Clemons v. Steele
Filing
16
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1 ) is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Di smissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). Signed by Honorable Jean C. Hamilton on 11/28/11. (TRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD CLEMONS,
Petitioner,
vs.
TROY STEELE,
Respondent.
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Case No. 4:11CV379 JCH
MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Reginald Clemons’ pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for
disposition.
On April 2, 2007, a jury in the Circuit Court of St. Genevieve County, Missouri, found
Petitioner guilty of Committing Violence to a Department of Corrections Employee. (Resp. Ex. B,
P. 251). On June 19, 2007, Petitioner was sentenced to fifteen years imprisonment, with said
sentence to run consecutive to the sentence he was serving at the time. (Id.) Petitioner thereafter
appealed to the Missouri Court of Appeals, Eastern District. (Id., P. 253). The Missouri appellate
court affirmed the trial court’s judgment on May 13, 2008. (Resp. Ex. E).
On October 15, 2008, Petitioner filed a pro se Motion to Vacate, Set Aside or Correct the
Judgment or Sentence of the Circuit Court of St. Genevieve County. (Resp. Ex. F, PP. 5-14).
Counsel was appointed to represent Petitioner that same day (Id., P. 16), and on January 14, 2009,
an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence and Request for
Evidentiary Hearing was filed. (Id., PP. 18-46). The trial court denied the motion without an
evidentiary hearing. (Id., PP. 48-56). The Missouri Court of Appeals affirmed the denial of
Petitioner’s motion. (Resp. Ex. J).
Petitioner is currently incarcerated at the Potosi Correctional Center in Mineral Point,
Missouri. As the Court construes the instant petition for writ of habeas corpus, Petitioner raises the
following five claims for relief:
(1)
That the trial court erred in failing to provide a self-defense instruction to the
jury;
(2)
That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to request that a self-defense instruction be given to the jury;
(3)
That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to object to improper argument made during the prosecutor’s closing
statement;
(4)
That Petitioner was denied the right to confront his accuser; and
(5)
That Petitioner was denied his sixth amendment right to have the jury provide
a sentence recommendation.
(Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“§ 2254
Petition”), PP. 6-12).
DISCUSSION
A.
Procedural Default
1.
Ground 1
As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in failing
to provide a self-defense instruction to the jury. (§ 2254 Petition, PP. 6-7). The Court’s review of
the record reveals that Petitioner failed to pursue this claim on direct appeal from his conviction and
sentence.
A claim must be presented at each step of the judicial process in state court to avoid
procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.), citing Benson v. State, 611 S.W.2d
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538, 541 (Mo. App. 1980), cert. denied, 513 U.S. 983 (1994). Because Petitioner failed to raise this
claim on direct appeal, the claim is defaulted and Petitioner is procedurally barred from pursuing it
in this federal habeas proceeding. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Forest v.
Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert.
denied, 515 U.S. 1163 (1995). Therefore, this Court cannot reach the merits of the claim absent a
showing of cause and prejudice, or a demonstration “that failure to consider the claim[] will result
in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; Forest, 52 F.3d at 719; Keithley,
43 F.3d at 1217.
In his § 2254 petition, Petitioner apparently attempts to demonstrate cause for his failure to
raise the claim in state court, by claiming his appellate attorneys refused to raise the claim on direct
appeal. (§ 2254 Petition, P. 6). This Court need not decide whether Petitioner’s allegation is
sufficient to establish cause for the procedural default, however, because Petitioner fails to establish
he suffered the requisite prejudice as a result of the alleged error. See infra, section B(1). In
addition, because Petitioner makes no claim of actual innocence, he cannot satisfy the “fundamental
miscarriage of justice” exception to the required showing of cause and prejudice. Schlup v. Delo, 513
U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Washington v. Delo, 51 F.3d 756, 760-761 (8th
Cir.), cert. denied, 516 U.S. 876 (1995). Therefore, the claim raised in Ground 1 of the instant
petition is procedurally barred and must be denied.
2.
Grounds 4, 5
As stated above, in Ground 4 of his § 2254 petition Petitioner asserts he was denied the right
to confront his accuser. (§ 2254 Petition, PP. 9-10). In Ground 5, Petitioner asserts he was denied
his sixth amendment right to have the jury provide a sentence recommendation. (Id., PP. 11-12). A
review of the record reveals that Petitioner failed to pursue his fourth and fifth grounds for relief on
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direct appeal from his conviction and sentence, in his amended 29.15 motion, or on appeal from the
denial of that motion.
As noted above, a claim must be presented at each step of the judicial process in state court
to avoid procedural default. Jolly, 28 F.3d at 53. Because Petitioner failed to raise these claims on
either direct appeal or through the post-conviction motion process, the claims are defaulted and
Petitioner is procedurally barred from pursuing them in this federal habeas proceeding. Coleman, 501
U.S. at 731-32; Forest, 52 F.3d at 719; Keithley, 43 F.3d at 1217. See also Jolly, 28 F.3d at 53
(citation omitted) (“Failure to raise a claim on appeal from the denial of a post-conviction motion
erects a procedural bar to federal habeas review.”). Therefore, this Court cannot reach the merits of
the claims absent a showing of cause and prejudice, or a demonstration “that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; Forest, 52 F.3d
at 719; Keithley, 43 F.3d at 1217. Petitioner has not shown cause for his failure to raise the claims
in state court.1 In addition, because Petitioner makes no claim of actual innocence, he cannot satisfy
the “fundamental miscarriage of justice” exception to the required showing of cause and prejudice.
Schlup, 513 U.S. 298; Washington, 51 F.3d at 760-761. Therefore, the claims raised in Grounds 4
and 5 of the instant petition are procedurally barred and must be denied.
B.
Claims Addressed on the Merits
1
Petitioner attempts to establish cause for his procedural default, by asserting his post-conviction
appellate counsel refused to pursue the issues in his Rule 29.15 motion. (See § 2254 Petition, pp.
9, 12). The Court notes there is no constitutional right to effective assistance of post-conviction
counsel. Jolly, 28 F.3d at 54, citing Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir. 1992).
Further, under Eighth Circuit law, “it is well-established that any alleged ineffective assistance of
post-conviction counsel in failing to raise a claim is insufficient as a matter of law to serve as
cause for procedural default.” Battle v. Dormire, 2007 WL 803624 at *4 (E.D. Mo. Mar. 13,
2007), citing Clay v. Bowersox, 367 F.3d 993, 1005-1006 (8th Cir. 2004). Thus, to the extent
Petitioner asserts the error of his post-conviction attorney constitutes cause to excuse his
procedural default, his argument fails. Battle v. Dormire, 2007 WL 803624 at *4.
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1.
Ground 2
As stated above, in Ground 2 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to request that a self-defense instruction be given to
the jury. (§ 2254 Petition, PP. 6-7). Petitioner raised this claim in his 29.15 motion for postconviction relief, and the court denied the claim as follows:
5.
a.
To prevail on a motion for post-conviction relief on a claim of
ineffective assistance of counsel, movant2 must prove his allegation by
a preponderance of the evidence, and must show 1) that his attorney
failed to exercise the customary skill and diligence that a reasonably
competent attorney would perform under similar circumstances, and
2) that he was thereby prejudiced. Strickland v. Washington, 466
U.S. 668, 687-689 (1984), Sanders v. State, 738 S.W.2d 856, 857
(Mo. banc 1987). Counsel’s performance will not be deemed
ineffective unless a Movant satisfies both elements of the Strickland
test. Helmig v. State, 42 S.W.3d 658, 667 (Mo. App. 2001) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). On a claim of
ineffective assistance of counsel, there is a presumption that any
challenged action was sound trial strategy and that counsel rendered
adequate assistance and made all significant decisions in the exercise
of professional judgment. Kluck v. State, 30 S.W.3d 872 (Mo. App.
2000)....
6.
Secondly, Movant claims that trial counsel provided ineffective assistance of
counsel when he failed to submit a self-defense instruction for consideration
by the jury. Movant claims that had trial counsel submitted a self-defense
instruction, the trial court would have given it and there is a reasonable
probability that the outcome of the trial would have been different.
a.
b.
2
This is a claim of instructional error disguised as a claim of ineffective
assistance of counsel. “Claims of instructional error are matters for
direct appeal and are not cognizable on motion for post conviction
relief.” Morrow v. State, 21 S.W.3d 819 (Mo banc 2000). This
argument is not proper in a post conviction motion.
Movant also cites MAI 306.06, the definition of self-defense, stating
that “a person can lawfully use force to protect himself against an
unlawful attack.” MAI 306.06. Mr. Clemons was an inmate who
was charged with violence to an employee of the Department of
Petitioner is referred to as “Movant” by the 29.15 motion and appellate courts.
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Corrections in violation of Missouri Revised Statutes Section
217.385. Section 217.405 describes defender abuse and states “no
employee of the department [of corrections] shall use any physical
force on an offender except that the employee shall have the right to
use such physical force as is necessary to...suppress an individual or
group revolt or insurrection, enforce discipline or to secure the
offender.” Mo.Rev.Stat. § 217.405.3. In this case, the officer
attempted to use force to transfer the Movant to another location and
to secure the offender. At no point in time did the officer’s actions
elevate to the level of an unlawful attack or was evidence presented
justifying the use of a self-defense instruction.
c.
In Wilson v. State, 177 S.W.3d 852, 854-855 (Mo. App. E.D. 2005)
the Eastern District explained the test for using self-defense as
follows:
d.
The use of force in self-defense is justified if a defendant can show (1)
an absence of aggression on his part; (2) reasonable grounds for him
to believe he was faced with immediate danger of serious bodily
injury; (3) he used only the force reasonably necessary; and (4) he did
everything in his power to avoid the danger and retreated if possible.
State v. Habermann, 93 S.W.3d 835, 837 (Mo. App. E.D. 2002).
e.
In his Amended Motion Movant claims he believed he was in
immediate danger of serious physical injury or death and he was
outnumbered four-to-one and because he did not want to go to the
hole and he didn’t want to be restrained (Tr. 149). Movant did not
want to be restrained by the correctional officers and he was the initial
aggressor and failed to avoid the danger. The Movant could have
complied with the lawful request of the corrections officers and
avoided the situation, but he failed to do so and is not entitled to a
claim of self-defense. It is not ineffective assistance of counsel to fail
to request an instruction that is not warranted by the evidence.
Williams v. State, 92 S.W.3d 348 (Mo. App. S.D. 2003).
f.
Movant also claims twice in his amended motion that he did not
“intentionally” hit any of the officers. He stated that he didn’t want to
go to the hole, and that he struggled with the officers, but that he did
not intentionally hit Officer Hahn or any of the officers (Tr. 149-151).
Movant’s argument that he was entitled to a self-defense instruction
is without merit, because Movant stated that his actions were
unintentional thus not self-defense. “As a general rule a defendant is
not entitled to an instruction on self-defense if defendant claims
accident. This is because self-defense constitutes an intentional but
justified [act], whereas accident connotes an unintentional [act]. Self
defense and accident are therefore inconsistent.” State v. Avery, 120
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S.W.3d 196, 201 (Mo banc 2003). Thus, if the Movant took the
position at trial that the assault was unintentional or accidental, as did
Movant here, he may not also submit self-defense. Id.
g.
Since Movant was not entitled to a self-defense instruction based on
the evidence, his claim of ineffective assistance of counsel for failing
to request an instruction on self-defense is without merit. Point
denied.
(Resp. Ex. F, PP. 49, 52-55). Petitioner advanced the claim on appeal from the denial of his 29.15
motion, and the Missouri Court of Appeals denied the claim as follows:
[O]n appeal, Movant claims that trial counsel was ineffective for
failing to submit a self-defense instruction to the jury We disagree.
The motion court dismissed this point as “a claim of instructional error
disguised as a claim of ineffective assistance of counsel.” It cited Morrow v.
State, 21 S.W.3d 819, 829 (Mo. banc 2000) for the proposition that claims
of instructional error are matters for direct appeal only, and therefore not
cognizable in a post-conviction relief proceeding. We agree with the motion
court’s finding. See id.; State v. Brooks, 960 S.W.2d 479, 500 (Mo. banc
1997); Manwarren v. State, 223 S.W.3d 899, 903 (Mo. App. S.D. 2007)
(stating that “instructional errors are not cognizable in a proceeding for postconviction relief unless such errors rise to the level of a constitutional error
substantially depriving a defendant of the right to a fair trial”); Purvis v. State,
215 S.W.3d 745, 748 (Mo. App. S.D. 2007) (stating that instructional error
generally is not cognizable in a Rule 29.15 proceeding, and that Rule 29.15
is not a substitute for a direct appeal).
Certain post-conviction cases, while recognizing the foregoing
principle, have nonetheless proceeded to evaluate claims of instructional error.
E.g. Morrow, 21 S.W.3d at 829; Manwarren, 223 S.W.3d at 903. We
therefore note that the facts of Movant’s case did not merit a self-defense
instruction. A self-defense instruction requires evidence, among other things,
that the defendant: (1) did not provoke the attack, nor was he the aggressor;
and (2) reasonably believed that he was faced with the necessity of defending
himself from bodily harm. State v. Hiltibidal, 292 S.W.3d 488, 493 (Mo.
App. W.D. 2009).
The motion court found that Movant was the initial aggressor and that
the officers’ actions did not elevate to the level of an unlawful attack.
Movant’s own testimony supports the motion court’s findings. According to
Movant, the “guards started grabbing on [him]” when Captain Mayberry
ordered them to cuff Movant for creating a disturbance. Such testimony does
not support a claim that Movant reasonably believed he was faced with the
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necessity of defending himself from bodily harm. Furthermore, existing case
law suggests that “self-help or forcible resistance” does not constitute a
defense to the charge of felony violence against a corrections office. State v.
Jackson, 500 S.W.2d 306, 309 (Mo. App. W.D. 1973).
“Just as counsel cannot be faulted for making a non-meritorious
objection, (citation omitted), Movant’s trial attorneys cannot be faulted for
failing to request an instruction that had no evidentiary support.” Salazar v.
State, 66 S.W.3d 755, 761 (Mo. App. S.D. 2001) (holding that movant’s
attorneys were not ineffective for failing to request a self-defense instruction
when the record contained no evidentiary support). Movant’s point of error
is refuted by the record, and therefore the motion court did not clearly err in
denying Movant’s point without an evidentiary hearing.
(Resp. Ex. J, pp. 5-7).
With regard to federal court review of state court conclusions, 28 U.S.C. § 2254 states in
pertinent part as follows:
(d)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
The governing federal law for ineffective assistance of counsel claims is Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, an attorney’s
performance is ineffective only if the performance was “deficient,” and the deficient performance was
“prejudicial.” Strickland, 466 U.S. at 687. Further, counsel is “strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. This presumption is overcome only if Petitioner proves that “in light of all
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the circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.” Id.
Even if Petitioner is able to show that counsel’s representation was “deficient,” he is not
entitled to relief unless he can show that counsel’s deficiency resulted in sufficient prejudice. Id. at
694. To do so, Petitioner must demonstrate that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Upon consideration, this Court finds the Missouri court’s ruling is entitled to deference.
Specifically, the Court notes Petitioner testified at trial that at no time did he intend to hit any
correctional officer. (Resp. Ex. A, PP. 149-151). Under these circumstances, the Missouri court’s
finding that Petitioner was not entitled to a self-defense instruction for his unintentional actions did
not represent an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding. Furthermore, the Missouri court’s holding that counsel was not ineffective for
failing to request a self-defense instruction when the record contained no evidentiary support for such
an instruction did not result in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law. See Jackson v. Steele, 2009 WL 350633 at *18 (E.D.
Mo. Feb. 10, 2009), citing Fields v. United States, 201 F.3d 1025, 1028 (8th Cir. 2000). Ground 2
is denied.
2.
Ground 3
Petitioner’s third ground for relief is also an ineffective assistance of counsel claim. Petitioner
asserts that trial counsel failed to object to improper argument made by the prosecution during closing
statements. (§ 2254 Petition, PP. 7-9). Petitioner raised this claim in his Amended 29.15 motion,
and the court denied the claim as follows:
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5.
First, Movant claims ineffective assistance of counsel in that his attorney failed
to object to prosecutor’s closing argument based on future dangerousness.
Movant claims that but for trial counsel’s failure to object, there is a
reasonable probability that the outcome of the trial would have been
different....
b.
Objections during closing argument are considered a function of trial
strategy. Counsel will be deemed ineffective for failing to object to
closing argument only if the argument prejudiced defendant and
resulted in substantial deprivation of the defendant’s right to a fair
trial. The allegedly improper argument must be considered in the
context of the trial as a whole. Aaron v. State, 81 S.W.3d 682 (Mo.
App. 2002). The fact that an error by counsel might have had some
conceivable effect on the outcome is not sufficient to satisfy the
prejudice prong test applied to claims of ineffective assistance of
counsel. Rather, movant seeking postconviction relief must show
there is a reasonable probability that, absent the alleged error, the fact
finder would have had a reasonable doubt respecting guilt. Vogel v.
State, 31 S.W.3d 130 (Mo. App. 2000). Objections to isolated
statements in argument may highlight comment to jury and not every
failure to object constitutes ineffectiveness. Reynolds v. State, 87
S.W.3d 381 (Mo. App. 2002).
c.
Movant claims that trial counsel failed to object when the prosecutor
argued to the jury:
d.
I am going to ask you to follow your oath today and that you follow
the letter of the law and keep the corrections officers safe when they
go to work, and let the prisoners know that there is consequences for
their actions. (Tr. 165).
e.
Movant claims that the prosecutor’s closing argument suggested to
the jury that they should convict Mr. Clemons to keep him, as a
prisoner, from committing another such crime and thus is an argument
based on the Movant’s future dangerousness. The prosecutor never
specifically referred to the Movant and instead made a general appeal
to the jury to keep “corrections officers” safe and to let “prisoners”
know that there are consequences to their actions. Movant has failed
to cite argument by the prosecutor suggesting that they should convict
Mr. Clemons to keep “him”, as a prisoner, from committing another
crime.
f.
Arguments on deterrence are permissible so long as they concentrate
on general deterrence of crime and not deterrence of the defendant.
State v. Sandles, 740 S.W.2d 169 (Mo banc 1987). Here, the
prosecutor concentrated on the safety of corrections officers in
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general and deterring prisoners from committing future crime. The
prosecutor never specifically argued for the deterrence of Mr.
Clemons. The prosecuting attorney may argue for strict law
enforcement. State v. Kennedy, 107 S.W.3d 306 (Mo. App. 2003).
g.
Movant cites State v. Baller, 949 S.W.2d 269, 272 (Mo. App. 1997),
stating that even if assumed that the prosecutor’s comment was
improper, no plain error exists. In Baller, given the other evidence
against defendant that was presented at trial, it cannot be established
that the alleged improper comment had a decisive effect on the jury’s
determination. Id. In this case, the Movant has failed to establish
facts that the prosecutor’s alleged improper argument had a decisive
effect on the jury’s determination, and given the weight of the
evidence against the Movant it cannot be established that an objection,
even if sustained, would have changed the verdict.
h.
Movant’s amended motion repeatedly states that it was for the jury to
decide whether Mr. Clemons was guilty of this crime and not some
past or future crime. Mr. Clemons was convicted of this crime and
Movant has failed to cite any specific statements made by the
prosecutor arguing for conviction based on the Movant’s past or
future crimes. Movant cites State v. Joles, 755 S.W.2d 622, 624 (Mo.
App. E.D. 1988), where the prosecutor argued that the defendant
was “going to do the same thing again, unless he was convicted and
incarcerated.” This statement was different because the prosecutor
referred specifically to the defendant and future crimes he might
commit. In the case at bar, the prosecutor never specifically
mentioned the defendant but only prisoners in general which is
allowed and supported by case law cited above. Also, even with the
improper future dangerousness statement the court in Joles held that
the error did not have a decisive effect on the jury and affirmed the
conviction. Id. at 624.
i.
Assuming the evidence in a light most favorable to the Movant, he has
failed to cite prosecutorial misconduct that would warrant an
objection. Even if there was prosecutorial misconduct during closing
argument, the decision of whether or not to object is trial strategy and
not grounds for granting a new trial.
j.
As such, Movant has failed to show that he was prejudiced by the
Prosecutor’s statement during closing argument. Point denied.
(Resp. Exh. F, PP. 49-52). Petitioner advanced the claim on appeal from the denial of his 29.15
motion, and the Missouri Court of Appeals denied the claim as follows:
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Movant argues that trial counsel was ineffective for failing to object
to a portion of the prosecutor’s closing argument. We disagree.
The prosecutor made the following remarks to the jury during the
State’s closing argument:
I am going to ask you to follow your oath today and that you
follow the letter of the law and keep the corrections officers
safe when they go to work, and let the prisoners know that
there [are] consequences for their actions.
Movant claims that, with this comment, the prosecutor improperly argued his
future dangerousness, and that trial counsel was ineffective for failing to
object. He states that, but for counsel’s failure to object, he would not have
been found guilty.
“It is not proper for a prosecutor to speculate as to future possible acts
or conduct of the defendant.” State v. Reynolds, 997 S.W.2d 528, 532 (Mo.
App. S.D. 1999) (stating that a prosecutor may not speculate about a
defendant’s propensity to commit future criminal acts) (emphasis in original).
A prosecutor may not “personalize his argument to the jury by attempting to
engender fear of personal safety in the juror’s minds if the defendant was
acquitted.” State v. Burton, 219 S.W.3d 778, 781 (Mo. App. E.D. 2007).
Similarly, a prosecutor cannot argue “the necessity of deterring [the
defendant], not as an example to others, but to prevent the defendant on trial
from committing further crimes.” State v. Raspberry, 452 S.W.2d 169, 172
(Mo. 1970).
While it remains impermissible to comment on a defendant’s future
dangerousness, “a prosecutor may comment on the prevalence of crime in the
community, the necessity of law enforcement to deter crime, and the evils that
may befall society if a jury fails its duty.” Burton, 219 S.W.3d at 781 (quoting
State v. Beal, 840 S.W.2d 881, 882 (Mo. App. S.D. 1992)). See also Forrest
v. State, 290 S.W.3d 704, 717 (Mo. banc 2009). “The law in Missouri has
long permitted the State to argue to the jury that the protection of the public
rests with them.” State v. Kee, 956 S.W.2d 298, 304 (Mo. App. W.D. 1997).
We agree with the motion court that the prosecutor’s argument was
proper. The argument did not reference Movant’s future dangerousness, nor
did it implant in the jurors’ minds “the fear that the [movant’s] acquittal
[would] endanger their own personal safety or that of one of their family
members.” See State v. Plummer, 860 S.W.2d 340, 350 (Mo. App. E.D.
1993). The prosecutor never even referenced Movant; he merely asked the
jury to follow their oath, to keep correctional officers safe, and to let prisoners
know there are repercussions for their actions. As explained, such
exhortations are within the realm of permissible argument. We will not deem
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trial counsel ineffective for failing to make an unmeritorious objection.
Forrest, 290 S.W.3d at 717. Because Movant’s claim was refuted by the
record, the motion court did not clearly err in denying his motion for postconviction relief without an evidentiary hearing. Id.
(Resp. Ex. J, pp. 4-5).
As stated above, federal courts review state court conclusions under 28 U.S.C. § 2254. That
section states in pertinent part:
(d)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
Upon consideration, this Court finds the ruling of the Missouri courts did not result in a
decision that was contrary to, or involved an unreasonable application of, clearly established federal
law. See, e.g., Cole v. Roper, 579 F.Supp.2d 1246, 1255 (E.D. Mo. 2008) (quoting Darden v.
Wainwright, 477 U.S. 168, 181 (1986)) (habeas relief only appropriate “if a prosecutor’s improper
closing argument ‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’”). In this case, the prosecutor did not even refer to Petitioner in the challenged section
of his argument; rather, it seems clear that he merely exhorted the jury to do their sworn duty. Thus,
because the portion of the prosecutor’s closing argument challenged by Petitioner was not improper,
the failure of Petitioner’s counsel to object thereto did not constitute ineffective assistance of counsel.
See Kerns v. Bowersox, 2010 WL 1049841 at *13 (E.D. Mo. Mar. 18, 2010), citing Grubbs v. Delo,
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948 F.2d 1459, 1466-56 (8th Cir. 1991); Thompson v. Jones, 870 F.2d 432, 435 (8th Cir. 1988).
Ground 3 is denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are
DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and
Order.
IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing
of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).
Dated this 28th day of November, 2011.
/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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