McDaniel v. Dormire

Filing 12

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the petition of Bryan McDaniel for a writ of habeas corpus relief is DENIED . IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/30/2014. (NEB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRYAN MCDANIEL,
Petitioner,
v.
DAVE DORMIRE,
Respondent.

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Case No. 4:11CV00793 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner Bryan
McDaniel for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. A jury convicted
Petitioner of first-degree trespass, Class B first-degree assault, armed criminal action, and
attempted burglary. He was sentenced to imprisonment of one year, ten years, three
years, and seven years, respectively, with all sentences to run concurrently except for the
three year sentence that was to run consecutively, for a total sentence of 13 years.
For federal habeas relief, Petitioner claims that there was insufficient evidence to
support the conviction of first-degree assault; that Petitioner was denied a fair trial due to
the prosecutor’s reference to Petitioner during closing argument as “tattoo man,” and the
prosecutor’s repeated references to Petitioner’s use of the word “nigger” during the
commission of the crimes; that defense counsel was ineffective for failing to object to
several racially-related comments by the prosecutor in closing argument, failing to object
to the prosecutor’s repeated use of the word “nigger,” failing to object to the prosecutor’s
characterization, in opening argument, of Petitioner’s crimes as hate crimes, and failing

to investigate the crime scene adequately; and that the state postconviction motion court
deprived Petitioner of due process by adopting the State’s proposed findings of fact and
conclusions of law verbatim and without giving Petitioner a chance to submit proposed
findings and conclusions.
Respondent argues that habeas relief should be denied because Petitioner’s claims
concerning the “tattoo man” comment and defense counsel’s failure to object to the
prosecutor’s characterization of the crimes as hate crimes were procedurally defaulted,
and in any event fail on the merits, and the state courts’ adjudication of the remaining
claims was factually and legally reasonable. For the reasons set forth below, habeas
relief shall be denied.
BACKGROUND
Information and Trial
In charging the offense of first-degree assault, the amended information stated, in
relevant part, that Petitioner, armed with a rifle that was loaded and ready to fire, “while
yelling nigger,” threatened to kill Adrian Hudson (who is African American). Before the
jury was brought into the courtroom, defense counsel asked that the word “nigger” be
stricken from the amended information as it was inflammatory. The trial court agreed,
noting that Petitioner was not charged with a hate crime, and ordered the word stricken.
During opening argument, the prosecutor stated, without objection by defense counsel,
that during commission of the crimes, Petitioner “said ‘I’m going to kill you nigger.’ He
didn’t say it once, he said it twice, he said it repeatedly while they heard. But our
evidence will show you that these were more than just hateful words of racism spewing
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from the mouth of a bigot.” (Resp. Ex. A at 122.) The prosecutor also said in opening
argument, “This isn’t Birmingham in the 1960s, this is St. Charles, Missouri,” to which
the trial court sustained Petitioner’s objection. Id. at 126-27.
The Missouri Court of Appeals summarized the evidence at trial, viewed in the
light most favorable to the verdict, as follows:
On September 20, 2005, [Petitioner] [who is white] rang the doorbell
of one of his apartment building neighbors, Adrian Hudson, who resided
there with his girlfriend, Cindy Green, their 10-month old baby, and
Cindy’s sister, Jazimine. Hudson opened the door, and [Petitioner], holding
out a handful of paper trash, complained that Jazimine had littered on or
near the complex. Hudson denied that the litter belonged to anyone in his
unit. The discussion escalated between the two, standing there in the
threshold of the apartment. Papers were thrown and kicked, Hudson’s shoe
came off, [Petitioner] hit Hudson in the face with it, and Hudson swiped at
[Petitioner] with a knife, cutting [Petitioner]’s hand. Hudson and Green
eventually managed to close and lock the door.
[Petitioner] disappeared briefly, returned with a fully-loaded semiautomatic assault rifle, cocked it with the safety off, his finger on the
trigger, and began yelling infinite variations on the theme, “I'm going to get
you, nigger! I'm going to kill you, nigger! Fuck you, nigger! You’re dead!”
[Petitioner] kicked on the door hard enough to shake the walls and pass
light through the doorframe. He punched the door hard enough to break his
own hand. Hudson and Green braced the door with a chair and called 911.
A neighbor [Joseph Twehous] likened [Petitioner]’s actions to that of a
SWAT team attempting to breach an entryway. That same neighbor also
called 911 and later testified, “I thought I was going to witness a murder.”
At some point [Petitioner] placed his weapon against a nearby
banister. He explained during cross-examination that he couldn’t hold the
gun and pound on the door at the same time. When the police arrived,
[Petitioner] was holding the rifle, pacing, and still shouting the
aforementioned obscenities.
(Resp. Ex. F.)

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This Court’s review of the summary confirms that it is fair and accurate, when
viewing the evidence in the light most favorable to the verdict. The Court adds to the
above that Twehous testified that he observed the initial confrontation when he was
sitting “just off” the patio of a neighbor’s apartment, that before Petitioner left to retrieve
the rifle, he (Twehous) observed that Petitioner “had about half his body into [Hudson’s]
apartment,” and that he then observed the rest of the incident through a window and
peephole in his neighbor’s apartment. Id. at 213-32.
The evidence also showed that the four police officers who had arrived at the
scene took Petitioner from the scene to the hospital for treatment of the knife wound that
required some stitches. In closing argument, the prosecutor referred to Petitioner as
“tattoo man” in arguing that Hudson’s version of events portraying Petitioner as the
aggressor was more credible than Petitioner’s story that Hudson provoked the violence:
Adrian did not provoke this. The defendant went to his door. Even
[Petitioner] says Adrian tried to break this off by closing the door. And
Adrian tried to cut this off by closing the door again. He didn’t get in.
When a door slams in your face, the conversation is over. Then he attacked
Adrian. They want you to believe that Adrian attacked him. You saw the
size of Adrian. You got tattoo man here . . .
(Resp. Ex. A at 343-44.) The record establishes that Petitioner had 30 tattoos. Defense
counsel’s objection was overruled.
Also during closing argument, the prosecutor stated, without objection by defense
counsel, that the case was about race, that Petitioner was a “narrow minded little bigot,”
that when bigotry is tolerated, “everyone is in danger,” and that the jury needed to send a
message that bigotry would not be tolerated in their community. The prosecutor also
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invoked the memory of Martin Luther King and stated that although it was “an
exaggeration to say that this was a 21st century attempted lynching,” Petitioner was filled
with hate and terrorized Hudson and his family. Id. at 350. The word “nigger” was
uttered approximately 50 times during the trial.
Direct Appeal
On direct appeal, Petitioner argued that the trial court erred in overruling his
motion for judgment of acquittal on the first-degree assault charge because there was
insufficient evidence that Petitioner took a substantial step toward attempting to kill or
cause serious physical injury to Hudson; erred in overruling Petitioner’s objection to the
prosecutor’s reference to Petitioner as “tattoo man” during closing argument; and erred in
failing to declare a mistrial sua sponte when the prosecutor made the above noted
racially-related comments and repeated Petitioner’s use of the term “nigger,” all of
which, according to Petitioner, improperly incited the jury’s emotions against Petitioner
and personalized the argument to the jury. (Resp. Ex. C.)
On March 25, 2008, the Missouri Court of Appeals affirmed Petitioner’s
conviction and sentence. The court concluded that the evidence was sufficient to support
the conviction for first-degree assault, as “[p]etitioner’s actions, accompanied by his
relentless and unambiguous threats, were sufficient to lead a reasonable trier of fact to
conclude that he was taking substantial steps and would have persisted, but for the police,
until he successfully entered the apartment and caused serious injury to its inhabitants.”

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(Resp. Ex. F at 3.) The court distinguished Verweire v. Moore, 211 S.W.3d 89 (Mo. banc
2006), upon which Petitioner relied, as in that case the defendant retreated on his own
without having attempted to shoot the pistol with which he threatened the victim.
The appellate court dismissed the claims regarding the prosecutor referring to
Petitioner as “tattoo man” and making racially-related comments during argument,
because Petitioner failed to preserve the points for appellate review either by not
objecting at trial (racially-related comments) or by not including the issue (“tattoo man”)
in Petitioner’s motion for a new trial. The appellate court believed that the claim that the
trial court should have declared a mistrial sua sponte due to the prosecutor referring to
Petitioner’s use of the word “nigger” was also procedurally defaulted, because Petitioner
only asked that the term be stricken from the information, and did not object at trial.
Reviewing this claim for plain error, the appellate court found none, as “[a]ny prejudice
Petitioner may have suffered from the admission of his own epithets at trial can be
attributed to the very probativeness of the challenged evidence. A defendant is not
entitled to exclude evidence merely because it damages his case.” Id. at 6.
State Postconviction Proceedings
In a motion for state postconviction relief, Petitioner claimed that defense counsel
was ineffective for, among other things, failing to (1) object to the prosecutor’s racerelated statements in closing argument; (2) preserve for appellate review the objection to
the prosecutor referring to Petitioner as “tattoo man,” (3) object to the prosecutor’s
repeated reference to Petitioner using the term “nigger” and failing to move for a mistrial
after repeated references to the word; (4) object to and preserve for appellate review the
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prosecutor’s attempts to portray the crimes as racially-motivated hate crimes; and (5)
investigate the crime scene adequately, as such an investigation would have provided
evidence that, among other things, Twehous would have been unable to observe the
events as he had described them, especially in September when the trees were full of
leaves, evidence which could have been used to impeach Twehous’s testimony. (Resp.
Ex. I at 4-26.)
An evidentiary hearing was held on the postconviction motion on August 27,
2009, at which an investigator testified that in December 2008, he went to the crime
scene, and that the investigator could not see inside the doorway of Hudson’s apartment
from the patio on which Twehous testified he was sitting and observed part of the
criminal activity. (Resp. Ex. H at 10.) The investigator admitted that he did not know
the substance of Twehous’s trial testimony.
Defense counsel testified by deposition in lieu of live testimony. When
questioned about his decision not to object to the race-related statements made by the
prosecutor during closing argument, defense counsel stated that he was not too concerned
about the statements because sentencing was going to be handled by the court, not the
jury, and that he did not believe the prosecutor was “making much headway with those
[arguments] anyway.” Defense counsel testified that, as a matter of trial strategy, he did
not want to object and call attention to the statements as that would only serve to
highlight them and “play into [the prosecutor’s] strategy.” (Resp. Ex. J at 7-9.)
Defense counsel testified that he went to the crime scene but did not recall whether
he stood where Twehous said he was during the commission of the crimes. Defense
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counsel stated that he did not include the “tattoo man” comment in Petitioner’s motion
for a new trial because he did not think it rose to the level of warranting a new trial.
Defense counsel testified that he did not object to the prosecutor’s use of the word
“nigger” as defense counsel did not believe there was any way to exclude the fact that
Petitioner had used the word during the crimes, and believed that use of the word by
others at trial prior to Petitioner testifying might have the strategic benefit of
desensitizing the word. Counsel stated that he objected to inclusion of the word in the
amended information because he did not want it in the jury instructions, and that was
different from not objecting to use of the word at trial. Id. at 10.
After the hearing, on that same day (August 27, 2009), the motion court issued an
order taking the matter under submission and granting counsel 60 days “to provide”
proposed findings of facts and conclusions of law. (Resp. Ex. at 32.) On October 2,
2009, before Petitioner submitted proposed findings and conclusions, the court issued its
decision. The motion court rejected Petitioner’s claim that defense counsel was
ineffective in failing to object to the race-related statements in the prosecutor’s closing
argument. The court found that “the racial nature of the case cannot be ignored,” that it
was Petitioner who “injected race into this case by his own action,” and that the
prosecutor’s challenged arguments were “valid inferences from the evidence.”
Moreover, according to the court, defense counsel presented valid strategic reasons for
not objecting. Id. at 34.
The motion court held that the objection at trial to the term “tattoo man” was
properly overruled, as the reference “was a reasonable inference” from the fact that
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Petitioner had 30 tattoos, and “at worst,” was “harmless hyperbole.” The motion court
concluded that it was “inconceivable” that the jury convicted Petitioner based on the
prosecutor’s use of the term, and the court agreed with defense counsel’s assessment of
the futility of raising this matter in a motion for a new trial. Id. at 35. In rejecting
Petitioner’s claim that counsel was ineffective in not objecting to the prosecutor’s use of
the word “nigger” in presenting the state’s case, the motion court held that use of the
word was relevant to show Petitioner’s intent to commit first-degree assault and was part
of the res gestae of the crime. The court noted that its decision at the start of trial to
remove the objectionable word from the amended indictment was not intended to indicate
the court’s willingness to exclude as evidence words said by Petitioner during
commission of the crimes.
Lastly, the motion court denied Petitioner’s claim that defense counsel was
ineffective in failing to determine, upon visiting the crime scene, that Twehous could not
have observed the crimes as he described them from his location. The court found that
Petitioner had failed to present credible evidence of this alleged impossibility, as the
investigator who had testified at the evidentiary hearing did not investigate the view
Twehous would have had from the grass next to the patio (as opposed to from the patio
itself), from the apartment window, or through the apartment peephole. Id. at 39-40.
The motion court’s “Findings of Fact, Conclusions of Law and Judgment” consists
of seven and a half typed pages, with two handwritten corrections initialed by the judge.
On October 26, 2009, Petitioner moved to vacate the motion court’s judgment so that the
court could consider Petitioner’s proposed findings and conclusions that he attached to
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the motion. On November 20, 2009, the motion court summarily denied the motion. Id.
at 75.
On appeal from the denial of postconviction relief, Petitioner reasserted his claims
of ineffective assistance of defense counsel and also asserted that the motion court denied
him due process in adopting the state’s findings of fact and conclusions of law verbatim
and denying Petitioner the opportunity to submit his own proposed findings and
conclusions. Petitioner asserted that the state’s proposed findings and conclusions were
submitted to the motion court without notice or service upon Petitioner. (Resp. Ex. K.)
In affirming the motion court, the state appellate court held that the motion court
did not err in finding that defense counsel acted within the bounds of reasonable trial
strategy in failing to object to the prosecutor’s race-related statements in closing
argument, as well as in not objecting to the prosecutor’s use of the racial slur at trial. The
appellate court held that by not presenting evidence at the evidentiary hearing to support
the claim that defense counsel was ineffective for not objecting to the prosecutor’s
statements in opening argument characterizing the crimes as hate crimes, Petitioner had
abandoned the claim for consideration on appeal. The appellate court found that
Petitioner’s investigator’s testimony lacked sufficient probative value to find that defense
counsel was ineffective in his investigation of the crime scene, because the investigator
had no knowledge of the evidence presented at trial as to where Twehous was when he
observed the altercation between Petitioner and Hudson. (Resp. Ex. N at 16-17.)
The court recognized the concern raised by Petitioner regarding the motion court
issuing its judgment before Petitioner submitted his proposed findings and conclusion.
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But the appellate court held that the motion court “did not violate any rule of law or
commit any error” in this regard. The appellate court then stated that there was nothing
in the record to support Petitioner’s assertion that the motion court adopted the State’s
proposed findings and conclusions as its own, and that even if there were such evidence,
such a practice was acceptable in Missouri as the record was void of evidence that the
motion court failed to thoughtfully and carefully consider any proposed findings and
conclusions filed with the court. Id. at 19-20.
DISCUSSION
Rather than consider Respondent’s procedural default argument with respect to
Petitioner’s claims concerning the “tattoo man” comment and defense counsel’s failure to
object to the prosecutor’s characterization of the crimes as hate crimes, the Court will
address these claims on the merits, along with Petitioner’s other claims. See, e.g., Nance
v. Norris, 392 F.3d 284, 291 (8th Cir. 2004) (stating that a court may choose to by-pass a
procedural default question and proceed to the merits) (citing Stephens v. Norris, 83 F.3d
223, 224 (8th Cir. 1996)).
Standard of Review
Where a claim has been adjudicated on the merits in state court, the
Antiterrorism and Effective death Penalty Act (“AEDPA”) provides that application for a
writ of habeas corpus cannot be granted unless the state court’s adjudication
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

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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
proceedings.
28 U.S.C. § 2254(d).
The “contrary to” clause is satisfied if a state court has arrived at a conclusion
opposite to that reached by the Supreme Court on a question of law or confronts facts that
are materially indistinguishable from a relevant Supreme Court precedent but arrives at
the opposite result. Strong v. Roper, 737 F.3d 506, 510 (8th Cir. 2013); Lockyer v.
Andrade, 538 U.S. 63, 73 (2003). A state court “unreasonably applies” clearly
established federal law when it “identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
“[A] determination of a factual issue made by a State court shall be presumed to
be correct.” 28 U.S.C. § 2254(e)(1). The petitioner “has the burden of rebutting this
presumption of correctness by clear and convincing evidence.” Id. § 2254(e)(1); see also
Grass v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014).
Sufficiency of the Evidence
Petitioner asserts that his due process rights were violated because there was
insufficient evidence from which the jury could have found that Petitioner took a
substantial step toward the completion of the offense of attempting to kill or cause serious
injury to someone, as required for a conviction of Class B first-degree assault under
Missouri law. Petitioner asserts that a review of the trial transcript indicates that he never
pointed the gun at Hudson nor did Hudson ever see Petitioner with the gun in his hand.
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Furthermore, Hudson testified that Petitioner never stated to him that he was
coming into his apartment but kept inviting him outside to fight.
The due process clause prohibits the conviction of an accused “except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he
is charged.” In re Winship, 397 U.S. 358, 364 (1970). In the § 2254 setting, the federal
court must consider “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see
also Evans v. Luebbers, 371 F.3d 438, 441 (8th Cir. 2004). The scope of habeas review
of such a claim is “extremely limited.” Skillicorn v. Luebbers, 475 F.3d 965, 977 (8th
Cir. 2007). This means that when “a reviewing court [is] ‘faced with a record of
historical facts that supports conflicting inferences [the reviewing court] must presume –
even if it does not affirmatively appear in the record – that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to that resolution.’” McDaniel
v. Brown, 558 U.S. 120, 133 (2010) (per curiam) (quoting Jackson, 443 U.S. at 326)).
This Court may grant habeas relief only if the Missouri Court of Appeals’ determination
that the evidence satisfied the sufficiency of evidence standard under Jackson was “‘both
incorrect and unreasonable.’” Garrison v. Burt, 637 F.3d 849, 855 (8th Cir. 2011); see
also Webb v. Steele, No. 4:10 CV 758 RWS; 2014 WL 684006, at *13 (E.D. Mo. Feb. 21,
2014).
A person commits first-degree assault under Missouri law when, among other
things, “he attempts to kill or knowingly causes or attempts to cause serious physical
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injury to another person.” Mo. Rev. Stat. §565.050.1. An attempt under state law is
“when, with the purpose of committing the offense, he does any act which is a substantial
step towards the commission of the offense.” Id. §564.011.1. A “substantial step” is
“conduct which is strongly corroborative of the firmness of the actor’s purpose to
complete the commission of the offense.” Id.
Here, the Missouri Court of Appeals reasonably determined that, viewing the
evidence in the light most favorable to the verdict, there was sufficient evidence to
support Petitioner’s conviction of first-degree assault. The evidence at trial
demonstrated that Petitioner left the scene of the initial encounter with Hudson, returned
with a loaded assault rifle, took the safety clip off, approached Hudson’s apartment, and
tried to break the door down. During that entire time, he was yelling that he was going to
kill Hudson. He stopped his rampage only after the four police officers arrived on the
scene. A rational trier of fact could have determined based on these facts that Petitioner
was breaking down the door in order to kill or cause serious physical injury to Hudson,
and that Petitioner’s actions were a substantial step towards that end. See In re J R N,
687 S.W.2d 655, 656 (Mo. Ct. App. 1985) (holding that evidence that the defendant
entered a hotel carrying a lug wrench and announced that he was there to assault the
manager but was stopped by a police officer was sufficient to show intent to cause
serious physical injury to support the conviction for Class B first-degree assault).
Prosecutor’s Tattoo and Race-related Comments
A prosecutor’s argument violates due process if it infects the trial with unfairness.
Darden v. Wainwright, 477 U.S. 168, 181 (1986). It “is not enough that the prosecutor’s
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remarks were undesirable or even universally condemned. ‘The relevant question is
whether the prosecutor’s comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.’” Id. at 181 (holding that although the
prosecutor’s closing argument was improper in commenting that the death penalty would
be the only guarantee against a future similar act and in referring to the defendant as an
“animal” who should not be out of his cell without a leash did not deprive the defendant
of a fair trial, as the comments did not manipulate the evidence or implicate specific
rights of the accused such as the right to remain silent, and in view of the heavy evidence
against the defendant) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647-48
(1974)). A prosecutor’s challenged statements must be viewed in the context of the
entire trial. Culkin v. Purkett, 45 F.3d 1229, 1235 (8th Cir. 1995). To be entitled to
relief, a habeas petitioner must show that there is a reasonable probability that absent the
alleged improper comments, the verdict probably would have been different. Roberts v.
Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1998).
Furthermore, under the AEDPA standard of review, Petitioner must show that the
state appellate court’s adjudication of this claim was an unreasonable application of
existing United States Supreme Court law. This combination of the due process standard
and the AEDPA standard of review, together with a federal habeas court’s “less reliable
vantage point for gauging the impact of closing argument on the overall fairness of the
trial,” results in an “exceptionally limited review” of this issue. Sublett v. Dormire, 217
F.3d 598, 600 (8th Cir. 2000) (citation omitted).

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Here the prosecutor’s reference to Petitioner as “tattoo man” was in the context of
an argument comparing the physical size of Hudson and Petitioner, an argument that was
based on facts known to the jury by physical observation. Although the label “tattoo
man” could be seen as prejudicial, it was not so prejudicial as to infect the trial with
unfairness. Similarly, the state appellate court reasonably determined that the prosecutor
referring to Petitioner as a “bigot” did not constitute a due process violation.
The prosecutor did highlight the racial nature of the crimes, and did play on the
jury’s emotions not to tolerate racism. As a general matter, statements in opening or
closing arguments that appeal to emotion, and “against a rational decision by the jury,”
are improper because they are “contrary to a fair proceeding.” Weaver v. Bowersox, 438
F.3d 832, 841 (8th Cir. 2006). But the question remains whether the jury verdict
reasonably could have been affected by the improper comments. Graves v. Ault, 614
F.3d 501, 507 (8th Cir. 2010). Here, considering the record as a whole, including the
cumulative effect of all the challenged comments and the strength of the properly
admitted evidence of Petitioner’s guilt, the Court concludes that the Missouri Supreme
Court’s resolution of this matter against Petitioner was not based on “an unreasonable
determination of the facts in light of the evidence” or an unreasonable application of
“clearly established Federal law.” 28 U.S.C. § 2254(d)(1) and (2). The Court remains
convinced that the verdict was based on the evidence and not on any improper factors.
Reference to Petitioner’s Use of the Word “Nigger”
As the state appellate court found, this objectionable word was mentioned at trial,
both by the prosecutor in opening argument, and repeatedly in the presentation of
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evidence, because Petitioner used that word during commission of the crimes. Cf. United
States v. Littrell, 439 F.3d 875, 882-83 (8th Cir. 2006) (holding that facially improper
comments were nonetheless proper because they made as part of a review of the
evidence, demonstrating that the comment did not amount to personal vouching by the
prosecutor). The jury was entitled to consider Petitioner’s threats, and the possible racial
animus behind the crimes, in evaluating his guilt.
Assistance of Defense Counsel
Petitioner claims that defense counsel was constitutionally ineffective in failing to
object to the race-related comments by the prosecutor in opening and closing argument,
and to use of the word “nigger” by the prosecutor and throughout the trial; and in failing
to investigate the crime scene adequately. To prevail on a claim of ineffective assistance
of counsel, a habeas petitioner must show that counsel’s performance was deficient, and
the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). As the Eighth Circuit recently explained:
The first prong requires a showing “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” The second prong requires a showing that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
White v. Dingle, 757 F.3d 750, 752-53 (8th Cir. 2014) (quoting Strickland, 466 U.S. at
687, 694). There is a “‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’” Tunstall v. Hopkins, 306 F.3d 601, 606
(8th Cir. 2002) (quoting Strickland, 466 U.S. at 689).

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Because both § 2254(d) and Strickland are deferential, “the question is not
whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington
v. Richter, 131 S. Ct. 770, 778 (2011); see also Williams v. Roper, 695 F.3d at 831-832.
In light of the above discussion about the prosecutor’s comments in opening and closing
argument, and the prevalence of the word “nigger” in the facts underlying Petitioner’s
trial, Petitioner’s claims that that defense counsel was ineffective for failing to object to
the comments and use of the word in question fail, because he cannot show that there is a
reasonable probability that had counsel objected, the result of the proceeding would have
been different. Furthermore, the state courts’ findings that the failure to object was
reasonable strategy on defense counsel’s part is supported by review of the trial transcript
and the transcript of the postconviction evidentiary hearing.
With respect to Petitioner’s claim that defense counsel was ineffective for failing
to discover, in his investigation of the crime scene, that Twehous could not have observed
the crimes as he described, the Court’s review of the trial transcript and the testimony of
Petitioner’s investigator at the postconviction hearing, leaves little doubt that the state
appellate court’s rejection of this claim was factually and legally reasonable. Although
this Court may take issue with aspects of the state courts’ reasoning – namely,
distinguishing between “just off” and “on” the patio, and relying on that fact that the
investigator did not know the substance of Twehous’s testimony – the Court agrees with
the state courts that Petitioner failed to present credible evidence of the alleged
impossibility of Twehous having observed the events in accordance with his testimony.
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This undermines the claim that defense counsel was ineffective in his investigation of the
crime scene.
PostConviction Court’s Procedure in Issuing its Judgment
Petitioner’s last claim for habeas relief is twofold: he challenges on due process
grounds both the motion court’s issuance of its judgment before the time had run for
Petitioner to submit proposed findings and conclusions and before he had done so, and as
well as the motion court’s alleged verbatim adoption of the state’s proposed findings and
conclusions. The Court concludes that neither aspect of the claim is cognizable in this
federal habeas action. See Kenley v. Bowersox, 228 F.3d 934, 938 (8th Cir. 2000)
(holding that habeas petitioner’s claim that he did not receive adequate notice and
opportunity to be heard before the state postconviction court adopted the state’s proposed
findings and conclusions verbatim was not cognizable in a federal habeas petition
because an attack on the procedure employed in the state postconviction proceeding does
not test the legality of a prisoner’s sentence).
Even if either aspect of claim were cognizable, the Court concludes that it would
fail on the merits. The Court agrees with Respondent that the second part of the claim
fails because Petitioner has not rebutted the presumption of correctness that applies to the
state appellate court’s factual determination that there was no evidence to support the
claim. The only evidence Petitioner relied on in state court, and relies on here, is the two
handwritten corrections in the motion court’s order noted above. This does not suffice.
Petitioner had ample opportunity to present a credible factual basis for this part of his
claim but failed to do so. Moreover, as the state appellate court noted, there is no internal
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evidence suggesting that the motion court may not have carefully considered the findings
and conclusions it issued. And there is no evidence that the motion court did not consider
Petitioner’s proposed findings and conclusions before denying Petitioner’s October 26,
2009 motion to vacate, 25 days after the motion was filed.
With respect to the first part of the claim, there was no due process violation
because Petitioner had a full evidentiary hearing on his postconviction claims. Although
his expectation, based on an order of the motion court, that he could file posthearing
proposed findings and conclusions, was thwarted by the motion court, this did not
deprive him of process to which he was due under the federal constitution. See id.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court=s
assessment of Petitioner=s claims for habeas relief debatable or wrong, for purposes of
issuing a Certificate of Appealability under 28 U.S.C. '2254(d)(2). See Miller-El v.
Cockrell, 123 S. Ct. 1029, 1040 (2003) (standard for issuing a Certificate of
Appealability) (quoting Slack v. Petitioner, 529 U.S. 473, 484 (2000)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Bryan McDaniel for a writ of
habeas corpus relief is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be
issued in this case.

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A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of September, 2014.

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