Pearson v. Steele

Filing 17

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Chris Koster, the Attorney General of the State of Missouri, is ADDED as a Respondent. IT IS FURTHER ORDERED that the Clerk of the Court shall file and maintain UNDER SEAL the Legal File (Resp'ts Ex. A [Doc. 9] from the underlying state criminal case. IT IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. Section 2254 is DISMISSED. IT IS FINALLY ORDERED that no certificate of appealability shall issue. 28 U.S.C. Section 2253. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on September 12, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTOINE D. PEARSON,
Petitioner,
v.
TROY STEELE and CHRIS
KOSTER,1
Respondents.

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No. 4:11cv1037 TCM

MEMORANDUM AND ORDER
This matter is before the Court for review and final disposition of a petition for writ
of habeas corpus filed by Antoine D. Pearson ("Petitioner") pursuant to 28 U.S.C. § 2254 to
challenge a 2008 judgment following a jury trial.2 Respondents filed a response [Doc. 6] to
the petition, including materials from the underlying state court proceedings [Docs. 9, 14-1,
and 16-1].3

1

Petitioner is serving consecutive terms of imprisonment as a result of the judgment he is
challenging in this habeas proceeding. Because Petitioner is challenging a sentence he will serve
in the future, the Court will add the Attorney General for the State of Missouri, Chris Koster, as a
respondent in this case. See Rule 2(b), Rules Governing Section 2254 Cases in the United States
District Courts.
2

This matter is before the undersigned United States Magistrate Judge on consent of the
parties. 28 U.S.C. § 636(c).
3

Some of the state court materials identify the minor victim. The Clerk will be directed to
place and maintain the legal file, Resp'ts Ex. A [Doc. 9], under seal. The trial transcript, Resp'ts Ex.
G [Doc. 14] and the transcript of the evidentiary hearing on the post-conviction motion, Resp'ts Ex.
H [Doc. 16-1], have already been placed under seal.

After careful consideration, the Court will deny the petition upon concluding that
Petitioner is not entitled to relief because ground two is procedurally defaulted and Petitioner
failed to demonstrate either cause and prejudice or actual innocence so as to allow this Court
to consider the merits of that procedurally defaulted claim; and because the other three
grounds for relief lack merit.
Background
Petitioner was charged with one count of first-degree statutory sodomy, in violation
of Mo. Rev. Stat. § 566.062 (Count I), one count of attempt to commit statutory rape in the
first degree, in violation of Mo. Rev. Stat. § 566.032 (Count II), and one count of attempt to
commit statutory sodomy in the first degree, in violation of Mo. Rev. Stat. § 566.062.
(Indictment, Legal File, Resp'ts Ex. A, at 5-6 [Doc. 9].) The charges were based on
allegations that, between October 15, 2006 and December 31, 2006, Petitioner had deviate
sexual intercourse, attempted to rape, and attempted to sodomize a girl, P.P. ("Victim"), who
was less than twelve years old at the time. Id.
The trial court held a pre-trial hearing after the State provided notice of its intent to
use at trial, under Mo. Rev. Stat. § 491.075, statements the minor Victim had made to others,
and Petitioner had filed motions challenging that statute and requesting suppression of
Petitioner's statements to the police. (See Hr'g Tr., Resp'ts Ex. G, at 5-118 [Doc. 14-1 at 230]; Mots. at Legal File, Resp'ts Ex. A, at 7-15 [Doc. 9].) The trial court subsequently denied
Petitioner's motion to suppress, and found the relevant statements made by Victim to four
others (Lisa Edwards, Luzette Wood, Kelly Patten, and Officer Robert Connell) were reliable
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and admissible. (Orders, dated Dec. 13, 2007, Legal File, Resp'ts Ex. A, at 16-18 [Doc. 9].)
Prior to trial, Petitioner again sought the suppression of Petitioner's statements to the
police, including a videotaped statement, based in part on his characterization of the
videotaped statement as constituting "extremely inflammatory hearsay." (Trial Tr., Resp'ts
Ex. G, at 126-30 [Doc. 14-1 at 32-33].) The trial court noted that this request was a
suggestion "that [the statements] should be excluded in limine," reiterated its denial of
Petitioner's motion to suppress, and acknowledged Petitioner's specific objections could be
considered once the State determined if it was going to introduce any statement and, if so,
to what extent. (Id. at 128, 130 [Doc. 14-1 at 33].)
During the trial in December 2007, and outside the presence of the jury, Petitioner
asked the court not to allow his statements into evidence, either in video form or through
police officer testimony, urging that Petitioner "has the right not to be tried for . . . prior bad
acts, whether charged or uncharged[;] . . .these statements do not show any relation to the
charge at hand"; and, as the State pointed out, Petitioner's statements do not include
"confessions or admissions." (Id. at 335-37 [Doc. 14-1 at 86]; see also id. at 340-42 [Doc.
14-1 at 87].) In response, the State acknowledged that, in his statements, Petitioner "does not
confess to committing the crimes here involved" but reports that he engaged in sexual
conduct of a "nearly identical" nature in the presence of and near Victim, during the "same
time frame." (Id. at 338-39 [Doc. 14-1 at 86-87].) The trial court concluded the statements
constituted admissions against interest, found that the recent state case cited by Petitioner
was not on point, characterized the information in the statements as describing circumstances
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surrounding the crime, and denied Petitioner's motion to exclude the statements Petitioner
made in a videotaped recording or to police officers at the time of his arrest. (Id. at 340-41
[Doc. 14-1 at 87].)
Later during trial and outside the presence of the jury, Petitioner objected to various
aspects of the video recording of Petitioner's statement to the police that the prosecutor
advised he was planning to play for the jury. (Id. at 416-35 [Doc. 14-1 at 106-11].) The trial
court sustained Petitioner's objections to, and required the deletion of, any references to
Petitioner's prior juvenile court history and to any past sexual abuse he had suffered; required
the prosecutor to advise the jury that Victim did not have any sexually transmitted disease;
overruled Petitioner's hearsay objections, as well as his objections that the statements were
coerced; and disallowed the playing of any other portion of the video recording of Petitioner's
statement until after the parties and trial court addressed any other objections to it that
Petitioner might have. (Id. at 419, 423-24, 426, 428, 429, 431-33 [Doc. 14-1 at 107-10].)
Before the State sought to admit the videotaped recording of Petitioner's statement to
the police and before the State questioned a police officer who had interviewed Petitioner
about Petitioner's statement, Petitioner reiterated his objection to the introduction of the
statements he made during police interrogation. (Id. at 489-90 [Doc. 14-1 at 124].)
Petitioner argued the introduction of such evidence violated Petitioner's constitutional rights
to due process, to counsel, and not to incriminate himself; and contended any statement was
not an "admission or a confession to the charges at hand" and was offered only to show
Petitioner has a propensity to commit the charged offenses. (Id. at 489 [Doc. 14-1 at 124].)
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The trial court overruled that objection and admitted the videotaped recording of Petitioner's
statement to the police, as well as the police officer's testimony regarding the interview of
Petitioner. (Id. at 489-90 [Doc. 14-1 at 124].)
After the testimony of one of the police officers who had interviewed Petitioner and
out of the presence of the jury, Petitioner asked the trial court to strike the officer's testimony
because it related statements that were hearsay, were not reliable, were "extremely
prejudicial[, were] more prejudicial than probative, and were inflammatory." (Id. at 565-66
[Doc. 14-1 at 144].) The trial court denied that motion. (Id. at 566 [Doc. 14-1 at 144].)
The State presented the testimony of six witnesses whose testimony focused on
matters pertaining to the charged offenses (id. at 299-568 [Doc. 14-1 at 77-621]); introduced
various exhibits, including three drawings of a male body and a female body, which were
used during Wood's interview of Victim (id. at 408 [Doc. 14-1 at 104]); played for the jury
the videotape of the police officers' interview of Petitioner (id. at 501-10 [Doc. 14-1 at 12729]); and presented a court reporter who testified to the accuracy of a transcript she prepared
of the video-recording of Wood's interview of Victim (id. at 396-99 [Doc. 14-1 at 101-02]),
a recording that was also played for the jury (id. at 411-13 [Doc. 14-1 at 105]).
Victim, who was Petitioner's daughter and four years old at the time of trial, testified
that Petitioner had done "bad stuff" to her. (Id. at 301, 345, 347, 368 [Doc. 14-1 at 77, 88,
89, 94].) While on the stand, Victim pointed to her vaginal area, what she referred to as her
"pie pie," and her buttocks, what she referred to as her "butt," and referred to her mouth, as
areas that Petitioner did "bad stuff" to. (Id. at 345-47 [Doc. 14-1 at 88-89].) In part, she
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testified that Petitioner put "his piepie" in her mouth and "[w]ater came out." (Id. at 348
[Doc. 14-1 at 89].) During cross- and recross-examination by Petitioner's counsel, Victim
responded to questions indicating both that Petitioner did not hurt her and that the "bad
things" Petitioner did to her "hurt." (Id. at 363-64, 369 [Doc. 14-1 at 93, 94].) Victim also
reported that she did not hit Simone Hunter's belly when Simone was pregnant and nodded
when asked, "[n]obody told you to hurt the baby?" (Id. at 366 [Doc. 14-1 at 93].)
Lisa Edwards, Victim's grandmother, testified that she lived with Victim and Victim's
mother, and was alone with Victim in January 2007 when Victim told her on two separate
occasions, in a car and at home, that Petitioner "did a bad thing to" her and indicated that he
had hurt her "private area" and "her butt." (Id. at 309-10, 312, 324 [Doc. 14-1 at 79, 80, 83].)
Victim also told Edwards that Petitioner had put his "peepee in her mouth" and "water" came
out. (Id. at 312-13 [Doc. 14-1 at 80].) In November or December 2006, Edwards testified,
Victim had spent some time with Petitioner at his house, and afterward Victim "seemed to
be withdrawn" and had changed in that she began "bed wetting, [had] nightmares, [was] very
clingy[, and was] masturbating." (Id. at 315-18, 323, 326-29 [Doc. 14-1 at 81, 83, 84].)
Wood was, early in 2007, an interview specialist or forensic interviewer with the
Children's Advocacy Center. (Id. at 375-77 [Doc. 14-1 at 96].) She testified that, in that
position, she had interviewed over a thousand children ranging in age from 3 through 17; and
she described the protocol that she followed while interviewing children. (Id. at 377-80
[Doc. 14-1 at 96-97].) Wood reported what she looks for in an interview and mentioned that
certain cues, such as a child's description of sensory details regarding what occurred, are
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important "[b]ecause it suggests a child is speaking from his or her own memory instead of
something else someone told them to say." (Id. at 389 [Doc. 14-1 at 99].)
On January 23, 2007, Wood interviewed Victim, with no one else in the interview
room, but with other adults, not Victim's family members, watching the interview from
behind a one-way mirror; and recorded that interview, which recording was admitted into
evidence, and played for the jury. (Id. at 382, 384-85, 412-13 [Doc. 14-1 at 97, 98, 105].)
Wood identified anatomical drawings of a girl and a boy on which lines were drawn between
body parts, specifically the penis, vagina, and buttocks, and words that Victim used to name
those parts: "thingy" or "dingading" for penis; "coocoo" for vagina, and "booty" for buttocks.
(Id. at 414-15 [Doc. 14-1 at 105-06].) Those drawings were used during Wood's interview
of Victim. (Id.)
Wood opined, based on her experience, her training, and her analysis of cues during
her interview of Victim, that Victim had not been "told what to say or coached in any way."
(Id. at 391 [Doc. 14-1 at 100]; see also id. at 410 [Doc. 14-1 at 104].) During crossexamination, Petitioner's attorney asked Wood whether she had seen any indication that
Victim had been coached and Wood testified that she had not. (Id. at 407 [Doc. 14-1 at
104].) After Wood testified and the video recording of Wood's interview of Victim was
played for the jury, Petitioner unsuccessfully moved to strike the DVD and Wood's
testimony. (Id. at 416 [Doc. 14-1 at 106].)
Kelly Patten, a pediatric medical social worker at St. Louis Children's Hospital,
interviews children visiting the hospital's emergency room, including those who may have
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suffered physical or sexual abuse; and, at the time of trial, had interviewed over five hundred
children in her three-and-one-half years of working there. (Id. at 435-37 [Doc. 14-1 at 111].)
She interviews a child who may have been the subject of physical or sexual abuse alone,
before the child is seen by other medical care providers. (Id. at 439-40 [Doc. 14-1 at 112].)
She looks for cues to help determine whether a child has been told what to say or has been
coached. (Id. at 441 [Doc. 14-1 at 112].)
On January 21, 2007, Patten interviewed Victim, with no one else present. (Id. at 44246, 451 [Doc. 14-1 at 112-13, 115].) Victim told Patten that Petitioner had put "his thing .
. . him dingaling" in her mouth, "in her booty and in her potpot," and pointed to her vaginal
area when asked what "his thing . . . him dingaling" was, to her buttocks for her "booty," and
to her vaginal area for her "potpot." (Id. at 443-45 [Doc. 14-1 at 113].) Victim told Patten
that "water came out in my mouth"; and that these things happened at Petitioner's house. (Id.
at 444-45 [Doc. 14-1 at 113].) Patten opined that Victim was not coached or told what to
say. (Id. at 456 [Doc. 14-1 at 116].)
Sara Nikravan, M.D., an emergency department resident, testified that she practiced
medicine at St. Louis Children's Hospital and examined Victim in January 2007, in the
presence of an attending physician and a nurse. (Id. at 461-62, 467 [Doc. 14-1 at 117, 119].)
They found no external markings or bruising on Victim; her vaginal area and anus were
normal with no signs of trauma, abrasions, cuts, rashes, marks, or lesions; and her hymen was
in tact. (Id. at 461-62 [Doc. 14-1 at 117].) Dr. Nikravan testified that "[i]n 95 percent of
prepubertal children, before puberty, children that are victims of sexual assault [have] no
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findings on physical exam" and "the longer you go [between the assault and the
examination], the less likely you are to find something" on physical examination. (Id. at 463
[Doc. 14-1 at 118].)
Robert Connell, an officer with the St. John Police Department, whose work as a
police officer focuses, in relevant part, on investigations of incidents involving juveniles as
victims, conducted a "cursory" interview of Victim on January 21, 2007, with Victim's
mother present, to ascertain whether a crime may have been committed. (Id. at 471-75 [Doc.
14-1 at 120-21].) Victim told him that Petitioner had done "bad things to" her, had "stuck
his thingy in her mouth and water came out," and had "hurt her booty and her piepie." (Id.
at 476-77 [Doc. 14-1 at 121].) When asked to point to and circle the "thingy" on a drawing
of a male figure, Victim "pointed to [and drew a circle around] the male genitalia or the penis
on the . . . picture." (Id. at 477 [Doc. 14-1].) When asked to circle the "piepie" on a female
picture, Victim "circled the . . . vagina on the picture." (Id.) When asked to point to the
"booty," Victim stood up and "pointed to her own personal buttocks area." (Id.) Officer
Connell brought two anatomically correct dolls to Victim, asked her to point to the "thingy,"
and she pointed to the "penis on the doll." (Id.) He laid the dolls on the couch where Victim
sat, and, while Officer Connell told Victim's mother the interview was complete and they
needed to go to Children's Hospital for a "check-up," Officer Connell noticed Victim had
placed "the male doll on top of the female doll [and] was making noises as she pressed them
together[,] going, 'uh, uh, uh.' [Victim was] asked . . . 'What are you doing?' And she said,
'This is what [Petitioner] does after he puts grease on me.'" (Id. at 478 [Doc. 14-1 at 121].)
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Officer Connell testified that Victim's mother did not coach or otherwise get involved with
Officer Connell's interview of Victim, other than to tell Victim "not to color on the couch."
(Id. at 479 [Doc. 14-1 at 122].)
That afternoon, after his interview with Victim, Officer Connell, along with a
detective, interviewed Petitioner after giving him his Miranda rights. (Id. at 480-82, 544
[Doc. 14-1 at 122, 138].) During the interview, Petitioner reportedly started out denying that
he was ever alone with Victim, or changed Victim's diapers, or gave Victim a bath, or
masturbated in Victim's presence, or showed her his penis, but then stated that she might
have seen him and a girlfriend have sex once; that, when Victim was in bed with Petitioner,
his penis may have touched Victim "along her legs, her thigh, and her buttocks area"; that
he remembered his penis being "erect at times when it was in contact with [Victim], skin on
skin"; and that he would "get a wash cloth and wipe her off" when "he got semen on" her
from masturbating. (Id. at 498-501; see also id. at 513 [Doc. 14-1 at 127, 130].) Officer
Connell testified that, during Petitioner's interview, Petitioner never admitted to putting his
penis in Victim's vaginal cavity, anal cavity, or mouth, although Petitioner stated that semen
was on Victim's "butt or anus" at some point and he admitted to masturbating on her or
around her, although he stated it was not intentional. (Id. at 513-14, 539 [Doc. 14-1 at 130,
137].)
The State rested; Petitioner unsuccessfully moved for a judgment of acquittal at the
close of the State's evidence; and the State successfully moved in limine to prevent any

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hearsay testimony from Simone Hunter regarding what Victim told her that Victim's mother
had said. (Id. at 567-68 [Doc. 14-1 at 145].)
Petitioner did not testify (see id. at 621-22 [Doc. 14-1 at 158]), and presented the
testimony of three witnesses: Simone Hunter, Georgia Hunter, and Shantrell Hunter.4 (Id.
at 569-621 [Doc. 14-1 at 145-59].) Simone testified that Petitioner had been her boyfriend
since April 2006 and, in July 2006, moved in with her, her parents, her sister, and her aunt.
(Id. at 569-70 [Doc. 14-1 at 145].) Simone stated that Victim stayed with them on occasion,
including for about four days during the period "a few days before Halloween" 2006 and
again around Thanksgiving 2006. (Id. at 572-73, 576 [Doc. 14-1 at 146, 147].) During those
visits, Victim slept on the couch in the living room, while Petitioner and Simone slept on a
mattress on the floor in the living room. (Id. at 573, 577-78 [Doc. 14-1 at 146, 147].) During
the Thanksgiving visit, Simone testified, Victim hit Simone in the stomach twice after
learning Simone was pregnant. (Id. at 578-79 [Doc. 14-1 at 147-48].) Georgia, Simone's
mother, testified that Victim stayed at their home for several days around Halloween and
Thanksgiving of 2006. (Id. at 596, 599 [Doc. 14-1 at 152, 153].) Georgia stated that, during
these visits, Victim slept on the couch, while Petitioner and Simone slept on a mattress on
the floor, in the living room. (Id. at 600-01 [Doc. 14-1 at 153].) Shantrell, Simone's sister,
testified that Victim stayed at their home for several days around Halloween and
Thanksgiving of 2006; and, when Victim spent the night during those visits, she would sleep

4

Because Petitioner's three witnesses have the same last name, the Court will refer to each
of them by their first name.
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on the couch, while Simone and Petitioner slept on a mattress on the floor, in the living room
(Id. at 608, 611, 617-18 [Doc. 14-1 at 155, 156, 157].) After this testimony, Petitioner rested,
and then unsuccessfully sought a judgment of acquittal at the close of all the evidence. (Id.
at 623-24 [Doc. 14-1 at 159].)
One of the instructions read to the jury stated in part:
From time to time the attorneys may make objections. They have a
right to do so and are only doing their duty as they see it. You should draw no
inference from the fact that an objection has been made.
If the Court sustains an objection to a question, you will disregard the
entire question and you should not speculate as to what the answer of the
witness might have been. The same applies to exhibits offered but excluded
from the evidence after an objection has been sustained. You will also
disregard any answer or other matter which the Court directs you not to
consider and anything which the Court orders stricken from the record.
(Instr. No. 2, Legal File, Resp'ts Ex. A, at 29 [Doc. 9].)
During his closing, the prosecutor argued, without objection, that Wood
is trained to look for kids that possibly are told what to say by their parents.
Coached is the term we use sometimes. [Wood] told you [about] her training,
her experience, her thousands of interviews with kids. [Victim] wasn't one of
those [coached] kids. [Victim] was talking about things 3 year olds don't talk
about. She did not appear to be coached; told what to say in any way.
(Trial Tr., Resp'ts Ex. G, at 634 [Doc. 14-1 at 162].)
The jury found Petitioner not guilty of the first-degree statutory sodomy offense
charged in Count I and guilty of the other two charged offenses. (Id. at 667-70 [Doc. 14-1
at 170-71]); Verdicts, Legal File, Resp'ts Ex. A, at 42-44 [Doc. 9].) After further evidence
was introduced, counsel presented additional argument, and the trial court read more

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instructions, the jury recommended a thirteen-year term of imprisonment on Count II and a
twelve-year term of imprisonment on Count III. (Trial Tr., Resp'ts Ex. G, at 670-98 [Doc.
14-1 at 171-78]; Verdicts, Legal File, Resp'ts Ex. A, at 51-52 [Doc. 9]).
In his motion for acquittal or in the alternative for new trial ("motion for new trial"),
Petitioner argued the trial court had erred in allowing and not striking the testimony of
Officer Connell regarding Petitioner's statements to the police; in allowing the showing of
the video recording of the police interview of Petitioner; in denying Petitioner's motion
seeking to declare as unconstitutional Mo. Rev. Stat. § 491.075 and in allowing Officer
Connell, Patten, Wood, and Edwards to testify about statements made to them by Victim; and
in overruling Petitioner's objection to the prosecutor's misstatement of evidence during
closing argument. (Pet'r Mot. New Trial, Legal File, Resp'ts Ex. A, at 55-62 [Doc. 9].) The
trial court subsequently denied Petitioner's motion for new trial, sentenced Petitioner in
accordance with the jury's recommendation, and ordered that the sentences run consecutively,
for a total term of imprisonment of twenty-five years. (Sentence and J., dated Feb. 19, 2008,
Legal File, Resp'ts Ex. A, at 63-65 [Doc. 9]; Sentencing Hr'g Tr., Resp'ts Ex. G, at 700, 705
[Doc. 14-1 at 178, 181].)
In his timely direct appeal, Petitioner raised two points. First, Petitioner cited, in
relevant part, Jackson v. Virginia, 443 U.S. 307 (1979), and argued that his Fourteenth
Amendment right to due process was denied in that there was insufficient evidence to prove
his guilt beyond a reasonable doubt because Victim's testimony at trial was so contradictory
that it could not be relied on without corroboration. (Pet'r Br., Resp'ts Ex. B, at 14 and 16
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[Doc. 9].) In his second and final point, Petitioner contended that his Sixth and Fourteenth
Amendment rights to a fair trial and to present a defense were violated by the trial court's
exclusion of Simone's testimony describing how Victim told Simone that Victim's mother
had "ordered" Victim to hit Simone in the stomach when Simone was pregnant, in that it
constituted a prior inconsistent statement due to Victim's prior contrary testimony and it
supported Petitioner's defense that Victim's mother induced Victim to implicate Petitioner.
(Id. at 15 and 24 [Doc. 9].)
The Missouri Court of Appeals for the Eastern District affirmed the conviction and
sentence in a summary order, supplemented by a memorandum sent only to the parties setting
forth the reasons for the decision. (Per Curiam Order and Mem. Supplementing Order
Affirming J. Pursuant to Rule 30.25(b), dated Dec. 9, 2008, Resp'ts Ex. C). In its decision,
the state appellate court summarized the facts relevant to these claims as follows:
In late November or early December of 2006, [V]ictim, a three-year-old
female, visited [Petitioner], her father, for four days. During the visit,
[Petitioner] attempted to insert his penis into [V]ictim's vagina and into her
anus. [V]ictim testified at trial. Also at trial, the court sustained the state's
motion in limine to exclude the testimony of Simone. . . , [Petitioner's]
girlfriend, that [V]ictim had said that [Victim's] mother had told her to hit
[Simone], who was then pregnant, in the stomach.
*

*

*

During direct examination, [V]ictim testified that [Petitioner] did "bad
stuff" to her vaginal area and her buttocks. On cross examination, defense
counsel posed the following question: "[Petitioner] didn't really hurt you at all,
did he?" [V]ictim responded, "No." On redirect, [V]ictim again testified that
[Petitioner] did "bad things" to her. On re-cross, [V]ictim reaffirmed that
Defendant did "bad things" to her and also stated that those things hurt.

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*

*

*

After the close of the state's evidence, the state made a motion in limine
to exclude [Simone]'s testimony about [V]ictim's statements to her that related
[V]ictim's mother's statements to [V]ictim. The following colloquy transpired:
[PROSECUTOR]: I think I have one thing. In review of
the transcript from the [pretrial] hearing [regarding the
admissibility of Victim's statement to four others] when
[Simone] testified she mentioned on a couple of occasions
hearsay statements. She mentioned statements [[V]ictim] told
her, which is hearsay, that apparently [[V]ictim's mother] had
told [[V]ictim], which is double hearsay. At this point I would
make a Motion in Limine pertaining to any hearsay statements
made by [Simone]. I have no problem if she testifies as to what
she observed or saw, but any statements uttered by other people
are hearsay.
THE COURT: Any response?
[DEFENSE COUNSEL]: I would grant any statements
by [[V]ictim's mother] would be hearsay. The only thing is that
when [[V]ictim] was up here she testified she never hit
[Simone's] stomach or never said anything. If [Simone] would
rebut that with statements [[V]ictim] made; not [[V]ictim's
mother], but of [[V]ictim], I would say those should come in as
rebuttal evidence.
THE COURT: I'm granting the State's Motion in Limine
regarding any statements. I think we have to wait and see what
those statements were to see if they do impeach her or contradict
what [[V]ictim] said.
[PROSECUTOR]: Particularly if [Simone's] going to
testify to what [[V]ictim's mother] told her.
THE COURT: That's sustained. Your motion is granted.
(Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Dec. 9, 2008,
Resp'ts Ex. C, at 2, 3, 5-6 [Doc. 9]) (twenty-first, twenty-fifth, twenty-seventh, twenty-ninth,
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thirty-second, thirty-third, thirty-fifth, thirty-ninth, forty-first, forty-third, forty-fifth, fortyseventh, and forty-ninth alterations in original).
In resolving Petitioner's first point, that Petitioner's right to due process was denied
in that there was insufficient evidence to prove his guilt beyond a reasonable doubt because
Victim's testimony at trial was so contradictory that it could not be relied on without
corroboration, the Missouri Court of Appeals stated that a victim's testimony, even if
uncorroborated, will ordinarily sustain a sexual offense conviction. Id. at 3. A young
victim's inconsistent or contradictory statements relating to a sexual experience may,
however, necessitate corroborating evidence, the state appellate court noted, when the
testimony "is so contradictory and in conflict with physical facts, surrounding circumstances,
and common experiences that its validity is doubtful." Id. at 4, 3 (internal quotation marks
omitted) (quoting State v. Paulson, 220 S.W.3d 828, 833 (Mo. Ct. App. 2007)). Upon review
of the evidence presented at trial in a light most favorable to the verdict, disregarding all
contradictory evidence and inferences, and deferring to "the jury's superior position to assess
the credibility of witnesses and the weight and value of their testimony," id. at 2-3, the state
appellate court concluded corroboration was not necessary and, in any event, Victim's
testimony was fully corroborated. Id. at 4. The Missouri Court of Appeals found
corroboration in the "consistent, out-of-court" statements Victim had made to Officer
Connell, Edwards, and Patten regarding "how [Petitioner] attempted to place his penis inside
her vagina and anus"; in Victim's description and demonstration, during Wood's interview,
of Petitioner's "attempts to put his penis in her vagina and her anus"; and in Edwards'
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observations of the change in Victim's behavior after Victim visited Petitioner, i.e., that
Victim "appeared withdrawn and unhappy, and she began wetting the bed, having
nightmares, and masturbating." Id. Therefore, the state appellate court concluded, the State
had adduced sufficient evidence to support the two guilty verdicts. Id. at 5.
As to Petitioner's second and final point on direct appeal, which challenged as a
violation of his Sixth and Fourteenth Amendment rights to a fair trial and to present a defense
the exclusion of Simone's testimony that Victim told Simone that Victim's mother had
"ordered" Victim to hit Simone in the stomach when Simone was pregnant, the state
appellate court found that review of this point was inappropriate because Petitioner "wholly
failed to preserve in the trial court the issue he now asserts on appeal." Id. at 6. In addition
to finding that Petitioner did not raise the issue in his motion for new trial, as Petitioner
conceded, the Missouri Court of Appeals concluded the challenge was not preserved for
other reasons as well. Id. at 5. The state appellate court pointed out that Petitioner "agreed
that [Simone] could not testify to . . . [V]ictim's statements about what [V]ictim's mother told
[V]ictim." Id. at 6. Additionally, the state court of appeals observed that Petitioner did not
refer to any point in Simone's testimony "at which [Petitioner] sought to have [Simone]
testify to [V]ictim's statements about what [V]ictim's mother said as a matter of impeachment
or contradiction." Id. Finally, that court noted Petitioner had not disclosed
any place in the record [where] he told the trial court that [Simone]'s testimony
about what [Victim] told her that [Victim's] mother told [V]ictim would be
admissible on the ground that it supported his defense that [V]ictim was
induced by her mother to implicate him, a new theory he presents on appeal.

-17-

Id.
The court issued its mandate on January 6, 2009; and Petitioner did not pursue further
review of the trial court's judgment. (See docket sheet for State v. Pearson, No. ED91010
(Mo.

Ct.

App.

filed

Feb.

29,

2008)

(docket

sheet

available

at

https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited Sept. 9, 2014).)
Petitioner then filed a timely pro se motion for post-conviction relief. (Pet’r Mot.,
filed Mar. 12, 2009, Legal File, Resp'ts Ex. D, at 3-12). Through counsel, Petitioner
subsequently filed an amended motion, including a request for an evidentiary hearing, in
which Petitioner argued that his trial counsel provided ineffective representation in two
respects. (Pet'r Am. Mot., filed June 29, 2009, Legal file, Resp'ts Ex. D, at 17-45 [Doc. 9].)
First, Petitioner urged his Fifth, Sixth, and Fourteenth Amendment rights to due process, to
a fair and impartial jury, and to the effective assistance of counsel were violated (a) when his
trial attorney failed to file a motion in limine to prevent Wood's testimony and failed to
object to the prosecutor's questioning about whether Victim had been coached, as well as the
prosecutor's closing argument that Victim had not been coached, (b) when his trial attorney
failed to obtain an instruction that the jury disregard Wood's opinion about coaching, and (c)
when his trial attorney cross-examined Wood about that opinion. (Id. at 19-21.) For his
second claim, Petitioner contended that he was denied his Fifth, Sixth, and Fourteenth
Amendment rights to due process, to a fair trial, and to the effective assistance of counsel
when his trial attorney failed to provide a redacted recording of Petitioner's police interview
that excluded statements about uncharged and prior bad acts. (Id. at 21.)
-18-

The motion court held an evidentiary hearing on Petitioner's amended post-conviction
motion, at which Petitioner and his trial attorney testified. (Order, filed June 25, 2009, Legal
File, Resp'ts Ex. D, at 46, 47 [Doc. 9]; Evid. Hr'g Tr., Resp'ts Ex. H [Doc. 16-1].) The
motion court subsequently denied that motion. (Mot. Court's Findings of Fact, Conclusions
of Law, and J., dated Sept. 8, 2009, Legal File, Resp'ts Ex. D, at 67-71 [Doc. 9].)
Petitioner presented two points in his timely post-conviction appeal. (Pet'r Br., Resp'ts
Ex. E, at 17-19.) First, Petitioner argued that his Fifth, Sixth, and Fourteenth Amendment
rights to due process, a fair trial, and the effective assistance of counsel were violated by his
trial attorney's failure to file a motion in limine to exclude Wood's testimony, failure to object
during the prosecutor's questioning of Wood about whether or not Victim was coached,
cross-examination of Wood on the coaching issue, and failure to object during the State's
closing argument regarding Wood's opinion on whether or not Victim had been coached. (Id.
at 17-18, 21-22.) For his second and final point in his post-conviction appeal, Petitioner
contended that his Fifth, Sixth, and Fourteenth Amendment rights to due process, to present
a defense, to a fair trial, and to the effective assistance of counsel were violated by his trial
attorney's failure to provide a redacted copy of the video-recording of his police interview,
that excluded statements regarding his uncharged and prior bad acts, to play for the jury.
(Id. at 19-20, 32.)
The Missouri Court of Appeals for the Eastern District affirmed the motion court's
decision in a summary order, supplemented by a memorandum sent only to the parties setting

-19-

forth the reasons for its decision. (Per Curiam Order and Mem. Supplementing Order
Affirming J. Pursuant to Rule 84.16(b), dated September 14, 2010, Resp'ts Ex. F).
The state appellate court summarized the relevant facts as follows:
In late November or early December of 2006, [Victim], then three years
of age, stayed with [Petitioner], her father, for several days. During this visit,
[Petitioner] . . . attempted to insert his penis into her vagina and anus.
*

*

*

At trial, Victim's grandmother ([Edwards]) testified that Victim
informed her of the abuse in January 2007. Victim told [Edwards],
"[Petitioner] did a bad thing to me," and said "he hurt this," pointing to her
buttocks. Victim raised the topic again a couple days later when [Edwards]
was preparing to bathe her. Again, Victim told [Edwards] that [Petitioner]
"did bad things" to her and indicated that he hurt her buttocks. Victim went
on to say, "[Petitioner] put something in here, in my mouth." Victim told
[Edwards] that he put "his peepee" in her mouth and "water came out." In the
weeks . . . following Victim's visit with [Petitioner], [Edwards] observed that
Victim was withdrawn and unhappy and exhibited unusual behavior such as
wetting the bed, acting "very clingy," and masturbating.
Officer Robert Connell of the St. John Police Department testified that
he received the report of alleged sexual assault and performed a cursory
interview of Victim on January 21, 2007. During the interview, Victim told
Officer Connell that [Petitioner] "stuck his thingy in her mouth" and "water
came out," and [Petitioner] hurt her "booty" and her "piepie." As Officer
Connell was concluding the interview, he noticed Victim playing with two
anatomically correct dolls. Victim had placed the male doll on top of the
female doll and "was making noises as she pressed them together. She was
going, 'uh, uh, uh.'" When Victim[ was] asked . . . what she was doing, Victim
said, "This is what [Petitioner] does after he puts grease on me." Officer
Connell stated that, during his interview with Victim, Victim's mother did not
"direct[] her what to say, either verbally or non-verbally."
Officer Connell also testified about his videotaped interview of
[Petitioner], which he conducted on January 21, 2007. Officer Connell stated
that [Petitioner's] interview lasted over six hours. [Petitioner] initially denied
-20-

any inappropriate sexual contact with Victim. However, as the interview
progressed, [Petitioner] made the following admissions: Victim saw him
having intercourse, and oral sex with his girlfriend; when he and Victim were
sleeping, his penis would touch her legs, thighs, and buttocks; and he had
masturbated in bed with Victim and ejaculated on her. Over . . . objections [of
Petitioner's trial attorney], the prosecutor played the DVD of the interview for
the jury, fast-forwarding through the portions of the interview that were
excluded by the trial court.
Kelly Patten, the pediatric medical social worker who interviewed
Victim at St. Louis Children's Hospital on January 21, 2007, testified that
Victim told her [Petitioner] "put his thing in my mouth, him dingaling." Ms.
Patten asked Victim if [Petitioner] put his penis anywhere else on her body,
and Victim told her that "he put his thing in her booty and her potpot, and she
pointed to her buttocks and vaginal area respectively." Ms. Patten testified that
Victim had "very advanced sexual knowledge for a 3 year old," and said she
did not believe that Victim had been coached or told . . . what to say.
Luzette Wood, the interview specialist for Children's Advocacy
Services of Greater St. Louis who interviewed Victim on January 23, 2007,
testified that Victim told her that [Petitioner] put his "dingaling" in her mouth,
in her "coocoo," and in her "booty." When Ms. Wood asked Victim to circle
the corresponding body parts on anatomical drawings, Victim circled the male
penis and the female vagina and anus. Ms. Wood explained that, as a forensic
interviewer, she looks for indications that a child's allegations may be based
on the coaching of an adult and not on that child's personal experience. When
the prosecutor asked Ms. Wood, "[I]n looking at the cues, and your experience
and your training, did it appear from your observation that [Victim] was being
told what to say or coached in any way?," [Petitioner's trial attorney] objected
on the grounds that the question called for speculation. The trial court
overruled [that] objection, and Ms. Wood stated that it did not appear that
Victim was coached. [Petitioner's trial attorney] briefly revisited with Ms.
Wood the matter of coaching when he cross-examined Ms. Wood:
COUNSEL: You also stated to the prosecutor it is not your job
to decide if the child is coached?
MS. WOOD: Right. It's the jury's.
COUNSEL: But you did – but you did answer his questions and
said you didn't think she was coached?
-21-

MS. WOOD: Okay.
COUNSEL: Is that accurate?
MS. WOOD: You were here. I think he asked if I saw any
indication she had been.
COUNSEL: And did you?
MS. WOOD: No.
In closing argument, the prosecutor referred to Ms. Wood's testimony, saying:
[Ms. Wood] is trained to look for kids that possibly are told
what to say by their parents. Coached is the term we use
sometimes. [Ms. Wood] told you [about] her training, her
experience, her thousands of interviews with kids. [Victim]
wasn't one of those [coached] kids. [Victim] was talking about
things 3 year olds don't talk about. She did not appear to be
coached; told what to say in any way.
[Petitioner's trial attorney] did not object[, and] addressed the issue of coaching
in his closing argument, saying Ms. Wood was a "trained testifier" who "had
her arm raised well before she ever got to the judge."
Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated September 14,
2010, Resp'ts Ex. F, at 2-5 [Doc. 9] (three footnotes omitted) (eighteenth, twenty-seventh,
thirty-second, thirty-third, thirty-fifth, and thirty-seventh alterations in original).
The state appellate court then noted that the post-conviction motion court denied the
motion after conducting an evidentiary hearing at which Petitioner and his trial attorney
testified. Id. at 6. The appellate court summarized the motion court's judgment as follows.
The motion court found that [Petitioner's trial attorney] was not ineffective for
improperly dealing with Ms. Wood's testimony that, based on her training and
experience, she did not believe Victim had been coached. The motion court
noted that [the attorney] had, in fact, objected to the coaching question, and it
-22-

found that "the witness here was not commenting on the truth of the testimony
of others but was instead being requested to provide insight into the behavior
of an interview subject." The motion court also held that [Petitioner's trial
attorney] was not ineffective in failing to provide a redacted DVD because
[that attorney] objected to, and the trial court excluded, the portions of the
interview relating to [Petitioner]'s prior bad acts, and those portions of the
DVD to which [Petitioner's trial attorney] objected were not played for the
jury.
Id. at 6-7.
Applying the ineffective assistance of counsel claim standard set forth in Strickland
v. Washington, 466 U.S. 668, 687 (1984), the state appellate court affirmed the motion
court's judgment, concluding Petitioner had failed to show either that counsel's performance
was unreasonable or that Petitioner was prejudiced. (Mem. Supplementing Order Affirming
J. Pursuant to Rule 84.16(b), dated September 14, 2010, Resp'ts Ex. F, at 7-11 [Doc. 9].)
As to Petitioner's claim that his trial counsel provided ineffective assistance in dealing
with Wood's testimony that Victim had not been coached, the state appellate court addressed
each contention individually and concluded that the attorney had not provided ineffective
assistance of counsel.

Specifically, the court concluded that a motion in limine is

interlocutory in nature and does not conclusively bar the introduction of the challenged
evidence, so Petitioner was not prejudiced by his trial attorney's failure to file such a motion;
that Petitioner's trial attorney did object, although unsuccessfully, when the prosecutor asked
Wood whether she believed Victim was coached, see Trial Tr., Resp'ts Ex. G, at 391 [Doc.
14-1 at 100]; and that a prosecutor has wide latitude in making closing argument and may
properly comment on and make reasonable inferences from matters in evidence, such as

-23-

Wood's opinion that Victim was not coached. (Mem. Supplementing Order Affirming J.
Pursuant to Rule 84.16(b), dated September 14, 2010, Resp'ts Ex. F, at 8-9 [Doc. 9].)
Additionally, the Missouri Court of Appeals found there was "overwhelming
evidence" of Petitioner's guilt, so Petitioner was not able to establish that he "was prejudiced
by . . . Wood's testimony, on direct and cross-examination, that Victim did not appear to have
been coached." Id. at 9. In particular, the state appellate court pointed out that
Victim made several consistent out-of-court disclosures about the abuse, and
her disclosures exhibited advanced sexual knowledge for a child of her age.
For example, Victim said that [Petitioner] put his penis in her mouth and
"water" came out; [Petitioner] hurt her vagina and anus; and [Petitioner] put
"grease" on her vagina and anus before penetrating them. Additionally,
[Petitioner] made incriminating statements to police. Although he did not
confess to the crimes charged, he admitted to having sex and masturbating in
the same bed as Victim. He also told police he had touched Victim's thighs,
legs, and buttocks with his erect penis and that he had ejaculated on Victim.
Id.
With respect to this point, the state court of appeals further concluded that Wood's
challenged testimony did not prejudice Petitioner "because it was cumulative to other
evidence admitted at trial," such as Patten's similar opinion testimony and the testimony of
Officer Connell that Victim "did not appear to be receiving direction, either verbal or
nonverbal, from her mother" during his conversation with Victim. Id. at 10.
For his second point on appeal, that his trial attorney provided ineffective assistance
in failing to provide a redacted copy of the video recording of Petitioner's police interview,
the state appellate court found the claim lacked merit. Id. at 10-11. The appellate court
noted that before trial, counsel moved to suppress the entire recording because, "while
-24-

[Petitioner] did make inconsistent and incriminating statements, he did not confess to the
crimes charged"; and, when denying the motion, the trial court expressly allowed Petitioner
to make objections during trial. Id. at 10. Petitioner's trial attorney objected during trial and
the trial court agreed to exclude, "'Anything that refers to [Petitioner's] juvenile record or
anything that refers to sexual abuse inflicted upon [Petitioner]." Id. The prosecutor fastforwarded the video through the excluded portions of the interview. Id. The state appellate
court pointed out that Petitioner did "not suggest that any excluded portions of the DVD were
played for the jury [but contends] that he was prejudiced" because his trial attorney had to
object at trial, which conveyed to "the jury that evidence was being hidden from them." Id.
at 10-11. The Missouri Court of Appeals found this proposition to be mere speculation rather
than "substantive evidence of counsel's ineffectiveness." Id. at 11 (internal quotation marks
omitted) (quoting Weekley v. State, 265 S.W.3d 319, 323 (Mo. Ct. App. 2008)). The
appellate court also noted that the trial court properly instructed the jury to disregard
information when an objection was sustained or when the trial court directed the jury not to
consider it. Id.
The state appellate court issued its mandate on October 7, 2010. (See docket sheet
for Pearson v. State, No. ED93791 (Mo. Ct. App. filed Oct. 16, 2009) (available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do (last visited on Sept. 9, 2014).)
Petitioner did not pursue further review of the post-conviction motion court's judgment. (Id.)
Petitioner then timely filed his federal habeas petition in which he presents four
grounds for relief. First, Petitioner argues that his Fourteenth Amendment right to due
-25-

process was violated because there was insufficient evidence to support the conviction in that
Victim's testimony was so contradictory that it required, but lacked, corroboration. For his
second ground, Petitioner urges that the trial court violated his Sixth and Fourteenth
Amendment rights to a fair trial and to present a defense by excluding Simone's testimony
that Victim told Simone that Victim's mother "ordered" Victim to hit Simone in the stomach
when Simone was pregnant. Petitioner contends Victim's statement to Simone was a prior
inconsistent statement because Victim had testified to the contrary; and that it supports his
defense that Victim's mother induced Victim to implicate Petitioner. Next, Petitioner asserts
his Fifth, Sixth, and Fourteenth Amendment rights to due process, a fair trial, and the
effective assistance of counsel were violated by his trial attorney in addressing Wood's
testimony. Specifically, Petitioner urges that his trial attorney failed to file a motion in
limine regarding Wood; failed to object to the prosecutor's improper questioning of Wood
about whether Victim was coached; cross-examined Wood about such coaching; failed to
object when, during closing argument, the prosecutor argued that, based on Wood's training,
it did not appear that Victim was coached or told what to say; and failed to request an
instruction that the jury disregard this aspect of Wood's testimony. For his fourth and final
ground, Petitioner urges his Fifth, Sixth, and Fourteenth Amendment rights to due process,
to present a defense, to a fair trial, and to the effective assistance of counsel were violated
when his trial attorney failed to provide a redacted copy of the video recording of his police
interview that excluded statements about uncharged and prior bad acts.

-26-

Respondents counter that the second ground for relief is procedurally barred, and that
all of Petitioner's grounds for relief are without merit. This Court will first address the
procedural issues focused on Petitioner's second ground, and then the merits of any ground
for relief that may be addressed on its merits.
Discussion
Procedural Default. Petitioner urges in his second ground that the trial court violated
his Sixth Amendment and Fourteenth Amendment rights to due process by excluding
Simone's testimony that Victim told Simone that Victim's mother "ordered" Victim to hit
Simone in the stomach when Simone was pregnant. Petitioner argues Victim's statement to
Simone was a prior inconsistent statement because Victim had testified to the contrary; and
that it supports his defense that Victim's mother induced Victim to implicate Petitioner.
Respondents contend that this Court cannot consider the merits of this defaulted claim
because the state appellate court did not consider its merits upon finding that Petitioner had
failed to preserve the matter for appellate review.
To avoid procedurally defaulting on a claim, a Petitioner seeking habeas review must
have fairly presented the substance of the claim to the state courts, thereby affording the state
courts a fair opportunity to apply controlling legal principles to the facts bearing on the
claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks
and citations omitted) (quoting, in part, Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam)); accord Baldwin v. Reese, 541 U.S. 27, 29 (2004). "A claim has been fairly
presented when a petitioner has properly raised the 'same factual grounds and legal theories'
-27-

in the state courts which he is attempting to raise in his federal habeas petition." Wemark,
322 F.3d at 1021 (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). A
petitioner must also exhaust his state remedies, by giving "the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State's
established appellate review process." Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011)
(internal quotation marks omitted) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999)). Claims that have not been exhausted and fairly presented to the state courts are
procedurally defaulted. Wemark, 322 F.3d at 1022 (quoting Gray v. Netherland, 518 U.S.
152, 161-62 (1996)).
In Missouri, "[t]o preserve a constitutional question for review on appeal, it must be
preserved in the motion for new trial. State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975)." State
v. Cella, 32 S.W.3d 114, 117 (Mo. 2000) (en banc) (per curiam). Here, Petitioner did not
present in his motion for new trial any error arising from the trial court's order prohibiting
Simone from testifying that Victim told Simone Victim's mother had "ordered" Victim to hit
Simone in the stomach when she was pregnant. The state appellate court found this issue
was "unpreserved for numerous . . . reasons" in addition to Petitioner's concession that it
"was not preserved for appeal because it was not asserted in his motion for new trial." The
Missouri Court of Appeals denied the point, without considering its merits, upon concluding
"plain error review [was] inappropriate" due to Petitioner's failure to preserve it for appellate
review. The state appellate court not having reviewed this issue due to Petitioner's failure
properly to preserve it for review, the issue is procedurally defaulted.
-28-

Absent a showing of 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).
Petitioner has not demonstrated any cause for his failure properly to present to the
state courts the constitutional claim now set forth in ground two of his federal habeas
petition. Because no cause has been established, it is unnecessary to consider whether
Petitioner has demonstrated prejudice. Abdullah v. Groose, 75 F.3d 408, 413 (8th Cir.
1996) (en banc).
The merits of Petitioner's defaulted claim may be reached, despite the absence of a
showing of cause and prejudice for his procedural default, if he establishes that a failure to
-29-

consider the claim's merits will result in a fundamental miscarriage of justice. That exception
to a claim's procedural bar "requires a habeas petitioner to present new evidence that
affirmatively demonstrates that he is innocent of the crime for which he was convicted."
Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). Petitioner must show not only new
evidence, but "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). Evidence is "new"
for purposes of this test "if it was 'not available at trial and could not have been discovered
earlier through the exercise of due diligence.'" Osborne, 411 F.3d at 920 (quoting Amrine
v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)). "'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).
Petitioner has not submitted any new evidence of his actual innocence so as to permit
this Court to consider the merits of Petitioner's defaulted claim in ground two.
Under the circumstances, ground two is procedurally barred due to Petitioner's
procedural default and failure to demonstrate either cause and prejudice or a fundamental

-30-

miscarriage of justice to support consideration of the merits of that procedurally barred claim.
Therefore, the undersigned will deny ground two without further consideration of its merits.
Standard of Review of the Merits of the Claims in Grounds One, Three, and Four. "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. 28 U.S.C. § 2254." 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)

("Taylor"). 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, 562
U.S. 86, 131 S. Ct. 770, 786 (2011)), cert. denied, 134 S. Ct. 85 (2013). A state court
decision is an unreasonable application of clearly established federal law if it "correctly
-31-

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). 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, 44 (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,
-32-

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.
Sufficiency of the Evidence - Victim's Allegedly Uncorroborated, Contradictory
Testimony (Ground One). Petitioner contends in ground one that his Fourteenth Amendment
right to due process was violated because there was insufficient evidence to support the
conviction in that Victim's testimony was so contradictory that it required, but lacked,
corroboration to support the conviction. Respondents counter that the state appellate court's
decision on direct review that the evidence was sufficient to support the conviction is not
either contrary to or an unreasonable application of clearly established federal law.
Additionally, to the extent Petitioner may be arguing that the state court incorrectly applied
a state evidentiary rule requiring corroboration when a victim's testimony is contradictory,
Respondents argue such an argument does not state a claim for federal habeas relief.
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Here, the Missouri Court of Appeals based its decision that there was sufficient
evidence to support the verdicts upon a review of the evidence presented at trial in a light
most favorable to the verdicts, disregarding all contradictory evidence and inferences, and
deferring to the jury's assessment of credibility and the weight and value of the witnesses'
testimony. This is the manner in which a federal habeas court must review the evidence
when resolving a constitutional sufficiency of the evidence claim in a federal habeas
proceeding. See Jackson, 443 U.S. at 318, 319, 326 (resolution of a due process sufficiency
of the evidence claim requires a federal habeas court to view the evidence in a light most
favorable to the prosecution, "presume the trier of facts resolved [any] conflicts in favor of
the prosecution, and "defer to that resolution" to ascertain whether "any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.")
Notably, Petitioner did not present clear and convincing evidence to rebut any of the
Missouri Court of Appeals' factual findings, including credibility determinations, regarding
this issue. Therefore, this Court defers to those findings.
In Missouri, "[a]ttempted statutory rape in the first degree occurs where a subject,
with the purpose of committing the offense, takes a substantial step towards having 'sexual
intercourse with another person who is less than fourteen years old,'" State v. Smith, 330
S.W.3d 548, 555 (Mo. Ct. App. 2010) (quoting Mo. Rev. Stat. §§ 566.032.1 and 564.011.1),
and "[a]ttempted penetration is not required to convict [a person] of attempted rape," State
v. Young, 781 S.W.2d 212, 216 (Mo. Ct. App. 1989).

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A person commits the crime of first-degree statutory sodomy [under
Mo. Rev. Stat. § 566.062.1 (2006)] if he has deviate sexual intercourse with
another person who is less than fourteen years old. Deviate sexual intercourse
includes any act involving the genitals of one person and the hand, mouth,
tongue, or anus of another person or a sexual act involving the penetration,
however slight, of the male or female sex organ or the anus by a finger,
instrument or object done for the purpose of arousing or gratifying the sexual
desire of any person. . . . A person is guilty of an attempt to commit an offense
when, with the purpose of committing the offense, he does any act which is a
substantial step towards the commission of the offense. . . . A substantial step
is conduct which is strongly corroborative of the actor's purpose to complete
the commission of the offense.
State v. Moore, 432 S.W.3d 779, 781-82 (Mo. Ct. App. 2014). Importantly, "the 'attempt'
statute . . . does not require that an actual and specific attempt be made to perform each and
every element of the crime." State v. Kendus, 904 S.W.2d 41, 43 (Mo. Ct. App. 1995).
Furthermore, "the circumstances of [the attempt] case must be closely examined" because
the accused's intent "in an attempt case is rarely susceptible of direct proof." Id.
The Court understands the allegedly inconsistent testimony by Victim pertains to her
answers to whether or not Petitioner's actions hurt her. Here, as the Missouri Court of
Appeals found, the then-four-year-old Victim's in-court testimony during the late 2007 trial
was supported by others' testimony regarding the "consistent, out-of-court" statements Victim
had made to Officer Connell, Edwards, Patten, and Wood describing "how [Petitioner]
attempted to place his penis inside her vagina and anus" and by Edwards' testimony regarding
her observations of the change in Victim's behavior after Victim visited Petitioner in late
2006. Having viewed the evidence in a light favorable to the prosecution and having
deferred to the jury's resolution of any conflicts in favor of the prosecution, this Court's

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review of the record establishes that a rational trier of fact could find the essential elements
of the attempted statutory rape and attempted statutory sodomy offenses beyond a reasonable
doubt, and the state appellate court's findings are supported by the record. The appellate state
court did not incorrectly or unreasonably apply clearly established federal law when
concluding that there was sufficient evidence to support the jury's verdict that Petitioner was
guilty of those two offenses.
To the extent Petitioner's first ground is a claim based on the state appellate court's
consideration of the necessity of corroboration to support Victim's testimony, the
corroboration requirement addressed by the state court is a matter of state law, concerns the
evidence needed to support a young victim's contradictory testimony, and is, therefore, a state
rule of an evidentiary nature. A federal habeas court "may not review any evidentiary rulings
unless they implicate federal constitutional rights." Evans v. Luebbers, 371 F.3d 438, 443
(8th Cir. 2004) (citing Estelle v. McGuire, 502 U.S. 62, 68 (1991)). Petitioner has not
pointed to any federal constitutional right implicated by the corroboration requirement, other
than the due process argument discussed above. Under the circumstances, any claim by
Petitioner based on the state appellate court's resolution of the state law corroboration
requirement is not cognizable in this federal habeas proceeding.
Ground one is denied
Trial Attorney Conduct (Grounds Three and Four). The remaining grounds, grounds
three and four, are claims arising out of Petitioner's trial attorney's conduct regarding Wood
(ground three) and Petitioner's trial attorney's failure to provide a redacted version of the
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video recording of Petitioner's interview by police officers (ground four). Respondent
contends Petitioner is not entitled to relief on either of these claims because the Missouri
Court of Appeals, on post-conviction review, did not incorrectly or unreasonably apply
clearly established federal law in denying each of these claims on its merits.
Elements of an Ineffective Assistance of Counsel Claim. An accused's Sixth
Amendment right to the assistance of counsel is a right to the effective assistance of counsel.
Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007) (citing Kimmelman v. Morrison,
477 U.S. 365, 377 (1986)). In Strickland, supra, the Supreme Court established a two-part
test for determining whether or not an attorney provided effective assistance of counsel. The
petitioner must establish both deficient performance, i.e., that "counsel's representation fell
below an objective standard of reasonableness," and prejudice, i.e., that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 687-88, 694. Importantly, to prevail on an
ineffective assistance of counsel claim in a § 2254 habeas case, Petitioner
must do more than show that he would have satisfied Strickland's test if his
claim were being analyzed in the first instance, because under [28 U.S.C.] §
2254(d)(1), it is not enough to convince a federal habeas court that, in its
independent judgment, the state-court decision applied Strickland incorrectly.
Rather, he must show that the [state appellate court] applied Strickland to the
facts of his case in an objectively unreasonable manner.
Bell v. Cone, 535 U.S. 685, 698-99 (2002) (one citation omitted); Underdahl v. Carlson,
381 F.3d 740, 742 (8th Cir. 2004).

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For the performance prong of an ineffective assistance of counsel claim, a petitioner
must demonstrate that "counsel's performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a reasonably competent attorney."
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) ("Armstrong") (citing Strickland,
466 U.S. at 687-89). "Only reasonable competence, the sort expected of the 'ordinary fallible
lawyer,' is demanded by the Sixth Amendment." White v. Helling, 194 F.3d 937, 941 (8th
Cir. 1999) (quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir. 1992)). The court is
highly deferential in analyzing counsel's conduct and "'indulg[es] a strong presumption that
counsel's conduct falls within the wide range of professional judgment.'" Armstrong, 534
F.3d at 863 (quoting Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)).
To establish prejudice, there must be a showing of "a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694; Armstrong v. Kemna, 590 F.3d 592, 595-96 (8th Cir. 2010)
("Kemna") (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1105 (8th Cir. 1996)). "'A
reasonable probability is [a probability] sufficient to undermine confidence in the outcome.'"
Kemna, 590 F.3d at 596 (quoting McCauley-Bey, 97 F.3d at 1105); accord Carroll v.
Schriro, 243 F.3d 1097, 1100 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 694). The
petitioner bears the burden of showing such a reasonable probability, Lawrence v.
Armontrout, 961 F.2d 113, 115 (8th Cir. 1992); and, in determining whether or not there
was prejudice, this Court must consider the totality of the evidence, Kemna, 590 F.3d at 596.

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The question of prejudice from counsel's performance need not be reached if the
performance was not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir.
1998). Conversely, the question of counsel's allegedly deficient performance need not be
reached if a petitioner has failed to show prejudice. See Strickland, 466 U.S. at 697;
Williams v. Locke, 403 F.3d 1022, 1025 (8th Cir. 2005).
As to ground three, Petitioner has not satisfied his heavy burden to show the
incorrectness or unreasonableness of the Missouri Court of Appeals' determination that he
failed to establish that his trial attorney provided ineffective assistance of counsel in
addressing Wood's testimony. Specifically, Petitioner urges that his trial attorney failed to
file a motion in limine regarding Wood; failed to object to the prosecutor's improper
questioning of Wood about whether Victim was coached; cross-examined Wood about such
coaching; failed to object when, during closing argument, the prosecutor argued that, based
on Wood's training, it did not appear that Victim was coached or told what to say; and failed
to request an instruction that the jury disregard this aspect of Wood's testimony.
Petitioner pursued this claim in his post-conviction appeal. In concluding Petitioner's
trial counsel did not provide ineffective assistance in handling Wood's testimony and the
prosecutor's argument related to that testimony, the Missouri Court of Appeals addressed
each of Petitioner's contentions individually. That court concluded that trial counsel's failure
to file a motion in limine did not prejudice Petitioner because such a motion, even when
granted, does not conclusively bar the introduction of the challenged evidence; that
Petitioner's trial attorney could not be ineffective for unsuccessfully objecting when the
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prosecutor asked Wood whether she believed Victim was coached; and that Petitioner's trial
attorney could not be ineffective for failing to make a non-meritorious objection to the
prosecutor's reference, in closing argument, to Wood's testimony about coaching, because
a prosecutor has wide latitude in making closing argument and may properly comment on
and make reasonable inferences from matters in evidence, such as Wood's opinion that
Victim was not coached.

(Mem. Supplementing Order Affirming J. Pursuant to Rule

84.16(b), dated Sept. 14, 2010, Resp'ts Ex. F, at 8-9.)
Additionally, the Missouri Court of Appeals found there was "overwhelming
evidence" of Petitioner's guilt, so Petitioner was not able to establish that he "was prejudiced
by . . . Wood's testimony, on direct and cross-examination, that Victim did not appear to have
been coached." Id. at 9. In particular, the state appellate court pointed out that
Victim made several consistent out-of-court disclosures about the abuse, and
her disclosures exhibited advanced sexual knowledge for a child of her age.
For example, Victim said that [Petitioner] put his penis in her mouth and
"water" came out; [Petitioner] hurt her vagina and anus; and [Petitioner] put
"grease" on her vagina and anus before penetrating them. Additionally,
[Petitioner] made incriminating statements to police. Although he did not
confess to the crimes charged, he admitted to having sex and masturbating in
the same bed as Victim. He also told police he had touched Victim's thighs,
legs, and buttocks with his erect penis and that he had ejaculated on Victim.
Id.
Finally, the state court of appeals concluded that Wood's challenged testimony did not
prejudice Petitioner "because it was cumulative to other evidence admitted at trial," such as
Patten's similar opinion testimony and the testimony of Officer Connell that Victim "did not

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appear to be receiving direction, either verbal or nonverbal, from her mother" during his
conversation with Victim. Id. at 10.
Having reviewed the record, this Court concludes the state appellate court did not
incorrectly or unreasonably apply Strickland in denying Petitioner's ineffective assistance
of counsel claim regarding either the Wood testimony about coaching of the Victim or the
prosecutor's argument relating to that testimony. Upon review of the record, the Court
concludes, as did the state appellate court, that overwhelming evidence of Petitioner's guilt
of the attempted statutory rape and attempted statutory sodomy offenses exists. Petitioner
has not provided clear and convincing evidence to rebut any of the factual determinations
made by the state courts pertaining to these issues; and the state courts' factual findings on
this ineffective assistance of counsel claim are reasonable in light of the evidence presented.
In his reply, Petitioner contends that ascertaining overwhelming evidence of his guilt
exists does not satisfy the prejudice standard applicable to an ineffective assistance of
counsel claim. This Court disagrees. A federal habeas court must consider the totality of the
evidence in deciding whether or not prejudice for an ineffective assistance of counsel claim
exists. Kimmelman, 477 U.S. at 377; Kemna, 590 F.3d at 596; accord Morales v. Ault,
476 F.3d 545, 553 (8th Cir. 2007) (overwhelming evidence of guilt can "overc[o]me any trial
defects affected by" a petitioner's attorney); Odem, 382 F.3d at 851-52.(overwhelming
evidence of guilt can result in a conclusion that Strickland's prejudice element is not
fulfilled).

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Petitioner also urges that he was prejudiced because the State's questioning of Wood
"invaded the province of the jury by demanding that [she] make a determination of credibility
of [Victim], a duty that resides solely with the Jury." In support of this argument, Petitioner
points to the testimony of Simone, Georgia, and Shantrell that Victim was not alone with
Petitioner and that Simone and Georgia cared for Victim during Victim's stay with Petitioner,
as well as Victim's testimony on cross-examination that Petitioner did not hurt her. As the
post-conviction motion court concluded, Wood was not asked to comment on Victim's
credibility while testifying during trial, but was asked her opinion, based on her experience
and her interview of Victim, about whether or not Victim was coached in conveying the
information about what Petitioner had done to Victim. Wood's testimony did not improperly
invade the province of the jury. Moreover, the jury had under consideration the testimony
of all the witnesses and the responsibility to assess the credibility, weight, and value of the
witnesses' testimony. This Court may not revisit those jury determinations in this federal
habeas proceeding.
Ground three is denied.
For his fourth and final ground, Petitioner urges his trial attorney provided ineffective
assistance of counsel by failing to provide a redacted copy of the video recording of his
police interview that excluded statements about uncharged and prior bad acts. Respondents
point out that Petitioner pursued this claim in his post-conviction appeal; and argue the state
appellate court's denial of the relevant point did not incorrectly or unreasonably apply clearly
established federal law.
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In denying this point on appeal, the state appellate court noted that Petitioner's
attorney had, prior to trial, unsuccessfully moved to exclude the entire video recording, and
had, during trial, successfully objected to several portions of the video recording, which
portions were not played for the jury. (Mem. Supplementing Order Affirming J. Pursuant
to Rule 84.16(b), dated Sept. 14, 2010, Resp'ts Ex. F, at 10.) The Missouri Court of Appeals
pointed out that Petitioner had not identified any portion of the recording that was played for
the jury and should not have been. (Id.) Rather, that court characterized Petitioner's
contention as challenging his attorney's need to object to the challenged portions of the
recording, which, Petitioner argued, left the jury with the impression "that evidence was
being hidden from them." (Id. at 10-11.) The state appellate court found that "'[m]ere
conclusory speculations of prejudice. . . are not considered substantive evidence of counsel's
ineffectiveness.' Weekley . . . , 265 S.W.3d [at] 323 . . . ." (Mem. Supplementing Order
Affirming J. Pursuant to Rule 84.16(b), dated Sept. 14, 2010, Resp'ts Ex. F, at 11.) Finally,
the Missouri Court of Appeals noted that the trial court had instructed the jury to disregard
objected-to matters, and a jury is presumed to know and follow a court's instructions. (Id.)
Having reviewed the record, this Court concludes that the state appellate court did not
incorrectly or unreasonably apply clearly established federal law in rejecting this ineffective
assistance of counsel claim. As the Missouri Court of Appeals found, speculation is
insufficient to establish an attorney's ineffectiveness. Becker v. Luebbers, 578 F.3d 907,
917 (8th Cir. 2009) (there was no unreasonable application of Strickland in the denial of a
habeas petitioner's ineffective assistance of counsel claim that was based on speculative
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results of "different or further cross-examination" of a witness); Hunter v. Bowersox, 172
F.3d 1016, 1024 (8th Cir. 1999) (one of a petitioner's ineffective assistance of counsel claims
was properly rejected upon concluding that it was based on "sheer speculation"); see also
Middleton, 455 F.3d at 854 (a federal habeas claim founded "solely on speculation" was
properly denied); Sargent v. Armontrout, 841 F.2d 220, 226 (8th Cir. 1988) ("When
seeking habeas relief, the burden is on the petitioner to prove that his rights have been
violated. Speculation and conjecture will not satisfy this burden"). This claim relies on
Petitioner's speculation that the jury was adversely affected by his trial attorney's objections
to portions of the video recording of his police interview.
Ground four is denied.
Conclusion
After careful consideration, the undersigned will deny Petitioner's federal habeas
petition because ground two is procedurally barred, and grounds one, three, and four lack
merit.
Accordingly,
IT IS HEREBY ORDERED that Chris Koster, the Attorney General of the State of
Missouri, is ADDED as a Respondent.
IT IS FURTHER ORDERED that the Clerk of the Court shall file and maintain
UNDER SEAL the Legal File (Resp'ts Ex. A [Doc. 9]) from the underlying state criminal
case.

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IT IS FURTHER ORDERED that Petitioner’s petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED.
IT IS FINALLY ORDERED that no certificate of appealability shall issue. 28
U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.
/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 12th day of September, 2014.

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