his arrest.
Page testified that during the car chase and shooting he recognized
[Petitioner] from a picture he had seen in the EVENING WHIRL several
years previously that showed [Petitioner] with two of Page’s friends.
During Page’s testimony, the State showed him the newspaper. Page
identified each of the people in the picture, including [Petitioner].
Over trial counsel’s objection, the State moved for admission of the
newspaper, and the trial court admitted it.
After the State rested and [Petitioner] called his only witness, the trial
court examined [Petitioner] regarding whether he planned to testify.
The trial court told [Petitioner] that it did not intend to interfere in his
decision to testify, that the decision was solely [Petitioner’s], and that
unless the trial court heard from [Petitioner], it assumed that
[Petitioner] was not going to testify. [Petitioner] acknowledged that
he understood that the decision was his and that he did not intend to
testify. [Petitioner] did not testify.
Davidson, 308 S.W.3d at 315.
On direct appeal, Petitioner argued that the trial court erred in (1) allowing
the letters Petitioner sent to Pruitt to be admitted into evidence and (2) allowing the
coroner to testify regarding a testimonial autopsy report he did not prepare. Resp’t
Ex. D at 13-15 (Appellant’s Br.).
The Missouri Court of Appeals held that the letters were properly admitted
because “a witness who personally observed events may testify to his ‘matter of

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fact’ comprehension of what he has seen in a descriptive manner which is actually
a conclusion, opinion or inference, if the inference is common and accords with the
ordinary experiences of everyday life.” Davidson, 242 S.W.3d at 414.
The appellate court found that the trial erred, however, in allowing the
coroner to testify regarding an autopsy report that he did not prepare, because the
testimony violated the Confrontation Clause. Id. at 416-17. The Court applied the
rule set forth in Crawford v. Washington, 541 U.S. 36 (2004), and found that the
report was testimonial. Davidson, 242 S.W.3d at 416-17.

However, the court

found that the admission of the testimony was “harmless beyond a reasonable
doubt” under Chapman v. California, 386 U.S. 386 U.S. 18 (1967). As a result, the
court affirmed the sentence and conviction.
Petitioner filed a timely motion for postconviction relief under Missouri
Court Rule 29.15. Resp’t Ex. H at 5-25 (Legal File, Pro Se Mot.). The court
appointed counsel, and counsel filed an amended motion, which incorporated the
pro se motion. Id. at 30-50 (Legal File, Mot.). The motion court denied relief after
holding an evidentiary hearing.

Id. at 52-61 (Legal File, Findings of Fact,

Conclusions of Law, and J.).
On appeal, Petitioner argued that his counsel was ineffective for (1) failing
to object to his being shackled during the trial, (2) failing to impeach Pruitt with

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documentary evidence showing her prior inconsistent statements and propensity to
lie, (3) failing to object to evidence that Page had seen Petitioner in the EVENING
WHIRL, and (4) not permitting Petitioner to testify on his own behalf. Resp’t Ex. J
at 19-23 (Appellant’s Br.).
The Missouri Court of Appeals applied the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), to Petitioner’s claims. The appellate court
denied relief on Petitioner’s shackling claim because both defense counsel and the
trial court established that the shackles were not visible to the jury. Davidson, 308
S.W.3d at 317. The court denied Petitioner’s impeachment claim because trial
counsel’s reason for not using the letters to impeach Pruitt was reasonable trial
strategy and Petitioner failed to demonstrate prejudice. Id. at 317-18. The court
found that counsel was not ineffective for failing to object to Page’s identification
of Petitioner or the admission of the picture from the EVENING WHIRL because they
did not introduce evidence of prior bad acts, as Petitioner had argued. Id. at 31819. And the court found that Petitioner’s claim that his trial counsel prevented him
from testifying was refuted by the record. Id. at 320.
The instant petition was timely filed.
Grounds for Relief
1.

The trial court erred in overruling Petitioner’s objection to
Pruitt’s testimony regarding Petitioner’s letters and admitting
the letters into evidence.
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2.

The trial court erred in allowing the coroner to testify regarding
an autopsy report that he did not prepare.

3.

The trial court erred in allowing the sheriff’s deputy to shackle
him during the trial because the court did not make a finding
that he was a threat to courtroom security.

4.

Trial counsel was ineffective for failing to object to his being
shackled during the trial.

5.

Trial counsel was ineffective for failing to impeach Pruitt with
letters and documentary evidence showing her prior
inconsistent statements and her motive to lie.

6.

Trial counsel was ineffective for failing to file a motion to
suppress or properly object to the admission of the picture from
the EVENING WHIRL or Page’s testimony that Petitioner was the
shooter.

7.

Trial counsel was ineffective for telling him not to testify on his
own behalf.

8.

Trial counsel was ineffective for failing to make a continuing
objection to the fact that the trial court did not rule on a motion
in limine or hold a hearing for an offer of truth regarding the
state’s knowing use of perjured testimony.

9.

The prosecutor committed misconduct by failing to produce
evidence of Pruitt’s out-of-state conviction.3

10.

The trial court erred when it denied his motion in limine to
prevent Page’s testimony or the picture of Petitioner in the
EVENING WHIRL.

3

Grounds nine and ten are found in Petitioner’s amended petition [ECF No. 29] as
amended grounds one and two.
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Procedural Default Standard
To avoid defaulting on a claim, a petitioner seeking habeas review must
have fairly presented the substance of the claim to the state courts, thereby
affording the state courts a fair opportunity to apply controlling legal principles to
the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir.
2003) (quotation marks omitted).

A claim has been fairly presented when a

petitioner has properly raised the same factual grounds and legal theories in the
state courts that he is attempting to raise in his federal petition. Id. at 1021.
Claims that have not been fairly presented to the state courts are procedurally
defaulted. Id. at 1022 (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).
Claims that have been procedurally defaulted may not give rise to federal habeas
relief unless the petitioner can demonstrate cause and prejudice for the default. Id.
“[T]he existence of cause for a procedural default must ordinarily turn on whether
the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier,
477 U.S. 478, 488 (1986).
Merits Standard
“In the habeas setting, a federal court is bound by the AEDPA to exercise
only limited and deferential review of underlying state court decisions.” Lomholt

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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 Supreme Court
precedent if “the state court arrives at a conclusion opposite to that reached by
[the] Court on a question of law or . . . decides a case differently than [the] Court
has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). 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.” Id. at 407-08.
Finally, 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. 28 U.S.C. §2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.
2004).

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Ineffective Assistance of Counsel Standard
Federal habeas review of an ineffective assistance of counsel claim is
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111 (2009). First, a
petitioner must overcome the high bar of Strickland v. Washington, 466 U.S. 668
(1984), by showing that (1) counsel’s performance fell below an objective standard
of reasonableness; and (2) petitioner was sufficiently prejudiced such that “the
result of the proceeding would have been different.” Id. at 688, 694. Second,
under 28 U.S.C. § 2254, petitioner must show that the state court’s adjudication of
his ineffective assistance claim was “unreasonable.” Harrington v. Richter, –––
U.S. –––, 131 S. Ct. 770, 788 (2011). Both the Strickland standard and the
standard set forth in § 2254 are highly deferential. Ultimately, “[t]he question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Richter, 131 S. Ct. at 788.
Discussion
1.

Ground One

In ground one, Petitioner argues that the trial court erred in overruling his
objection to Pruitt’s testimony regarding the letters and admitting the letters into
evidence. He claims that the material in the letters was irrelevant and was taken
out of context. He also says that the trial court erred in allowing Pruitt to speculate

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on the intended meaning of the letters. Respondent contends that this ground
concerns state evidentiary law only and, therefore, it is noncognizable in this
proceedings.
Respondent is correct. Whether evidence was admissible under Missouri’s
evidence rules does not create a federal constitutional issue that is cognizable
under the Court’s limited jurisdiction. Estelle v. McGuire, 502 U.S. 62, 67 (1991).
“In the habeas context, ‘[r]ules of evidence and trial procedure are usually matters
of state law. A federal issue is raised only where trial errors infringe on a specific
constitutional protection or are so prejudicial as to amount to a denial of due
process.’” Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006) (quoting
Adail v. Wyrick, 711 F.2d 99, 102 (8th Cir. 1983)).
“Courts may admit evidence of threats against government witnesses on the
grounds that an effort to intimidate a witness tends to show consciousness of
guilt.” United States v. Davis, 154 F.3d 772, 780 (8th Cir. 1998); see also United
States v. Chauncey, 420 F.3d 864, 875 (8th Cir. 2005) (“Evidence of a defendant’s
threat against a witness is admissible to show consciousness of guilt.”); United
States v. Guerrero–Cortez, 110 F.3d 647, 652 (8th Cir. 1997) (“An effort to
intimidate a witness tends to show consciousness of guilt.”). Thus, because such
evidence is relevant, the Missouri Court of Appeals did not contradict federal law

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when it denied Petitioner’s claim on this ground. As a result, Petitioner is not
entitled to relief on ground one of the petition.
2.

Ground Two

In ground two, Petitioner argues that the trial court erred in allowing the
coroner to testify regarding an autopsy report that he did not prepare.

The

Missouri Court of Appeals found that the trial court erred under Crawford, but it
also found that the error was harmless beyond a reasonable doubt under Chapman.
Petitioner is not entitled to relief on this ground. First, it is not clearly
established under federal law that an autopsy report is testimonial under Crawford.
The First Circuit addressed this issue and found that it was unclear whether the
Supreme Court would find autopsy reports to be testimonial, given that they could
be distinguished from other types of reports found to be testimonial. See Nardi v.
Pepe, 662 F.3d 107, 111 (1st Cir. 2011) (“Abstractly, an autopsy report can be
distinguished from, or assimilated to, the sworn documents in Melendez–Diaz and
Bullcoming,4 and it is uncertain how the Court would resolve the question.”). In
the absence of a Supreme Court decision holding these types of reports to be
testimonial, Petitioner may not obtain federal habeas relief on this ground.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (certificates of analysis
sworn by analysts at state laboratory testimonial); Bullcoming v. New Mexico, 131
S. Ct. 2705 (2011) (certified blood-alcohol analysis report testimonial).
4

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Second, even if it were obvious that the admission of the report violated
clearly established federal law, Petitioner would still not be entitled to relief. The
prejudicial impact of a constitutional error in a state-court criminal trial is assessed
under the “substantial and injurious effect” standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993). This is so regardless of whether the state
appellate court recognized the error and reviewed it for harmlessness under the
“harmless beyond a reasonable doubt” standard of Chapman. Fry v. Piler, 507
U.S. 619, 638 (1993).
The admission of the autopsy report did not have a substantial and injurious
effect on the outcome of the trial. Pruitt testified that she saw Petitioner shoot at
the car several times. Resp’t Ex. B at 166-67 (Tr.). And Page also testified that
Petitioner shot at the car several times, hitting him in the abdomen and killing the
victim. Id. at 319-23. With this testimony available to the jury, Petitioner cannot
show that the autopsy report, which merely described the traumatic injuries to the
victim’s body, altered the outcome of the trial. Therefore, Petitioner is not entitled
to relief on ground two of the petition.
3.

Ground Three

In ground three, Petitioner argues that the trial court erred in allowing the
sheriff’s deputy to shackle him during the trial because the court did not make a

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finding that he was a threat to courtroom security. Petitioner believes that the jury
did see the shackles and hear the noise they made. He also claims that he was
prevented from aiding the defense because of the shackles. Respondent argues that
this claim is procedurally barred because Petitioner did not raise this claim in the
state courts.
Respondent is correct. Petitioner did not present this claim to the Missouri
Court of Appeals, which is a prerequisite for federal habeas review. Petitioner
offers no argument demonstrating cause and prejudice for the default. As a result,
Petitioner is not entitled to relief on ground three.
Moreover, this claim fails on the merits.

The routine use of “visible

shackles” during the guilt phase of a criminal trial is prohibited. Deck v. Missouri,
544 U.S. 622, 625 (2007). Petitioner admitted during his deposition, however, that
the jury “couldn’t probably see the shackles at the time because they had put the
chairs around the table so they couldn’t see me.” Resp’t Ex. I at 7 (Pet’r Dep.).
And both the trial court and defense counsel agreed that the jury could not see the
shackles. Federal district courts are required to give deference to the factual
findings of both the state trial courts and the state appellate courts. E.g., Sumner v.
Mata, 449 U.S. 539, 546-47 (1981). This Court is in no position to question
whether the jury could or could not have seen the shackles. So, the finding by the

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trial court, defense counsel, and Petitioner that the shackles were not visible stands.
Moreover, “brief and inadvertent exposure of [shackled] defendants to jurors is not
inherently prejudicial; the defendant must bear the burden of affirmatively
demonstrating prejudice.” United States v. Robinson, 645 F.2d 616, 617 (8th Cir.
1981). In light of the overwhelming evidence of Petitioner’s guilt, Petitioner
cannot demonstrate that being shackled during trial prejudiced him.
4.

Ground Four

In ground four, Petitioner argues that trial counsel was ineffective for failing
to object to his being shackled during the trial. This claim fails for the same
reasons as ground three. Petitioner admitted that the jury most likely did not see
the shackles, and he has not demonstrated prejudice. Consequently, Petitioner is
not entitled to relief on ground four of the petition.
5.

Ground Five

In ground five, Petitioner argues that trial counsel was ineffective for failing
to impeach Pruitt with letters and documentary evidence showing her prior
inconsistent statements and her motive to lie. Petitioner contends that Pruitt sent a
letter to him in which she stated, “Those motherfuckers are coming to get me to
either be charged or testify.” Pet. at 34.5 Petitioner maintains that this statement
contradicts her testimony at trial that she was not coerced to testify. Respondent
5

The letter is not part of the record.
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argues that defense counsel did impeach Pruitt regarding prior inconsistent
statements and that trial counsel made a strategic decision not to use the letters as
impeachment material.
During the evidentiary hearing on Petitioner’s Rule 29.15 motion, trial
counsel testified that she had read the letters and did not find anything that might
be useful to impeach Pruitt. Resp’t Ex. G at 7-8 (Hr’g Tr.). Trial counsel used
prior inconsistent statements that Pruitt had made to police detectives and in a
deposition to impeach her testimony. Plaintiff initially lied to the police and told
them she did not know about the shooting. Resp’t Ex. B at 208-09 (Trial Tr.) In
her deposition, she stated that she was concerned about being charged for the
murder. Id. at 210-11. While on cross-examination, however, counsel elicited that
she initially said that she was never worried about being charged. Id. at 209.
The Missouri Court of Appeals found that counsel’s decision not to use the
letters was reasonable trial strategy and that “trial counsel conducted an extensive
cross-examination of Pruitt regarding her prior convictions, prior inconsistent
statements, and her motives to lie.” Davidson, 308 S.W.3d at 318.
The appellate court’s ruling was not contrary to, or an unreasonable
application of, clearly established federal law. The court applied the correct legal
standard, and it applied it in a reasonable manner. Trial counsel explained her

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strategy to the motion court, and she used Pruitt’s prior inconsistent statements to
impeach her. There is no evidence in the record showing that Pruitt wrote any
letter to Petitioner stating that she was coerced into testifying because of
statements by police or prosecutors indicating that she would be charged if she did
not testify at trial. As a result, Petitioner is not entitled to relief on ground five of
the petition.
6.

Ground Six

In ground six, Petitioner argues that trial counsel was ineffective for failing
to file a motion to suppress or properly object to the admission of the picture from
the EVENING WHIRL or to Page’s testimony that Petitioner was the shooter.
Petitioner claims that evidence that he had been pictured in the EVENING WHIRL
improperly suggested prior criminal activity and bolstered Page’s testimony
because the EVENING WHIRL is known to report on criminal activity. Petitioner
also claims that Page’s testimony was tainted by improper police tactics.
Respondent counters that this claim is refuted by the record and is without merit.
Before trial, defense counsel filed a motion in limine to suppress any
evidence mentioning Petitioner’s arrest for the murder of Carl Montgomery or
David Harris, the two murder victims shown alongside Petitioner in the EVENING
WHIRL. Resp’t Ex. C at 38-39. The trial court heard the motion at the conclusion

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of voir dire. Resp’t Ex. B at 118-24. The court ruled that Page could not refer to
the alleged murders but that he could testify that he “saw a picture of [Petitioner] in
connection with pictures of two of his . . . acquaintances or friends, and that’s how
he remembers it.” Id. at 122.
During trial, the prosecutor asked Page about the car chase. Id. at 305. The
prosecutor asked Page if he had ever seen the driver before, and Page responded
that he had seen him in the EVENING WHIRL in 2002. Id. The prosecutor showed
Page a redacted copy of the front page of the EVENING WHIRL showing Petitioner
alongside Page’s two friends, which was marked as State’s Exhibit 65, and Page
identified Petitioner and his two friends. Id. at 305-07. Defense counsel did not
object. The prosecutor asked for admission of the exhibit into evidence, and
defense counsel renewed her objection. Id. at 308. The court received the exhibit
over counsel’s objection. Id.
To the extent that Petitioner seeks relief on the basis that Page’s testimony
was tainted by improper police tactics, Petitioner’s claim is procedurally barred.
Petitioner did not bring such a claim in his Rule 29.15 motion, and the Missouri
Court of Appeals found this claim to be defaulted. Davidson, 308 S.W.3d at 318.
The Missouri Court of Appeals affirmed the denial of relief without an
evidentiary hearing on Petitioner’s claim that counsel was ineffective for failing to

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move to suppress or properly object to the admission of the picture from the
EVENING WHIRL or Page’s identification testimony, finding that counsel did file a
motion to suppress and did object to the admission of the picture at trial. Id. at
319.

The court further found that “vague or speculative references to the

defendant’s involvement in other crimes” are not inadmissible and, therefore, the
picture from the EVENING WHIRL was properly admissible.

Id. at 318-19.

Therefore, counsel was not ineffective for failing to object to the admission of
admissible evidence. Id.
Petitioner has not overcome the “doubly deferential” standard necessary to
show ineffective assistance of counsel. Petitioner has not shown that counsel was
ineffective because he has not shown that the picture or reference to the EVENING
WHIRL referenced prior bad acts. Nor has he demonstrated that the Missouri Court
of Appeals decision was contrary to, or an unreasonable application of, clearly
established federal law. As a result, Petitioner is not entitled to relief on ground
six.
7.

Ground Seven

In ground seven, Petitioner claims that trial counsel was ineffective for
advising him not to testify on his own behalf because the jury might see his
shackles and presume him guilty.

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The Missouri Court of Appeals affirmed the denial of relief on this claim
because the record conclusively showed that it was Petitioner’s decision not to
testify:
After the State rested and [Petitioner] called his only witness,
[Petitioner’s] trial counsel stated that she believed that [Petitioner] did
not want to testify. Before submitting the case to the jury, the trial
court questioned [Petitioner] regarding his right to testify:
THE COURT: Mr. Davidson, it’s not my desire to
interfere with any decisions you and your lawyer make,
but we need to be clear on one thing. You have the right
to testify or not to testify, as you alone choose. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: And so unless I hear something to the
contrary from you, I will assume that you and your
lawyer are in agreement about whether you testify or not,
okay?
THE DEFENDANT: (Nodding head affirmatively).
THE COURT: Do you understand me?
THE DEFENDANT: Yes, I understand.
After the trial court sentenced [Petitioner], it examined [Petitioner]
regarding the assistance of his counsel. During this examination,
[Petitioner] did not complain about trial counsel’s failure to call him
as a witness.

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Davidson, 308 S.W.3d at 320. The appellate court also found that Petitioner
“failed to allege facts sufficient to show a reasonable probability that the outcome
of his trial would have been different.” Id. at 320-21.
This Court defers to the factual findings of the state courts. There is no
indication in the record that Petitioner indicated he wished to testify on his own
behalf. This Court agrees with the state appellate court that the record indicates
that Petitioner made a decision not to testify. As a result, Petitioner is not entitled
to relief on ground seven of the petition.
8.

Ground Eight

Petitioner claims that trial counsel was ineffective for failing to make a
continuing objection to the fact that the trial court did not rule on a motion in
limine or hold a hearing for an offer of truth of the state’s knowing use of perjured
testimony. Petitioner maintains that trial counsel knew that Pruitt was committing
perjury when she claimed that the last time she talked to Petitioner was on the day
of the arrest, January 23, 2004. Petitioner states that counsel knew that Pruitt
visited him several times in jail and that the jail logs recorded the visits. Petitioner
contends that counsel should have objected during Pruitt’s testimony but did not.

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Petitioner did not raise this claim in his appeal from the denial of
postconviction relief. As a result, this claim is procedurally barred, and Petitioner
may not obtain relief on this ground.
Furthermore, this claim is meritless. The motion court denied this claim on
the basis that the record was “devoid of any indication of perjury.” Resp’t Ex. H at
58 (Mot. Ct.’s Findings of Fact and Conclusions of Law). Petitioner’s conclusory
allegations regarding counsel’s knowledge of perjury cannot overcome the motion
court’s findings or the “doubly deferential” standard necessary to show ineffective
assistance of counsel.
9.

Ground Nine (Amended Ground One)

In ground nine, Petitioner argues that the prosecutor committed misconduct
by failing to produce evidence of Pruitt’s out-of-state convictions for forgery and a
probation violation. Petitioner states that he could have used the convictions to
impeach her on the stand when she failed to disclose them upon questioning.
Petitioner contends that this would have supported his theory that she lied on the
stand when she said he was the shooter.
Petitioner pursued this claim in Rule 91 habeas proceedings in the state
courts, and his habeas petitions were summarily denied. Resp’t Exs. N, Q.

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In Brady v. Maryland, 373 U.S. 83 (1963), the Court held that a prosecutor
violates the Due Process Clause by withholding exculpatory evidence from a
criminal defendant. The elements of a Brady claim that a § 2254 petitioner must
demonstrate are: (1) the evidence at issue must be favorable to the accused, either
because it is exculpatory or because it is impeaching; (2) the evidence must have
been suppressed by the state, either willfully or inadvertently; and (3) prejudice
must have ensued. See Banks v. Dretke, 540 U.S. 668, 691 (2004). To show
prejudice, a petitioner must show a “reasonable probability” of a different result.
Id. at 699.
The Court will assume, arguendo, that the first two requirements have been
met. Respondent maintains that Petitioner has failed to demonstrate prejudice
because he has not shown that the outcome of the case would have been different if
he had been aware of the Illinois convictions.
The Court agrees.

The jury already had reason to discount aspects of

Pruitt’s testimony, and it chose to find Petitioner guilty anyway. Moreover, Page
also identified Petitioner as the shooter. As a result, Petitioner cannot show that
the outcome of the case would have been different if the Illinois convictions had
been known, and Petitioner is not entitled to relief on ground nine of the Petition.

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10.

Ground Ten (Amended Ground Two)

In ground ten of the petition, Petitioner raises the argument that the

trial

court erred when it denied his motion in limine to prevent Page’s testimony or the
picture of Petitioner in the EVENING WHIRL. Petitioner argues that Page was
pressured and coerced by “suggestive tactics used by Detective Harrington” into
identifying Petitioner as the shooter. Petitioner claims that Harrington showed
Page suggestive lineups and threatened Page with detention. And Petitioner claims
that Page was unable to identify him as the shooter for two years after the incident.
Whether a not a motion in limine should be granted to bar certain evidence
under Missouri’s evidence rules is purely a matter of state law and is not
cognizable in these proceedings. Moreover, the ruling cannot give rise to a due
process violation because it is an interlocutory ruling subject to reconsideration
during trial. E.g., Wilkerson v. Prelutsky, 943 S.W.2d 643, 646 (Mo. banc 1997).
As a result, Petitioner is not entitled to relief on ground ten of the petition.
Conclusion
For these reasons, Petitioner is not entitled to federal habeas relief.
Furthermore, Petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.”

Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002)

(quotation omitted). Thus, the Court will not issue a certificate of appealability.
28 U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Docket Nos. 1, 29) is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall
issue. 28 U.S.C. § 2253.
A separate Judgment will be filed forthwith.
Dated this 11th day of March, 2014.

/s/Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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