McGuinness v. Luebbers

Filing 13

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED without further proceedings. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 03/31/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MATTHEW J. McGUINNESS,
Petitioner,
v.
AL LUEBBERS,
Respondent.

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No. 4:11CV270 TCM

MEMORANDUM AND ORDER
Matthew J. McGuinness (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. 7], including materials from the underlying state court proceedings.
This matter is before the undersigned United States Magistrate Judge for review and
final resolution of the petition.1 Before addressing the grounds for relief, the Court will
determine whether the Court has jurisdiction to resolve Petitioner's petition due to notice
from Petitioner that he now resides at a street address in the St. Louis, Missouri area, rather
than at a state correctional facility. When Petitioner filed this habeas proceeding, he was
incarcerated at the Farmington Correctional Center. "Because [Petitioner] was in the custody
of the State of [Missouri] when he filed his habeas petition, the 'in custody' requirement of
28 U.S.C. § 2254 is satisfied" and this Court has jurisdiction "to entertain his petition" even

1

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

though Petitioner may have been released from such custody during the pendency of this
habeas proceeding. Beets v. Iowa Dep't of Corr. Servs., 164 F.3d 1131, 1133 n.2 (8th Cir.
1999) (citing Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968)); see also Jones v. Jerrison,
20 F.3d 849, 852 n.1 (8th Cir. 1994) (citing Carafas, 391 U.S. at 238-39). Under these
circumstances, the Court has jurisdiction to resolve the petition.
Having carefully considered the record, including the parties' materials, and relevant
legal authority, the Court finds that Petitioner's petition presents four grounds for relief, that
ground one lacks merit, and that grounds two through four are procedurally barred. The
Court will, therefore, deny the petition without further proceedings.
Background
On June 10, 2008, Petitioner was charged by information with several offenses that
allegedly occurred on January 1, 2008, including driving while intoxicated, in violation of
Mo. Rev. Stat. § 577.010, and driving while revoked, in violation of Mo. Rev. Stat. §
302.321.2 (Information, Legal File, Resp't Ex. A, at 8.) By an amended information, these
two charges included allegations that Petitioner had two prior alcohol-related driving-whileintoxicated offenses from incidents occurring on July 2, 1993, and July 23, 1995; and that
2

Petitioner was also charged with possession of a controlled substance in violation of Mo.
Rev. Stat. § 195.202; possession of drug paraphernalia with intent to manufacture amphetamine, in
violation of Mo. Rev. Stat. § 195.233; and attempt to manufacture a controlled substance, in
violation of Mo. Rev. Stat. § 195.211, on January 1, 2008. (Information, Legal File, Resp't Ex. A,
at 9; Am. Information, Legal File Resp't Ex. A, at 11.) By a second amended information, the latter
charge was amended to a charge that Petitioner was in possession of a chemical with the intent to
create a controlled substance, in violation of Mo. Rev. Stat. § 195.420. (Second Am. Information,
Legal File, Resp't Ex. A, at 28; see also Trial Tr., Resp't Ex. 1, at 14.) The jury found Petitioner was
not guilty of these offenses. (Verdict Forms, Legal File, Resp't Ex. A, at 49-51.)
-2-

Petitioner was a prior and persistent offender. (Am. Information, filed Sept. 3, 2008, Legal
File, Resp't Ex. A, at 10-11.) By a second amended information, Petitioner was charged with
the same two offenses, with the second count changed by the addition of allegations that
Petitioner had three prior driving-while-revoked convictions and the inclusion of one of
Petitioner's prior alcohol-related driving convictions. (Second Am. Information, Legal File,
Resp't Ex. A, at 27; see Trial Tr., Resp't Ex. 1, at 14-15.)
Trial was scheduled to begin on September 11, 2008. (Aug. 27, 2008 entry on docket
sheet, Legal File, Resp't Ex. A, at 3.) The docket sheet reflects that, on August 28, 2008,
Petitioner filed a motion to compel the production of discovery or in the alternative to impose
sanctions. (Aug. 28, 2008 entry on docket sheet, Legal File, Resp't Ex. A, at 3.) That motion
is not available in the record. In open court on September 3, 2008, Petitioner's counsel stated
he filed a motion to compel lab results regarding the analysis of Petitioner's urine sample,
which motion might be moot when the lab results were provided, and asked that it be taken
up on Friday, the day the results were reportedly going to be provided. (Sept. 3, 2008, Hr'g
Tr. in Trial Tr., Resp't Ex. 1 at 7-8, 10.) During that hearing, Petitioner's counsel also
advised that the prosecutor had told him the "urinalysis is presumptively positive at this time,
but it's not conclusive," and she hoped to have the results back by Friday. (Id. at 8.)
Three days before the trial date, Petitioner's counsel filed a motion seeking an order
either in limine to exclude criminalist Jeremy Jones's testimony and lab report regarding the
analysis of Petitioner's urine sample, or to continue the trial so that Petitioner could depose
Jones regarding the testing of Petitioner's urine for drugs. (Pet'r Mot., Legal File, Resp't Ex.
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A, at 17-18.) Counsel advised that he had received the lab report by facsimile that day. (Id.)
The trial court heard the motion before voir dire on September 11th, at which time
Petitioner's counsel clarified that he wanted to depose Jones and send the urine sample out
for an independent test before Jones testified. (See Trial Tr., Resp't Ex. 1, at 20-23.) The
prosecutor responded,
the State informed [Petitioner's] counsel on Tuesday, September 2nd, that the
lab report would be forthcoming. I understand it was mentioned in the report.
[Petitioner's] counsel knew there was a urine sample taken. As soon as he
brought it up, actually before he brought it up I believe we told him that report
would be forthcoming. We then gave him the preliminary findings after I
spoke to the criminalist over the phone a couple days later on September 5th.
We got the – we transferred the report to [Petitioner's counsel] within hours of
when the State received it. He knew there was a ur[i]nalysis done. It was no
surprise to him. He[] has actually spoken with the criminalist before today.
It's my understanding he spoke with the criminalist yesterday and had an
opportunity to ask him all the questions that he wanted to . . . .
THE COURT: All right. [Petitioner's counsel], anything further?
[PETITIONER'S COUNSEL]: No, Judge.
THE COURT: Well, I understand the motion. I think it's a little late
when the case has been set for trial a couple of months.
[PETITIONER'S COUNSEL]: The case has not been set for trial a
couple months, Judge. This trial was actually moved up over my objection to
September 11th.
[PROSECUTOR]: Judge, the case goes back to [Petitioner's] first
appearance when he waived arraignment in May of 2008. I believe he was
arra[ign]ed in the circuit level the beginning of July and it was to be set
beginning of August. [Petitioner's counsel] had ample opportunity to raise this
issue.
THE COURT: All right. It was originally scheduled for October 30th
and then the State did file a motion to basically reset it, move it up because –
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because of the request for disposition. But there has been ample time prior to
the week of trial to request those things. I'm not inclined to continue the trial
for an additional test when the person who did the test will be available for
both direct and cross-examination. So the motion to exclude the criminalist,
Jeremy Jones, and the lab report – well the lab report's not going to be sent to
the jury any way. They may refer to it but it's not going to be included.
(Id. at 22-23.) The court also allowed Petitioner's counsel to speak with Jones before he
testified. (Id. at 23.)
The court then found, after considering the State's exhibits and the parties' arguments,
that Petitioner was a prior and persistent driving-while-intoxicated offender, which enhanced
the charged driving-while-intoxicated offense to a class D felony; that the driving-whilerevoked charge was elevated from a misdemeanor to a felony based on four of Petitioner's
prior convictions;3 and that Petitioner was a prior and persistent felony offender, which
enhanced the maximum range of punishment "on all five counts." (Id. at 33-42.) The court
also questioned Petitioner about his right and decision to testify. (Id. at 42-44.)
During trial, the State presented the testimony of five witnesses - John Malcolm, a
lieutenant with the City of Wright City Police Department, (id. at 168-233); Eric Kessler, a
trooper with the Missouri State Highway Patrol, who is a certified drug recognition expert
(DRE) or a trooper trained to identify drug-impaired drivers (id. at 234-63); Jeremy Jones,
a criminalist with the Missouri State Highway Patrol Crime Lab in Cape (id. at 264-87);

3

The status of the driving-while-revoked charge as a misdemeanor or felony offense is not
clear because, after the conclusion of trial and prior to sentencing, the trial court denied the State's
offer to submit proof reportedly necessary to permit use of one of the prior convictions to elevate
the driving-while-revoked offense from a misdemeanor to a felony under the relevant state statutory
provision. (See Tr. of Dec. 2, 2008 Hr'g, part of Trial Tr., Resp't Ex. 1, at 414-17.)
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James Burgio, a criminalist with the Missouri State Highway Patrol Crime Lab (id. at 28896); and Chad Fitzgerald, a deputy with the Warren County Sheriff's Department, who has
specialized training in drug investigations and the manufacture of methamphetamine (id. at
298-309). Petitioner also testified (id. at 324-62), and presented the testimony of Charles
Fields, Petitioner's friend, who stated he drove Petitioner to a location in St. Louis County
late on December 31, 2007, and dropped Petitioner off (id. at 310-20).
Lieutenant Malcolm testified that he stopped Petitioner's vehicle, a truck, during the
early morning hours of January 1, 2008, after observing Petitioner drive into the oncoming
lane of traffic several times; that, when he approached the truck, he smelled an odor he
identified "as burnt marijuana," noted that Petitioner's "eyes were blood shot [and] watery"
with constricted pupils, and found Petitioner slow to provide information and obtain his
identification from his wallet. (Id. at 168-72.) As a result of these observations, Lieutenant
Malcolm administered three field sobriety tests, which indicated that Petitioner was impaired.
(Id. at 172-84.) At some point during their interaction, Lieutenant Malcolm retrieved a black
leather jacket from the vehicle for Petitioner, because it was below freezing outside; searched
it before handing it to Petitioner; and found a "standard U-100 insulin syringe" in an inside
pocket. (Id. at 196-99.)
Another officer, Missouri State Trooper Bill Able, who had been called to the scene,
administered a portable breath test, which did not indicate the presence of alcohol in
Petitioner's blood. (Id. at 185.)

-6-

Petitioner was then arrested for suspicion of driving under the influence or in an
impaired condition and for operating a motor vehicle with a revoked driver's license, and
transported to the Warren County Sheriff's Department. (Id.; see id. at 216.)
Lieutenant Malcolm stayed at the scene and searched the truck. (Id. at 199-200.) He
found, on the front passenger seat under clothing, a ten-count package of standard U-100
insulin syringes containing nine syringes. (Id. at 200-01.) Additionally, he found, under the
driver's seat, a "glass smoking device with burnt residue," a plastic bag with what "appeared
to [be] residue," and a "small plastic bag corner containing an orange powdered substance";
in a tool box in the bed of the truck, a "single burner electric plate" and a digital scale "with
a powdered substance residue on [its] face"; and, in a duffle bag in the truck's passenger
compartment, "a standard pill container which contain[ed] a large quantity of match box
striker surfaces," "a dark maroon colored substance," men's clothing, toiletries, and "letters
that were addressed to" Petitioner. (Id. at 201-13.) When Lieutenant Malcolm subsequently
arrived at the Sheriff's Department he received from a staff member "plant-like material that
was recovered from" Petitioner; and he obtained a urine sample from Petitioner. (Id. at 21314, 216, 217-18.)
While Petitioner was at the Sheriff's Department, Trooper Kessler advised Petitioner
of his rights under Miranda and evaluated Petitioner by administering a twelve-step test and
the three field sobriety tests, by taking Petitioner's vital signs, by checking Petitioner's pupils'
size, by looking for signs of drug ingestion - which resulted in finding "a green film down
the center of [Petitioner's] tongue and . . . heat bumps [from inhaling something hot] on the
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back of his tongue," as well as "a lot of open wounds" on Petitioner's right arm and two
needle marks on Petitioner's arm, and by interrogating Petitioner about his drug use. (Id. at
186, 236-55.) As a result of his evaluation, Trooper Kessler opined that Petitioner "was
under the influence of [a] narcotic analgesic [and perhaps using more than one drug] and was
not able to safely operate a motor vehicle." (Id. at 256-58.)
Criminalist Jones tested Petitioner's urine sample and found it contained a "breakdown product of THC which is found in marijuana," methamphetamine, amphetamine,
morphine, codeine, "[a] couple of anti-histamines," and "an anti-depressant called
nortriptyline." (Id. at 267.) He classified those drugs, including the codeine and morphine,
which he classified as "[n]arcotic anlagesics," and testified to their effects on individuals
ingesting them; and stated that his report contained the results to which he had testified. (Id.
at 267-81.) Jones's lab report was admitted into evidence, and, upon the jury's request, sent
to the jury room. (Id. at 281, 407.)
Criminalist Burgio testified to testing several items of evidence, including the glass
pipe found in the truck, which did not contain any controlled substance; the plant material
seized from Petitioner, which was marijuana; a powder found in Petitioner's vehicle, that
contained less than a gram of methamphetamine; and the maroon powder found in the duffle
bag in Petitioner's vehicle, which tested positive for methamphetamine by "gas
chromatography/mass spectrometry," but not by "screening tests." (Id. at 289-96.)
Deputy Fitzgerald testified about the methods of manufacturing methamphetamine,
including the ingredients and supplies needed. (Id. at 299-309.)
-8-

During his testimony, Petitioner discussed his prior convictions, as well as his
perspective on what happened in the hours before and after midnight of January 1, 2008, the
prescribed medications he took, and the items found in the truck. (Id. at 324-51.) He
explained that his license was revoked from 1993 until September 15, 2007, and he was
unable to afford to take a course required before he could get the license reinstated after that
date. (Id. at 325-27.) The vehicle he was driving on January 1, 2008, was a truck he had
sold to someone, who had not made required payments and was not responding to Petitioner's
efforts to contact him. (Id. at 326-34.) On New Year's Eve he received a call telling him
where the truck was. (Id. at 334.) Fields drove him to the truck's location and Petitioner took
the truck, with some of the purchaser's belongings in it, including a tool box and clothing.
(Id. at 335.) At the time he was stopped on January 1, 2008, Petitioner was driving the truck
to a friend's home in Warren County; he had planned to wait for the purchaser to call him to
either get the rest of the money owed or keep the truck. (Id.) After the stop, when
Lieutenant Malcolm retrieved a black leather jacket from the truck for Petitioner, a jacket in
which a syringe was found (id. at 198), Petitioner told Lieutenant Malcolm that the jacket
was not his, but instead a "green nylon coat" was his. (Id. at 340.) Petitioner also testified
that he had been diagnosed with clinical depression and "ADD," and has taken medications,
including "amphetamine salt," for those conditions "for years." (Id. at 342-44; 348-49.)
A jury found Petitioner guilty of the two counts, driving while intoxicated and driving
while his license was revoked. (Verdict Forms, Legal File, Resp't Ex. A, at 47-48.)

-9-

The trial court subsequently sentenced Petitioner to a seven-year term of
imprisonment on each of the two counts, with the sentences running concurrently.
(Sentencing Hr'g Tr., Resp't Ex. F, at 10; Sentence and J., Legal File, Resp't Ex. A, at 59-61.)
Prior to sentencing, Petitioner objected that references to certain prior arrests as set forth in
the Sentencing Assessment Report (SAR) were incorrect. (See, e.g., Sentencing Tr., Resp't
Ex. F, at 4-5.) The court said it would ignore approximately the first page and a half of the
SAR reporting Petitioner's prior record, and found that, even ignoring those statements, the
SAR advised that Petitioner had "at least 15 arrests, mostly convictions, in the last 14 years."
(Id. at 9-10.)
On direct appeal, Petitioner raised one point of error: that the trial court violated
Petitioner's rights to due process, a fair trial, and to present a defense, as guaranteed by the
Sixth and Fourteenth Amendments, in overruling his motion to exclude a criminalist (Jones)
and his lab report from trial, or in the alternative, to continue the case, because the
criminalist’s report was not provided to the defense until three days before trial. (Pet'r Br.,
Resp. Exh. B, at 10, 11.) Petitioner argued that this violation prejudiced him because that
report and the related testimony "were the only direct evidence that he had controlled
substances in his system at the time he was arrested." (Id.)
The Missouri Court of Appeals for the Eastern District of Missouri summarily
affirmed the trial court's sentence and judgment in a per curiam order, accompanied by a
memorandum sent only to the parties advising them of the reasons for the order. (Per curiam
Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Feb.
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23, 2010, Resp't Ex. C.) In denying Petitioner's point on appeal, the Missouri Court of
Appeals stated
In his only point on appeal, [Petitioner] claims the trial court abused its
discretion in overruling his motion to exclude Je[remy] Jones (hereinafter,
"Witness") and his laboratory report from trial. In the alternative, [Petitioner]
alleges the trial court erred in not granting him a continuance to depose
Witness and seek an independent urinalysis.
Essentially, [Petitioner]'s claim is that the trial court abused its
discretion in permitting the State's late endorsement of Witness. [Petitioner]
argues that without the testimony of Witness and the laboratory report, the
only evidence the State would have been able to present is the testimony of the
various officers' observations of [Petitioner] on the night he was arrested.
Hence, the State would have been unable to prove beyond a reasonable doubt
that [Petitioner] was driving while intoxicated.
Pursuant to [Mo. S. Ct.] Rule 23.01(e), it is within the trial court's
discretion to permit the late endorsement of any witness after giving notice to
the defendant. In considering whether the trial court abused its discretion, this
Court considers the following factors:
(1) Whether the defendant waived the objection;
(2) Whether the state intended surprise or acted deceptively or in bad
faith, with the intention to disadvantage the defendant;
(3) Whether in fact [the] defendant was surprised and suffered any
disadvantage; and
(4) Whether the type of testimony given might readily have been
contemplated.
Moss v. State, 10 S.W.3d 508, 515 (Mo. banc 2000). "The main consideration
is whether the late disclosure of witnesses resulted in fundamental unfairness
or prejudice to substantial rights of the defendant." State v. Dowell, 25 S.W.3d
594, 610 (Mo. [Ct.] App. . . . 2000) (quoting State v. Thomas, 965 S.W.2d 396,
399 (Mo. [Ct.] App. . . . 1998)).

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There is nothing in the record indicating the State intended to surprise,
deceive, or act in bad faith to [Petitioner]'s disadvantage in endorsing Witness.
[Petitioner] was arrested for driving while intoxicated on January 1, 2008, and
at that time, he provided a urine sample for analysis. The State contacted
[Petitioner's] counsel on September 2, 2008, stating that a laboratory report
would be forthcoming as soon as it was prepared. On September 5, 2008, the
State contacted [Petitioner's] counsel with the preliminary laboratory results.
The State received the final laboratory report on September 8, 2008, and faxed
it to [Petitioner's] counsel within hours. [Petitioner's] counsel spoke with
Witness on September 10, 2008, and was given an opportunity to speak with
Witness again prior to trial the next day. [Petitioner] knew the report was being
prepared and its preliminary results; there was no surprise. Further, this sort
of testimony should have been contemplated by [Petitioner] since he provided
a sample of urine to be tested and was on trial for driving while intoxicated.
After the trial court allowed the late endorsement of Witness,
[Petitioner] sought a continuance to depose Witness and receive an
independent urinalysis. The trial court is granted broad discretion in its
decision to grant or deny a continuance. State v. Clark, 263 S.W.3d 666, 669
(Mo. [Ct.] App. . . . 2008), overruled on other grounds State v. Daws, 311
S.W.3d 806 (Mo. 2010) (en banc)]. "Reversal is not warranted unless there is
a very strong showing that there was an abuse of discretion resulting in
prejudice." State v. Salter, 250 S.W.3d 705, 712 (Mo. banc 2008).
[Petitioner] alleges the continuance would have aided him in preparing
a rebuttal to Witness' testimony and laboratory report. However, this Court
fails to see how further investigation into Witness' testimony would have aided
the preparation of [Petitioner]'s defense since [Petitioner] questioned Witness
prior to trial and knew the laboratory results.
[Petitioner] next claims Witness' testimony is the only scientific link
demonstrating he was driving while intoxicated. Hence, [Petitioner] believes
he was prejudiced by Witness' testimony because the State would have been
unable to prove its case against him otherwise.
A person is guilty of driving while intoxicated "if he [or she] operates
a motor vehicle while in an intoxicated or drugged condition." [Mo. Rev. Stat.]
Section 577.010. "'Intoxication may be proven by any witness who had a
reasonable opportunity to observe the defendant's physical condition, and
intoxication is usually evidenced by unsteadiness on the feet, slurred speech,
lack of body coordination and impaired motor reflexes.'" State v. Cain, 287
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S.W.3d 699, 706 (Mo. [Ct.] App. . . . 2009) (quoting State v. Scholl, 114
S.W.3d 304, 307 (Mo. [Ct.] App. . . . 2003)). "Furthermore, the State is not
required to admit evidence of the results of a chemical test to prove a
defendant's intoxication. It is the fact, not the degree, of intoxication that is the
significant issue to consider." State v. Edwards, 280 S.W.3d 184, 189 (Mo.
[Ct.] App. . . . 2009) (internal citations omitted).
In this case, there were two qualified police officers who testified at
[Petitioner]'s trial. The first officer observed [Petitioner] driving. The officer
followed [Petitioner] and saw him cross into the other lane of traffic several
times. After pulling [Petitioner] over, the officer detected the smell of burnt
marijuana as he approached [Petitioner]'s vehicle. [Petitioner] retrieved his
Missouri identification card, after an "inordinate amount of concentration[],"[]
and the officer discovered [Petitioner]'s driving privileges were revoked. The
officer testified [Petitioner]'s responses to his questions were slow and
inarticulate. The officer observed [Petitioner]'s eyes to be bloodshot and
watery, and his pupils were constricted. [Petitioner] attempted, and failed,
three field sobriety tests. This officer also searched [Petitioner]'s vehicle. He
discovered ten syringes, a glass smoking device with burnt residue, part of a
plastic bag with resid[u]e, a single burner plate, a digital scale with powdered
residue, a pill bottle with match box strikers, and a bag with an orange
powdered substance and a dark maroon powdered substance.
The second officer, a drug recognition expert, encountered [Petitioner]
at the Sheriff's Department following [Petitioner]'s arrest. This officer
performed a twelve-step drug evaluation of [Petitioner], and he repeated the
field sobriety tests. Once again, [Petitioner] failed the field sobriety tests. The
officer took [Petitioner]'s pulse three times during his evaluation and it was
below average. [Petitioner]'s body temperature was extremely low and he had
open wounds on his arm, including what the officer believed were needle
marks. The officer observed [Petitioner]'s pupils to be constricted severely and
his tongue had a green film down the center with heat bumps on the back of
it. Further, [Petitioner] told this officer that he was on a lot of drugs.
"Witness credibility is a matter reserved for the jury." State v.
Williams, 277 S.W.3d 848, 853 (Mo. [Ct.] App. . . . 2009). Hence, the jury
may believe all, some or none of the testimony of the witnesses presented at
trial. Edwards, 280 S.W.3d at 189. The testimony of the two officers was
sufficient to find [Petitioner] guilty of driving while intoxicated beyond a
reasonable doubt. Point denied.

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The judgment of the trial court is affirmed.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Feb. 23, 2010,
Resp't Ex. C, at 2-5 (twenty-eighth alteration in original).) The state appellate court issued
its mandate in Petitioner's direct appeal on March 18, 2010. (Mandate, dated Mar. 18, 2010,
Resp't Ex. D.)
Petitioner did not pursue review in the Missouri Supreme Court or United States
Supreme Court, and did not file a motion for post-conviction relief under Missouri Supreme
Court Rule 29.15. (See, e.g., Pet'r Pet. at 3, 4 [Doc. 1 at 2, 3].)
In February 2011, Petitioner timely filed his federal habeas petition. In that petition,
Petitioner seeks relief on four grounds. First, Petitioner contends that his attorney "was
unable to obtain evidence [regarding the results of testing his urine sample] prior to the trial."
For his second ground for relief, Petitioner urges the prosecution failed to prove Petitioner
was a persistent offender, with respect to the driving-while-revoked offense, in that the
prosecutor failed to provide necessary proof regarding one of the prior driving-while-revoked
convictions. Third, Petitioner contends that there were "false allegations [in] the sentencing
advisory report" used by the sentencing court to determine his sentence. Finally, in his fourth
ground, Petitioner contends that his trial attorney provided ineffective representation in that
he "failed to obtain evidence that should have been presented at [Petitioner's] trial and
"waited much to[o] long to file[] a motion to compel" production of the evidence used against
Petitioner at trial so that the evidence was not made available prior to trial.

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In general, Respondent counters that the last three grounds for relief are procedurally
barred and may not be addressed on their merits; and, in any event, all of the grounds for
relief lack merit.
Discussion
Respondent characterizes ground one as presenting a claim that "the trial court erred
in allowing the urine sample evidence, because it was provided to the defense too late."
(Resp't Response at 3, 7 [Doc. 7 at 3, 7].) As such, Respondent contends that Petitioner
presented that claim in his direct appeal and the state appellate court reasonably resolved the
issue on the merits in a manner that was not contrary to, but was consistent with, clearly
established federal law. In his petition, Petitioner alleges that he presented ground one in his
direct appeal, see Pet'r Pet. at 6 [Doc. 1 at 5], but did not present grounds two through four
on direct appeal, see id. at 8, 9, and 11.
For the Court to consider the merits of ground one, the claim must be the same as the
sole claim Petitioner pursued in his direct appeal. This is because a petitioner seeking habeas
review must have fairly presented the substance of his 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) (internal
quotation marks and citations omitted) (citing, in part, to Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam)); accord Baldwin v. Reese, 541 U.S. 27, 29 (2004). Specifically, to
satisfy this fair presentation requirement, Petitioner must "raise[] the same factual grounds
and legal theories in the state courts which he is attempting to raise in his federal habeas
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petition." Wemark, 322 F.3d at 1021 (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th
Cir. 1996) (internal quotation marks and citations omitted)).

Due to the parties'

characterization of ground one as the claim Petitioner pursued in his direct appeal, the Court
will construe ground one as presenting only a claim that the trial court violated Petitioner's
constitutional rights by denying a continuance and admitting into evidence Jones's testimony
and lab report because Petitioner did not receive the lab report until three days prior to trial.
Because Petitioner presented this claim, as construed, on direct appeal and the state appellate
court addressed the merits of this claim, the Court will consider the merits of Petitioner's first
ground for relief.

Before addressing the merits of that ground, the Court will discuss Respondent's
contention that grounds two through four are procedurally barred and may not be considered
on their merits.4 If the Court finds any of these grounds not procedurally barred, then the
Court will consider the merits of the claim or claims along with the merits of ground one.
Procedural Default (Grounds Two through Four). Ground two may be characterized
as a claim of prosecutorial error or trial court error in applying a state statute setting forth
requirements for proof of prior convictions; ground three is a claim of trial court error, and
ground four is a claim that Petitioner's trial attorney provided ineffective assistance of
4

Because Respondent does not challenge any of Petitioner's grounds for relief on the basis
that the ground is not cognizable in this federal habeas proceeding, the Court will address each
ground assuming arguendo that it presents a federal constitutional claim cognizable in this
proceeding. By doing so, the Court is not resolving whether or not each of Petitioner's grounds for
relief is cognizable here.
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counsel. Respondent argues that grounds two and three are defaulted because Petitioner did
not present them in his direct appeal or in a post-conviction proceeding; and that ground four
is defaulted because Petitioner did not pursue the claim in a post-conviction proceeding.
As stated before, 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, 322 F.3d at 1020-21; accord Baldwin, 541 U.S. at 29. "A claim has
been fairly presented when a petitioner has properly raised the same factual grounds and
legal theories in the state courts which he is attempting to raise in his federal habeas
petition." Wemark, 322 F.3d at 1021 (quoting Joubert, 75 F.3d 1232 at 1240. Claims that
have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022
(citing Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).
Missouri requires the raising of constitutional claims at the first available opportunity.
See In re J.M.N., 134 S.W.3d 58, 73 (Mo. Ct. App. 2004); In re T. E., 35 S.W.3d 497, 504
(Mo. Ct. App. 2001). Alleged trial court errors, including constitutional claims of trial court
error, such as the claims in grounds two and three, or of cognizable prosecutorial error, which
may be present in ground two, must be raised on direct appeal; for "[p]ost-conviction motions
cannot be used as a substitute for direct appeal or to obtain a second appellate review." State
v. Clark, 859 S.W.2d 782, 789 (Mo. Ct. App. 1993); accord State v. Twenter, 818 S.W.2d
628, 636 (Mo. 1991) (en banc) (a post-conviction proceeding "is not a substitute for direct
appeal, and matters that properly should have been raised by direct appeal may not be
-17-

litigated in a post-conviction proceeding"). "If the allegations of trial error are constitutional
violations, they are not cognizable [in a post-conviction proceeding] unless exceptional
circumstances are shown which justify not raising the constitutional grounds on direct
appeal." Clark, 859 S.W.2d at 789; accord Amrine v. State, 785 S.W.2d 531, 536 (Mo.
1990) (en banc); Allen v. State, 903 S.W.2d 246, 247 (Mo. Ct. App. 1995) (per curiam).
Therefore, if an alleged violation of the constitution through trial error is not raised on direct
appeal, the claim is defaulted absent exceptional circumstances justifying the failure to raise
the error on direct appeal, and, only if such circumstances are shown, may the matter then
be pursued in a post-conviction proceeding.
In Missouri, in addition to allowing pursuit of an allegedly unconstitutional trial error
that falls within the "exceptional circumstances" exception to raising such an error on direct
appeal, a post-conviction motion proceeding is the exclusive procedure for pursuing in state
court any ineffective assistance of counsel claim; a motion court's decision on such a motion
is subject to appeal; and successive post-conviction motions are not permitted. Mo. S. Ct.
Rule 29.15(a), 29.15(k); 29.15(l); Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006).
Importantly, any claim that should have been but was not presented in a post-conviction
motion or on appeal from a denial of a post-conviction motion is procedurally defaulted and
may not be considered in a federal habeas proceeding. See Interiano v. Dormire, 471 F.3d
854, 856 (8th Cir. 2006) (finding that claims not presented in an amended Rule 29.15 postconviction motion or appeal from the denial of that motion are procedurally defaulted).

-18-

Because Petitioner did not file a post-conviction motion, none of the claims in grounds
two through four were presented to the state courts through a post-conviction motion or postconviction appeal.
Under the circumstances, the claims set forth as grounds two through four of
Petitioner's federal habeas petition are procedurally defaulted because they were not raised
in Petitioner's direct appeal or in any post-conviction proceeding.
Absent a showing of either cause and prejudice or a miscarriage of justice, a federal
habeas court may not reach the merits of a federal constitutional claim procedurally defaulted
due to a petitioner's failure to follow applicable state rules in raising the claim in state court.
Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992); accord Skillicorn v. Luebbers, 475 F.3d
965, 976-77 (8th Cir. 2007) ("Unless a habeas petitioner shows cause and prejudice or that
he is actually innocent of the charges, a [federal habeas] court may not reach the merits of
procedurally defaulted claims in which the petitioner failed to follow applicable state
procedural rules in raising the claims"). "Cause for a procedural default exists where
'something external to the petitioner, something that cannot fairly be attributed to him[,] ..
. 'impeded [his] efforts to comply with the State's procedural rule.'" Maples v. Thomas, 132
S. Ct. 912, 922 (2012) (alterations in original) (quoting Coleman v. Thompson, 501 U.S. 722,
753 (1991)). There is no exhaustive catalog of the objective impediments, and the precise
contours of the cause requirement have not been clearly defined. Ivy v. Caspari, 173 F.3d
1136, 1140 (8th Cir. 1999).

-19-

Throughout his petition, Petitioner asserts that an attorney was appointed to represent
him in the state court proceedings and did not raise the defaulted issues. (See Pet'r Pet. at 8,
9, and 11 [Doc. 1 at 7, 8, and 10].) The Court will assume Petitioner asserts that his
attorney's failure to raise the issues before the state courts constitutes cause for his failure to
pursue the issues in the state court proceedings.
While the Court is not aware of applicable federal authority stating that conduct of a
trial attorney or a direct appeal attorney may constitute cause, a post-conviction attorney's
conduct may, under limited circumstances, constitute cause for a petitioner's failure to
present the state courts with a claim the petitioner pursues in a federal habeas proceeding.
See, e.g., Martinez v. Ryan, 132 S. Ct. 1309 (2012) (post-conviction counsel); Maples,
supra (post-conviction counsel). Here, however, Petitioner did not file a post-conviction
motion; so, no conduct of a post-conviction attorney may establish cause for Petitioner's
failure to pursue in post-conviction proceedings the claims in grounds two through four of
his habeas petition. Therefore, Petitioner's apparent effort to establish cause through his
attorney's conduct is unavailing.
Petitioner does not assert or demonstrate any other "cause" that would allow the Court
to consider the merits of his procedurally defaulted claims.
No cause having been established, the Court does not need to address the prejudice
element. Abdullah v. Groose, 75 F.3d 408, 413 (8th Cir. 1996) (en banc). Under the
circumstances, no cause and prejudice exists to allow consideration of the merits of
Petitioner's procedurally defaulted claims in grounds two through four.
-20-

To the extent a "miscarriage of justice" may allow a federal habeas court to address
the merits of a procedurally defaulted claim, Petitioner has not demonstrated the applicability
of that exception either. "Procedurally barring a claim that establishes actual innocence is
considered a fundamental miscarriage of justice." Cox v. Burger, 398 F.3d 1025, 1031 (8th
Cir. 2005). To establish actual innocence, Petitioner must provide new evidence and make
a "show[ing] that 'it is more likely than not that no reasonable juror would have convicted
him in light of th[at] new evidence.'" Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005)
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord House v. Bell, 547 U.S. 518,
536-39 (2006) (Schlup standard applies to determine whether defaulted claims in a first
federal habeas petition should be considered based on actual innocence). "'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).
Here, Petitioner has not shown or referred to any new evidence of his actual
innocence.

Therefore, Petitioner has not shown a miscarriage of justice supporting

consideration of the merits of any of his procedurally defaulted claims.
Under the circumstances, the Court will not further consider the merits of the
procedurally barred claims in grounds two through four. The Court will consider the merits

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of the claim in ground one, as construed, because it was presented to, and addressed on the
merits by, the Missouri Court of Appeals during Petitioner's direct appeal.5
Merits - Standard of Review (Ground One). In ground one, as construed by the
parties and Court, Petitioner claims the trial court violated his constitutional rights in denying
a continuance and admitting into evidence Jones's testimony and lab report, because
Petitioner did not receive the lab report until three days prior to trial. Respondent replies that
this claim lacks merit due to the state appellate court's correct and reasonable resolution of
the issue based on clearly established federal law.
The Missouri Court of Appeals found that, under the circumstances, the denial of the
continuance was proper in that there was no surprise, deceit, or bad faith in the State's failure
to provide Petitioner's counsel with Jones's lab report about the urinalysis more than three
days before trial. In particular, the appellate court noted that the State had advised
Petitioner's counsel about nine days before trial that a report would be coming, then disclosed
the preliminary test results about six days prior to trial, and faxed Petitioner's counsel a copy
of the final laboratory report on September 8, 2008, within hours of the State's receipt of that
report. Moreover, that court found, Petitioner's counsel spoke with Jones the day before trial
and was allowed to speak with him again prior to the start of trial the next day; and Petitioner

5

To the extent ground one presents a claim regarding the analysis of Petitioner's urine
sample that differs from the issue Petitioner presented in his direct appeal, Petitioner did not pursue
any such claim in state court, either in his direct appeal or through a post-conviction motion
proceeding. Therefore, any such claim is procedurally defaulted, falls within the discussion of the
procedural default of grounds two through four, and, for the same reasons, cannot be addressed on
its merits in this federal habeas proceeding.
-22-

knew the report was being prepared and "should have contemplated" the possibility of such
a report, because Petitioner had provided the urine sample and was on trial for driving while
intoxicated.
With respect to Petitioner's challenge to the admission of Jones's testimony and lab
report, which he characterized as the only scientific link demonstrating he was driving while
intoxicated, the state appellate court noted that, by state statutory provision, proof of
intoxication may be provided by someone who has observed a defendant's physical condition,
including "unsteadiness on the feet, . . . lack of body coordination and impaired motor
reflexes," and proof by a chemical test was not necessary. Here, that court found, there was
testimony from two qualified police officers who observed Petitioner on January 1, 2008, at
the time of and shortly after his arrest. One of those officers had observed Petitioner while
driving and after the traffic stop; had given Petitioner three field sobriety tests which
Petitioner did not pass; and had searched Petitioner's vehicle, finding syringes, a "glass
smoking device with burnt residue," a plastic bag with residue, a single burner plate, a digital
scale with powder residue, a pill bottle containing match box strikers, an orange powdered
substance, and a dark maroon powdered substance. The second officer, a drug recognition
expert, met with Petitioner at the Sheriff's Department upon Petitioner's arrest; repeated the
field sobriety tests and administered other tests, which showed that Petitioner was impaired;
took Petitioner's vital signs throughout the course of their meeting; and observed Petitioner's
physical condition, including severely constricted pupils, a tongue with a green film in the
center and heat bumps at the back, and open wounds on his arm, including what the officer
-23-

thought were needle marks. Upon noting that witness credibility is for the jury to resolve,
the Missouri Court of Appeals concluded that the two officers' testimony was sufficient to
find Petitioner guilty beyond a reasonable doubt of the driving while intoxicated offense, and
therefore Petitioner was not prejudiced by admission of Jones's testimony and lab report.
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 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, 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
-24-

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).
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." Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (quoting Harrington, 131 S. Ct. at 784, 786).
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, 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)).
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,
-25-

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)). Importantly, "a determination of a
factual issue made by a State court shall be presumed to be correct" unless rebutted by the
petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 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.
With respect to Petitioner's challenge to the denial of his request for a continuance,
"[t]he matter of continuance is traditionally within the discretion of the trial judge, and it is
not every denial of a request for more time that violates due process." Ungar v. Sarafite,
376 U.S. 575, 589 (1964); see also Morris v. Slappy, 461 U.S. 1, 11 (1983) (noting trial
courts have broad discretion on matters of continuances); Swindler v. Lockhart, 885 F.2d
1342, 1350 (8th Cir. 1989) (same). "Habeas relief for the trial court's decision to deny a
continuance is available only where the petitioner can show that the denial of the motion 'was
so egregious that it was fundamentally unfair.' Wade v. Armontrout, 798 F.2d 304, 307 (8th
Cir. 1986)." Whitmill v. Armontrout, 42 F.3d 1154, 1158 (8th Cir. 1994). "[O]nly an
unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request
-26-

for delay' may give rise to a violation of due process." Morris, 461 U.S. at 11-12 (quoting
Ungar, 376 U.S. at 589). "There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must be found in the
circumstances . . . , particularly in the reasons presented to the trial judge at the time the
request is denied." Ungar, 376 U.S. at 589.
These principles apply when a state court denies a criminal defendant a continuance
based on the government's belated disclosure of evidence. See, e.g., Middleton v. Roper,
498 F.3d 812, 815-17 (8th Cir. 2007) (addressing the government's disclosure of witnesses
shortly before trial; and upholding the denial of habeas relief due to the denial of a request
for continuance based, in part, on a determination the state court's finding that "defense
counsel already had information about the witnesses through previous hearings or police
reports" was not rebutted by the petitioner, and the petitioner had "identified no specific
instance in which additional time for preparation would have improved . . . the fairness of
the trial"). This habeas case is similar to Middleton. While the State belatedly disclosed the
results of the urinalysis and produced the lab report pertaining to that analysis in the ten days
prior to the trial date, Petitioner and his counsel knew Petitioner had provided a urine sample
at the time of his arrest approximately nine months earlier; knew or should have known it
was likely that the sample would be analyzed due to the driving-while-intoxicated charge;
received notice of the preliminary test results, as well as a copy of the final lab report, several
days prior to trial; had an opportunity to speak with the criminalist performing the test and
authoring the report prior to trial; and, at the time the continuance request was denied, the
-27-

trial court gave Petitioner the opportunity to speak with the criminalist again before he
testified. Under the circumstances, the state courts' decisions to deny and affirm the denial
of Petitioner's request for a continuance do not entitle Petitioner to habeas relief.
While the Missouri Court of Appeals did not cite to United States Supreme Court case
law in resolving this issue, it did consider relevant principles by noting that fundamental
unfairness or prejudice to the Petitioner's substantial rights is the main consideration and that
the trial court has broad discretion when considering the denial of a continuance request. The
state court also addressed the circumstances pertinent to the requested continuance by
considering the chronology of the State's pretrial disclosures regarding the test results and
Jones's lab report, as well as Petitioner's opportunity to speak with Jones, before concluding
that Petitioner had not demonstrated how further investigation of Jones or his lab report
would have aided in preparing Petitioner's defense.
The record supports the state appellate court's findings. Nothing in the record
discloses either trial court conduct that was "'so egregious that it was fundamentally unfair,'"
Whitmill, 42 F.3d at 1158 (quoting Wade, 798 F.2d at 307), or "an unreasoning and arbitrary
'insistence [by the trial court] upon expeditiousness in the face of a justifiable request for
delay,'" Morris, 461 U.S. at 11-12 (quoting Ungar, 376 U.S. at 589). The state appellate
court's decision upholding the denial of Petitioner's request for a continuance correctly and
reasonably applied clearly established federal law; and did not involve an unreasonable
application of the facts.

-28-

Petitioner also challenges the admission of Jones's testimony and lab report at trial,
after the denial of Petitioner's motion for a continuance. "'[F]ederal habeas corpus relief does
not lie for errors of state law.' Lewis v. Jeffers, 497 U.S. 764, 780 (1990)." Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (concluding that the admission of prior act evidence did
not violate the petitioner's right to due process). "Questions regarding admissibility of
evidence are matters of state law, and they are reviewed in federal habeas inquiries only to
determine whether an alleged error infringes upon a specific constitutional protection or is
so prejudicial as to be a denial of due process." Rousan v. Roper, 436 F.3d 951, 958 (8th
Cir. 2006) (internal quotation marks omitted) (quoting Logan v. Lockhart, 994 F.2d 1324,
1330 (8th Cir. 1993)). "A state court's evidentiary rulings can form the basis for federal
habeas relief under the due process clause only when they were so conspicuously prejudicial
or of such magnitude as to fatally infect the trial and deprive the [petitioner] of due process."
Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998) (internal quotation marks omitted)
(quoting Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1997)). The petitioner must show
that there is a reasonable probability that the challenged trial court error affected the outcome
of the proceeding, "that absent the alleged impropriety the verdict probably would have been
different." Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). The burden to establish
a state court's evidentiary ruling constituted a due process violation is "much greater than that
required on direct appeal and even greater than the showing of plain error." Mendoza v.
Leapley, 5 F.3d 341, 342 (8th Cir. 1993) (per curiam).

-29-

Here, Petitioner has failed to meet his burden of establishing a due process violation
in the trial court's admission of Jones's testimony and lab report. As the state appellate court
concluded, the testimony of the two officers, Malcolm and Kessler, was sufficient to prove
Petitioner guilty of driving while intoxicated on January 1, 2008. Those officers' testimony
regarding Petitioner's driving, physical condition, slowed responses to requests, and inability
satisfactorily to pass the administered tests, along with Malcolm's testimony regarding the
items found in the inside pocket of the jacket prior to Petitioner's arrest, on Petitioner upon
his arrest, and in the search of the truck Petitioner was driving, supports the jury's conclusion
that Petitioner was guilty of the driving-while-intoxicated offense, when considered in light
of Burgio's testimony regarding the analysis of the plant material found on Petitioner and the
powders found in the truck Petitioner was driving.
Petitioner has not established either that the admission of Jones's testimony and lab
report was "so conspicuously prejudicial or of such magnitude as to fatally infect the trial and
deprive [Petitioner] of due process," Bounds, 151 F.3d 1119, or that, absent that testimony
and evidence, he would not have been found guilty of driving while intoxicated. The record
supports the state court's factual findings regarding this issue. Although the state appellate
court did not expressly mention clearly established federal law at the time of that court's
decision, the resolution of Petitioner's direct appeal resulted in a decision that was not
contrary to and did not involve an unreasonable application of clearly established federal law.
Conclusion

-30-

After careful consideration, the Court concludes the petition should be denied.
Grounds two through four, as well as ground one, other than the claim in ground one that
Petitioner pursued on direct appeal, are procedurally defaulted. Petitioner has failed to
establish either cause and prejudice or a miscarriage of justice sufficient to avoid that
procedural default and to permit this Court's consideration of the merits of those claims. The
remaining claim in ground one, that the trial court violated his constitutional rights in
denying a continuance and admitting into evidence Jones's testimony and lab report because
Petitioner did not receive the lab report until three days prior to trial, is without merit.
Accordingly,
IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is 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 31st day of March, 2014.

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