Short v. Bowersox
Filing
19
MEMORANDUM OPINION: IT IS HEREBY ORDERED that the Petition filed by Petitioner for habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED, in its entirely; Doc. 1 IT IS FURTHER ORDERED that a separate judgement will be entered this same date; IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Petitioner for a certificate of Appealability will be DENIED. Signed by Magistrate Judge Mary Ann L. Medler on 7/19/12. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KYLE M. SHORT,
Petitioner,
vs.
MICHAEL BOWERSOX,
Respondent.
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Case No. 4:11CV1164MLM
MEMORANDUM OPINION
This matter is before the court on the Petition for Writ of Habeas Corpus filed by Petitioner
Kyle M. Short (“Petitioner”) pursuant to 28 U.S.C. § 2254. Doc. 1. Respondent filed a Response
to Order to Show Cause Why a Writ of Habeas Corpus Should Not Be Granted. Doc. 12. Petitioner
filed a Reply to Respondent’s Response. Doc. 17. The parties have consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. 11.
I.
PROCEDURAL HISTORY
Petitioner was charged, by Second Amended Information, with three counts of second-degree
statutory rape, pursuant to Mo. Rev. Stat. § 566.034, in that between September 1, 2006, and
December 16, 2006, in Warren County, Missouri, Petitioner, either alone or with another or others,
had sexual intercourse with L.K. and at the time L.K. was less than seventeen years of age and
Petitioner was twenty-one years of age or older. Petitioner was also charged with one count of victim
tampering, pursuant to Mo. Rev. Stat. § 575.270, in that on or between December 16, 2006, in
Warren County, Petitioner, either alone or with another or others, told another person to contact the
victim, L.K. and such conduct was a substantial step toward the commission of the crime of victim
tampering and was done for the purpose of committing victim tampering. Petitioner was charged as
a persistent offender in that he previously pled guilty to two felonies committed at different times,
which felonies were the felony of statutory rape in the second degree. Resp. Ex. B at 12-13.
Petitioner was tried before a jury on November 8, 2007. Resp. Ex. A, Trial Transcript (“Tr.”).
The Missouri appellate court held that, viewed in the light most favorable to the verdicts, the evidence
at Petitioner’s trial was as follows:1
Defendant became involved with L.K., the victim, in the summer of 2006 through
L.K.’s brother. At that time, Defendant was twenty-two years old and L.K. was
fifteen years old. In the fall of 2006, Defendant and L.K. began a relationship and on
at least three occasion he came to her parents’ house and had sexual intercourse with
her. In late 2006, L.K. decided to end the relationship, but Defendant continued to
call her and come by her home. Defendant continued this behavior until December
14, 2006, when he was arrested for causing a disturbance outside of L.K.’s home.
The following day, Defendant was questioned by police. During the
questioning, Defendant told the police that he knew L.K. was only fifteen years old
an they were just friends. When interrogated later that day, Defendant again stated
that he and L.K. were friends and he thought that she was a beautiful girl. Under
further questioning, he eventually admitted that he had hugged L.K. once, but that
was all. Defendant then explained that he had kissed L.K. once on the lips, but that
1
In proceedings pursuant to 28 U.S.C. § 2254, a “state court's factual findings carry
a presumption of correctness that will be rebutted only by clear and convincing evidence.” Hall v.
Luebbers, 341 F.3d 706, 712 (8th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1); Lomholt v. Iowa,
327 F.3d 748, 752 (8th Cir. 2003)). See also Simmons v. Luebbers, 299 F.3d 929, 942 (8th Cir.
2002). Explicit and implicit findings by state trial and appellate courts are presumed to be correct.
Rushen v. Spain,464 U.S. 114, 120, (1983); Marshall v. Lonberger, 459 U.S. 422, 432 (1983);
Sumner v. Mata, 449 U.S. 539, 545-47, 550 (1981). Additionally, the Eighth Circuit holds that a
habeas petitioner must provide “clear and convincing” evidence “to overcome the presumption of
correctness that the law assigns to” findings of the state courts. Ashker v. Class, 152 F.3d 863,
867 (8th Cir. 1998) (citing 28 U.S.C. § 2254(e)(1); 28 U.S.C. § 2254(d)(2); Smith v. Jones, 923
F.2d 588, 590 (8th Cir. 1991)). See also Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.
1988). The presumption applies to basic, primary or historical facts and the inferences that can
properly be drawn regarding them. See Case v. Mondragon, 887 F.2d 1388, 1393 (10th Cir.
1989) (citing Marshall v. Lonberger, 459 U.S. at 431-32; Cuyler v. Sullivan, 446 U.S. 335,
341-42 (1980)). “Questions of witness credibility are usually considered to be issues of fact.”
Id.(citing Brown v. Allen, 344 U.S. 443, 506 (1953)). Mixed questions of law and fact, however,
are not entitled to a presumption of correctness pursuant to § 2254(d). Cornell v. Nix, 976 F.2d
376, 382 (8th Cir. 1992).
2
was the only contract they had. Detective Scott Schoenfeld told Defendant that he
was going to talk to L.K. about the entire incident the first thing the following day,
December 16, 2006.
During the night of December 15, 2006, Defendant made several collect calls
from jail. When collect calls are made from the Warren County jail, a recorded
warning is given that the all calls will be recorded. Two of the calls were to his
grandmother, Joyce Crow. Defendant asked his grandmother multiple times to tell
his brother, Calvin, to call L.K., and tell her to say that they had done nothing more
than kiss once. When his grandmother asked “[w]hat little friend[,]” Defendant told
her that he “ain’t saying any names on this damn phone, and he [Calvin] knows who
I’m talking about.” He stressed that Calvin had to do it before December 16, 2006,
because “[t]hey’re waiting to talk to her.” While on the phone with Defendant, Ms.
Crow contacted Calvin on another phone, and relayed information to him. Calvin
stated that he had tried to call twice, but that no one would answer the phone, and
that he would try in the morning. Defendant stressed that Calvin needed to contact
L.K. that night because the police would be talking with her the next morning. Calvin
agreed to keep trying and eventually managed to speak to L.K.’s older sister, J.K.
about her sister, L.K., and Defendant. That same night, Defendant called his
grandmother again, who told him that Calvin had reached L.K.’s house, but that they
would not let him talk to her. She told Defendant that Calvin would try again in the
morning; Defendant told her that would be too late, and to have Calvin get somebody
else to call L.K.. Defendant did not refer to L.K. by name during these calls.
Defendant was released from jail on December 16, 2006. Detective
Schoenfeld did not contact L.K. or her family until December 18, 2006, after having
listened to the recordings of Defendant’s collect phone calls from the night of
December 15. He met with L.K., J.K, and their mother that day. L.K. discussed her
relationship with Defendant, and stated that they had engaged in sexual intercourse
at least three times. Detective Schoenfeld had L.K. call Defendant to discuss the
details of their relationship. During the call, Defendant told L.K. to lie about their
relationship, and to tell the police that they had done nothing more than kiss,
otherwise he could go to prison for a long time. Detective Schoenfeld’s attempt to
record that conversation, which he could hear, was only partially successful, capturing
only the voices of L.K. and J.K., but not that of Defendant. L.K.’s subsequent phone
conversation with Defendant was successfully recorded. In that conversation,
Defendant again told L.K. to tell the police that they did nothing more than kiss, told
her to lie about their relationship, and pressured her by asking if she wanted him to
go to prison, by telling her that she would do it if she loved him, by threatening to kill
himself, and by promising to leave her alone. Defendant was arrested thereafter.
Resp. Ex. H at 2-4.
Petitioner was found guilty as charged. Tr. 187-88. The trial court found that Petitioner was
a persistent offender and sentenced him to ten years imprisonment for each of the statutory rape
3
convictions, with these sentences to run concurrent with one another, and ten years imprisonment for
the attempted tampering conviction, with that sentence to run consecutive to the other sentences.
Resp. Ex. B at 46-47. Petitioner filed a direct appeal with the Missouri appellate court. Resp. Ex.
F. By decision, dated January 20, 2009, the Missouri appellate court affirmed Petitioner’s convictions
and sentences. Resp. Ex. H.
On April 15, 2009, Petitioner filed a pro se post-conviction relief motion pursuant to Rule
29.15. Resp. Ex. K at 6-38. Counsel was appointed on May 12, 2009, and filed an amended motion.
Resp. Ex. at K at 39-103. The motion court denied Petitioner’s post-conviction relief motion. Resp.
Ex. at K at 106-23. Petitioner filed an appeal with the Missouri appellate court of the motion court’s
decision. Resp. Ex. L.
By decision, dated March 22, 2011, the Missouri appellate court denied
Petitioner relief. Resp. Ex. N. On April 14, 2011, the mandate issued on the appeal of Petitioner’s
post-conviction relief motion. Resp. Ex. O.
Petitioner filed his § 2254 Petition in which he raises the following issues:
(1) The State failed to produce sufficient evidence to support the charge of attempted
victim tampering, and
(2) Petitioner received ineffective assistance of counsel because counsel failed to call
his grandmother, Joyce Crow, as a witness.2
Doc. 1.
III.
EXHAUSTION, PROCEDURAL DEFAULT AND TIMELINESS ANALYSIS
2
Petitioner also sets forth fifteen other grounds for habeas relief. As discussed
below, Petitioner acknowledges that he procedurally defaulted these grounds. Further, as found
below, Petitioner has not stated cause and prejudice to excuse his procedural default. As such,
the court need not address the substance of Petitioner’s additional grounds for relief.
4
To preserve issues for federal habeas review, a state prisoner must fairly present his or her
claims to state courts during direct appeal or in post-conviction proceedings. Sweet v. Delo, 125 F.3d
1144, 1149 (8th Cir. 1997). Failure to raise a claim in a post-conviction appeal is an abandonment
of a claim. Id. at 1150 (citing Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996)). A state prisoner
who fails “‘to follow applicable state procedural rules [for] raising the claims’ (citation omitted) . .
. , is procedurally barred from raising them in a federal habeas action, regardless of whether he has
exhausted his state-court remedies.” Id. at 1151 (citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). “[A] prisoner must ‘fairly present’ not only the facts, but also the substance of his federal
habeas corpus claim.” Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc) (citation
omitted). “[F]airly present” means that state prisoners are “required to ‘refer to a specific federal
constitutional right, a particular constitutional provision, a federal constitutional case, or a state case
raising a pertinent federal constitutional issue.’” Id. at 411-12. A state-law claim which is raised in
state court which “is merely similar to the federal habeas claim is insufficient to satisfy the fairly
presented requirement.” Id. at 412.
The United States Supreme Court holds that a state prisoner can overcome procedural default
if he or she can demonstrate cause and prejudice for the procedural default. Dretke v. Haley, 541 U.S.
386, 388-89 (2004). See also Coleman, 501 U.S. at 750 (holding that a state habeas petitioner can
overcome procedural default by demonstrating cause for the default and actual prejudice or
demonstrate that default will result in a fundamental miscarriage-of-justice; Battle v. Delo, 19 F.3d
1547, 1552 (8th Cir. 1994). The United States Supreme Court has recently held that because the
“cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice”
the Court has “recognized a narrow exception to the cause requirement where a constitutional
violation has ‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive
5
offense.” Dretke, 541 U.S. at 393 (citing Murray v. Carrier, 477 U.S. 478, 496 (1986); Schlup v.
Delo, 513 U.S. 298 (1995)). “[A] habeas petitioner who wishes to have a procedurally defaulted
claim evaluated on its merits ‘must show by clear and convincing evidence that but for a
constitutional error, no reasonable juror would have found the petitioner [guilty] under the applicable
state law.’” McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir. 1992 ) (citation omitted). Actual
innocence is required to meet the miscarriage-of-justice exception. See Sweet, 125 F.3d at 1152
(citing Schlup, 513 U.S. at 316). The Supreme Court, however, has limited the application of the
actual innocence exception to the capital sentencing context. See Dretke, 541 U.S. at 393. In Dretke,
the Court declined to extend the actual innocence exception to procedural default of constitutional
claims challenging noncapital sentencing error. Rather, the Court held “that a federal court faced with
allegations of actual innocence, whether of the sentence or of the crime charged, must first address
all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural
default.” Id. at 393-94.
In any case, a “‘bare, conclusory assertion’ that a petitioner is actually innocent is insufficient
to excuse a procedural default.” Sweet, 125 F.3d at 1152 n.9 (citing Weeks v. Bowersox, 119 F.3d
1342, 1352-55 (8th Cir. 1997)). To meet the requisite standard for a probability of innocence a
habeas petitioner must show that “it is more likely than not that no reasonable juror would have
convicted him in light of new evidence.” Schlup, 513 U.S. at 327. (emphasis added). Evidence is
“new” if it was “not available at trial and could not have been discoverable earlier through the
exercise of due diligence.” Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001).
It has been held that “novel circumstances and arguments” may constitute cause to excuse
procedural default. McKinnon v. Lockhart, 921 F.2d 830, 833-34 (8th Cir. 1990). “[T]he Supreme
Court [has] recognized that cause may exist when the claim raised is so novel that there was no
6
reasonable basis to have asserted it at the time of a petitioner's state appeals.” Id. at 833(citing Reed
v. Ross, 468 U.S. 1, 16 (1984)).
However, “[if] the ‘tools were available’ for a petitioner to
construct the legal argument at the time of the state appeals process, then the claim cannot be said
to be so novel as to constitute cause for failing to raise it earlier.” Id. (citing Leggins v. Lockhart, 822
F.2d 764, 766 (8th Cir.1987)).
In regard to the "prejudice" component of "cause and prejudice," as discussed above, "actual
prejudice" is required to overcome the procedural bar. Zinzer v. Iowa, 60 F.3d 1296, 1299 (8th Cir.
1995). “Prejudice, within the meaning of [the ineffective assistance of counsel standard of Strickland
v. Washington, 466 U.S. 668 (1984)] occurs when appellate counsel’s deficient performance renders
the result of the direct appeal unreliable or fundamentally unfair.” Id. The Eighth Circuit, however,
holds that the “‘prejudice’ component of ‘cause and prejudice’ [necessary to excuse procedural
default] is analytically distinct from the Strickland prejudice.” Id. at 1299 n.7. The “‘actual prejudice’
required to overcome the procedural bar must be a higher standard than the Strickland prejudice
required to establish the underlying claim for ineffective assistance of counsel.” Id. (citing United
States v. Frady, 456 U.S. 152, 165-68 (1982) (holding that to obtain habeas relief on a defaulted
claim, a petitioner must clear a significantly higher hurdle than would exist on direct appeal).
Additionally, § 2244(d)(1) establishes a 1-year limitation period on petitions filed pursuant
to § 2254.
Petitioner raised the issues of Grounds 1 and 2 before the Missouri appellate court. As such,
the court finds that Petitioner has not procedurally defaulted Grounds 1 and 2. Petitioner
acknowledges that he did not raise before the Missouri appellate court the additional issues which
he designates as Grounds 3-16 in his §2254 Petition but states that his procedural default of these
Grounds should be excused. As the basis for this argument, Petitioner contends that he asked his
7
post-conviction appellate counsel to raise, on appeal, all issues which were raised before the motion
court but that appellate counsel did not do so. Doc. 4 at 18-19. In his Reply, Petitioner extensively
argues that the Missouri Public Defenders Office is understaffed and that his “post-conviction
appellate counsel was [] forced into creating the procedural bars on Petitioner’s remaining claims.”
Doc. 17 at 26.
The Eighth Circuit has made it clear that “[e]rrors made by PCR counsel are not actionable
as cause to excuse procedural defaults for habeas purposes.” Chambers v. Bowersox, 157 F.3d 560,
566 n. 6 (8th Cir.1998); Clemmons v. Delo, 124 F.3d 944, 947 (8th Cir.1997). “‘[A]ttorney error
that results in a procedural default’ is not cause [to excuse procedural default] unless the attorney’s
performance was constitutionally deficient.” Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005)
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))). A habeas petitioner, therefore, cannot rely
on the ineffectiveness of his post-conviction counsel in failing to raise in State court the claims he
seeks to assert in a § 2254 petition because “there is no Sixth Amendment right to the effective
assistance of post-conviction counsel.” Id. (construing Coleman v. Thompson, 501 U.S. 722, 752-54
(1991)).3
3
Petitioner cites Simmons v. Lockhart, 915 F.2d 372, 376 (8th Cir. 1990), in
support of his argument that ineffective assistance of post-conviction relief counsel can be cause
and prejudice to excuse procedural default. Doc. 17 at 11. As explained by the court in Farmer v.
Iowa, 153 F. Supp.2d 1034, 101039-40 (N.D. Iowa 2001), in response to such an argument:
[T]he Eighth Circuit Court of Appeals has since questioned the continued viability of
this part of the opinion in Simmons in light of Coleman v. Thompson, 501 U.S. 722,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). See Grubbs v. Delo, 948 F.2d 1459, 1466
(8th Cir.) ... . Moreover, the Eighth Circuit Court of Appeals has expressly held since
Simmons that “any deficiencies in [a post-conviction relief] lawyer's performance
could not have constituted cause for ... purposes” of avoiding a procedural default.
Burns v. Gammon, 173 F.3d 1089, 1092 (8th Cir.1999); Cornell v. Nix, 976 F.2d
376, 381 (8th Cir.1992) (“In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546,
2566, 115 L.Ed.2d 640 (1991), the United States Supreme Court held that there is
no cognizable habeas claim for ineffective assistance of postconviction counsel
8
Moreover, the “‘winnowing’ of which issues to bring on appeal is a ‘hallmark of effective
advocacy;’ counsel is not required to raise every conceivable issue on appeal.” Garrett v. United
States, 78 F.3d 1296, 1306 (8th Cir. 1996). The Eighth Circuit has stated that “‘[l]aw is an art, not
a science, and many questions that attorneys must decide are questions of judgment and degree.
Among the most difficult are decisions as to what issues to press on appeal. . . . It is possible to
criticize [an attorney’s] choice in hindsight.’” Id. (quoting Simmons v. Lockart, 915 F.2d 372, 275
(8thCir. 1990)). The court finds, therefore, that Petitioner has not suggested cause and/or prejudice
to excuse his default of Grounds 3-16. As such, the court finds that Petitioner should be denied
habeas relief on Grounds 3-16 on the basis of procedural default. Additionally, the court finds that
Petitioner’s § 2254 Petition was timely filed.
III.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (“AEDPA”),
applies to all petitions for habeas relief filed by state prisoners after this statute’s effective date of
April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas review
pursuant to § 2254 a federal court is limited to deciding whether decisions of state courts were
because no constitutional right to counsel exists in postconviction proceedings. Thus,
postconviction counsel's failure to more fully investigate the potential of Cross's
recantation cannot constitute ‘cause.’ ”) ... . Even if the part of the opinion in
Simmons upon which Farmer relies is still “good law,” Farmer has made no more than
conclusory assertions of ineffective assistance of post-conviction relief counsel,
without ever attempting to demonstrate that his claim of ineffective assistance of
post-conviction relief counsel satisfies the two prongs of the Strickland analysis.” ...
. Therefore, Farmer's third objection must also be overruled.
As such, Simmons, 915 F.2d at 376, does not support Petitioner’s position that his procedural
default of Grounds 3-16 should be excused because of ineffective assistance of post-conviction relief
counsel.
9
“contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). “‘Federal law, as determined by the
Supreme Court,’ refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions.’” Evenstad v. Carlson, 470 F.3d 777, 782-83 (8th Cir. 2006) (quoting Williams v. Taylor,
529 U.S. 362, 412 (2000)). To obtain habeas relief, a habeas petitioner must be able to point to the
Supreme Court precedent which he thinks the state courts acted contrary to or applied unreasonably.
Id. at 783 (citing Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006); Owsley v. Bowersox, 234
F.3d 1055, 1057 (8th Cir. 2000)). Thus, where there is no federal law on a point raised by a habeas
petitioner, a federal court cannot conclude either that a state court decision is “‘contrary to, or
involved an unreasonable application of, clearly established Federal law’ under 28 U.S.C.
§2254(d)(1).” Id. at 784. “When federal circuits disagree as to a point of law, the law cannot be
considered ‘clearly established’ under 28 U.S.C. § 2254(d)(1). Id. at 783 (citing Tunstall v.
Hopkins, 306 F.3d 601, 611 (8th Cir. 2002)). See also Carter v. Kemna, 255 F.3d 589, 592 (8th
Cir. 2001) (holding that in the absence of controlling Supreme Court precedent, a federal court
cannot reverse a state court decision even though it believes the state court’s decision is “possibly
incorrect”).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court set forth the
requirements for federal courts to grant writs of habeas corpus to state prisoners under § 2254. The
Court held that Ҥ2254(d)(1) places a new constraint on the power of a federal habeas court to grant
a state prisoner’s application for writ of habeas corpus with respect to claims adjudicated on the
merits in the state court.” Id. at 412. The Court further held that the writ of habeas corpus may
issue only if the state-court adjudication resulted in a decision that:
(1) “was contrary to . . . clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2)
10
“involved an unreasonable application of . . . clearly established
Federal Law, as determined by the Supreme Court of the United
States.” Under the “contrary to” clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state court decides
a case differently than this Court has on a set of materially
indistinguishable facts. Under the“unreasonable application”clause, a
federal habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 412-13.
Williams further holds that the writ will not issue merely because the federal court concludes
that the relevant state court decision erroneously or incorrectly applied clearly established federal
law. See id. at 411. “‘Rather [the] application [by the state-court] must also be unreasonable.’”
Copeland v. Washington, 232 F.3d 969, 973 (8th Cir. 2000) (quoting Williams, 529 U.S. at 411).
See also Siers v. Weber, 259 F.3d 969, 973 (8th Cir. 2001).
The Court further explained in Williams that for a state-court decision to satisfy the “contrary
to” prong of § 2254(d)(1), the state court must apply a rule that “contradicts the governing law as
set forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different
from [the Court’s] precedent.” 529 U.S. at 406. See also Price v. Vincent, 538 U.S. 634, 640
(2003). It is not necessary for a state-court decision to cite, or even be aware of, applicable federal
law, “so long as neither the reasoning nor the result of the state-court decision contradicts” federal
law. Early v. Packer, 537 U.S. 3, 8 (2002).
For a state court decision to satisfy the “unreasonable application” prong of § 2254(d)(1), the
state court decision must “identif[y] the correct governing legal principle from [the Supreme] Court's
decisions but unreasonably appl[y] that principle to the facts of [a] prisoner's case.” Williams, 529
11
U.S. at 413. See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001). Upon explaining § 2254's
legal standard, the Supreme Court held in Penry that “even if the federal habeas court concludes that
the state court decision applied clearly established federal law incorrectly, relief is appropriate only
if that application is also objectively unreasonable.” Id. at 793 (citing Williams, 529 U.S. at 410-11).
The Eighth Circuit has held that “[t]o the extent that ‘inferior’ federal courts have decided factually
similar cases, reference to those decisions is appropriate in assessing the reasonableness of the state
court’s resolution of the disputed issue.” Atley v. Ault, 191 F.3d 865, 871(8th Cir. 1999).
Additionally, § 2254(d)(2) provides that an application for writ of habeas corpus should not
be granted unless the adjudication of the claim “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.” Further, pursuant to § 2254(e)(1), “[a] state court’s determination on the merits of
a factual issue is entitled to a presumption of correctness.” Boyd v. Minnesota, 274 F.3d 497, 500
(8th Cir. 2001). The state court’s factual determinations “must be rebutted by clear and convincing
evidence.” King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001). For purposes of federal habeas
relief, the state court decision involves an unreasonable determination of the facts in light of the
evidence presented in state court proceedings “only if it is shown by clear and convincing evidence
that the state court's presumptively correct factual findings do not enjoy support in the record.”
Lomholt v. Iowa, 327 F.3d 748, 752 (8th Cir. 2003). See also Jones v. Luebbers, 359 F.3d 1005,
1011 (8th Cir. 2004) (“[A] state court decision involves ‘an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it
is shown that the state court’s presumptively correct factual findings do not enjoy support in the
record. 28 U.S.C. § 2254(e)(1).”).
12
The United States Supreme Court has defined the circumstances under which a state court
reasonably applied federal law as follows:
At the same time, the range of reasonable judgment can depend in part on the
nature of the relevant rule. If a legal rule is specific, the range may be narrow.
Applications of the rule may be plainly correct or incorrect. Other rules are more
general, and their meaning must emerge in application over the course of time.
Applying a general standard to a specific case can demand a substantial element of
judgment. As a result, evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the more leeway courts
have in reaching outcomes in case by case determinations. Cf. Wright v. West, 505
U.S. 277, 308-309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (KENNEDY, J.,
concurring in judgment).
Yarborough v. Alvarado, 541 U.S. 652, 644 (2004).
IV.
DISCUSSION
Ground 1 - The State failed to produce sufficient evidence to support the charge of attempted
victim tampering:
In support of Ground 1, Petitioner contends that his asking his grandmother to tell Petitioner’s
brother, Calvin, to speak with L.K. and tell her not to say anything about what transpired other than
that they just kissed was not a substantial step towards committing the crime of victim tampering.
Petitioner further states that he was twenty-two and L.K. was fifteen when then met; that she was
a willing participant; and that his statement to his grandmother was “too ambiguous” to prove that
L.K. was his “little friend.” Doc. 4 at 2-3, 7-8. Petitioner also argues that he “never actually stated
who he wanted his brother to call”; that he never called the victim; that the victim called him; and
that “the only time that Petitioner attempted to persuade the victim, was when the police instigated
the attempt.” Doc. 17 at 1-2.
Upon addressing the issue of Ground 1, the Missouri appellate court held:
In reviewing a sufficiency of the evidence claim, the Court determines whether
sufficient evidence allows a reasonable trier of fact to find guilt. State v. Ecford, 239
13
S.W.3d 125, 127 (Mo App. 2007). This Court views the evidence and the inferences
therefrom in the light most favorable to the verdict, disregarding all evidence and
inferences to the contrary. Id.
Section 575.270.1 provides that:
A person commits the crime of “victim tampering” if, with purpose to
do so, he prevents or dissuades or attempts to prevent or dissuade any
person who has been a victim of any crime or a person who is acting
on behalf of any such victim from:
(1) Making any report of such victimization to any peace officer, or
state, local or federal law enforcement officer or prosecuting agency or
to any judge;
(2) Arresting or causing or seeking the arrest of any person in
connection with such victimization.
Under section 564.011.1, a “substantial step” toward committing a crime is “conduct
which is strongly corroborative of the firmness of the actor’s purpose to complete the
commission of the offense.”
Considering the surrounding circumstances relating to the telephone calls from
Defendant to his grandmother on the night of December 15, 2006, which include his
brother Calvin actually contacting J.K. that night after the first phone call from
Defendant, as well as the substance of those telephone calls, it is a reasonable inference
Defendant was trying to have Calvin persuade L.K. to lie about the nature and extent
of their sexual relationship. Further, given the subsequent phone conversation between
Defendant and L.K., it is readily apparent that the State could have charged him with
actual victim tampering, not merely attempted victim tampering. Commission of the
actual crime certainly is “conduct which is strongly corroborative of the firmness of the
actor’s purpose to complete the commission of the offense.” There was sufficient
evidence from which jurors could find Defendant guilty beyond a reasonable doubt of
the crime of attempted victim tampering. Point denied.
Resp. Ex. H at 5-6.
Pursuant to Williams, 529 U.S. 362, the court will consider federal law applicable to the issue
raised in Petitioner’s Ground 1. The United States Supreme Court stated in Wright v. West, that
“a claim that evidence is insufficient to support a conviction as a matter of due process depends on
‘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.’” 505 U.S.
14
277, 283-84 (1992) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
See also Scott v. Jones, 915 F.2d 1188, 1190 (8th Cir. 1990); Haymon v. Higgins, 846 F.2d 1145,
1146 (8th Cir. 1988). This standard “gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the
basic facts to ultimate facts.” Jackson, 443 U.S. at 319. See also Whitehead v. Dormire, 340 F.3d
532, 536 (8th Cir. 2003) (“We must presume that the trier of fact resolved all conflicting inferences
in the record in favor of the state, and we must defer to that resolution.”) (internal citations omitted);
Weston v. Dormire, 272 F.3d 1109, 1111 (8th Cir. 2001) (“In determining the sufficiency of the
evidence in habeas cases under 28 U.S.C. § 2254, we view the evidence in the light most favorable
to the prosecution and decide whether any rational jury could have found, beyond a reasonable
doubt, all of the elements of the crime.”) (citing Jackson, 443 U.S. at 319, 321, 324; Loeblein v.
Dormire, 229 F.3d 724, 726 (8th Cir. 2000)).
First, the standard applied by the Missouri appellate court for determining the sufficiency of
the evidence is identical to that established by the Supreme Court in Jackson, 443 U.S. at 319.
Moreover, in regard to the elements of the crime of attempted victim tampering, as set forth by the
Missouri appellate court, the evidence was that Petitioner called his grandmother and told her to tell
his brother to tell the victim not to say that they had done anything other than kissed; that Petitioner
said that his brother had to do this “before tomorrow” because that was when the police were going
to interview the victim; that Petitioner reiterated those instructions four times; that Petitioner called
the victim himself and told her to lie about their relationship; that, to get the victim to lie, Petitioner
told her that he would go to jail for twenty-five or thirty years, that if she loved him, she would do
this for him, and that he would leave her alone after the criminal case ended; and that he told the
victim that he would kill himself if she did not lie. As stated by the Missouri appellate court, a
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rational trier of fact could find Petitioner guilty of the elements of the crime of which he was
convicted. As such, the court finds that the decision of the Missouri appellate court, in regard to
the issue of Petitioner’s Ground 1 is not contrary to federal law and that it is a reasonable application
of federal law. See Williams, 529 U.S. 362; Wright, 505 U.S. 277, 283-84; Jackson, 443 U.S. at
319, 321, 324. Additionally, the Missouri appellate court reasonably applied federal law to the facts
of Petitioner’s case. The court finds, therefore, that Petitioner’s Ground 1 is without merit and that
habeas relief on its basis should be denied.
Ground 2 - Petitioner received ineffective assistance of counsel because counsel failed to call
his grandmother, Joyce Crow, as a witness:
In support of Ground 2 Petitioner contends that had counsel called Ms. Crow as a witness at
trial her testimony would have contradicted the State’s evidence the he was aware of L.K.’s age and
would have established that L.K. told both Ms. Crow and Petitioner that she was seventeen. Doc.
4 at 9. Petitioner further argues that, had counsel called Ms. Crow, the outcome of his trial would
have been different. Doc. 17 at 5. He also contends that counsel’s decision not to call Ms. Crow
“cannot be held trial strategy, because he in fact, did not have any strategy. He failed to present any
evidence to support Petitioner’s innocence.” Doc. 17 at 8.
Upon addressing the issue of Petitioner’s Ground 2, the Missouri appellate court considered
that Petitioner contended that, had his grandmother, Joyce Crow, been called to testify she would
have testified that “during the phone conversation between Crow and the victim, the victim told
Crow she was seventeen years old.” Resp. Ex. N at 2. The Missouri appellate court further held:
Movant alleges that, had counsel called Crow as a witness, there is a reasonable
probability that the outcome of the trial would have been different. We disagree.
... . To prevail on a claim of ineffective assistance, the movant must show that
counsel failed to demonstrate the customary skill and diligence of a reasonably
competent attorney in the same or similar circumstances, and that the movant was
thereby prejudiced. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997).
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When a movant alleges trial counsel was ineffective for failing to call a witness,
four factors must be demonstrated including: (1) that counsel knew or should have
known of the witness; (2) that the witness could have been located with reasonable
investigation; (3) that the witness would have testified if called; and (3) that the
testimony would have provided a viable defense. Williams v. State, 168 S.W.3d 433,
441 (Mo. banc 2005). The selection of witnesses for trail is a question of trial strategy.
Bucklew v. State, 38 S.W.3d 395, 398 (Mo. banc 2001). It is virtually
unchallengeable. Rousan v. State, 48 S.W. 576, 582 (Mo. banc 2001). Reasonable
choice of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve
as a basis for a claim of ineffective assistance of counsel. Anderson v. State, 196
S.W.3d 28, 32 (Mo. banc 2006). The burden is on the movant to overcome the
presumption that the decision to call a witness was not reasonable trial strategy.
Bucklew, 38 S.W.3d 395 at 398. In order to satisfy the second prong of prejudice, the
movant must show that there is a reasonable probability that, but for counsel’s error,
the result of the proceedings would have been different. Rousan, 48 S.W.3d 576 at
582.
Here, the motion court concluded that Crow’s testimony would not have been
credible and likely would have been hurtful to the defense. Similar to Rousan, where
the witness had a prior conviction harming his credibility, here Crow was implicated
in carrying out part of the crime with Movant, victim tampering. Id. at 584. Movant
contacted Crow from jail and asked her to contact his brother to help him reach the
victim and tell her to lie to police. Crow then made the call to Movant’s brother. This,
along with familial bias, seriously affected Crow’s credibility at trial. Even more,
Crow’s testimony would not have established that Movant believed victim to be
seventeen years-old, only that Crow believed victim to be seventeen years-old. Crow’s
belief as to the victim’s age does not provide Movant with a viable defense. Thus, it
was sound trial strategy by Counsel not to call Crow as a witness.
Further, Movant was not prejudiced by the decision [not] to call Crow at trial.
The motion court found that Crow was not a credible witness. When the motion court
finds that a witness lacks credibility, the movant has failed to prove by a preponderance
of the evidence that he was prejudices by ineffective assistance of counsel.
Montgomery v. State, 631 S.W.2d 671, 672 (Mo. App. E.D. 1982). Thus, because
the motion court found Crow incredible, her absence did not prejudice the trial.
Movant has failed to show that Crow would have provided a viable defense.
Williams, 168 S.W.3d 433 at 411. Further, Movant failed to show that there was a
reasonable probability Crow’s testimony would have resulted in a different outcome
at trial. Rousan, 48 S.W.3d 576 at 582. Point denied.
Resp. Ex. N at 2-4.
Pursuant to Williams, 529 U.S. at 412-13, the court will consider federal law applicable to
Petitioner’s Ground 2. Federal law provides that to prove ineffective assistance of counsel, a habeas
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petitioner must show that: “(1) his counsel so grievously erred as to not function as the counsel
guaranteed by the Sixth Amendment; and (2) his counsel’s deficient performance prejudiced his
defense.” Auman v. United States, 67 F.3d 157, 162 (8th Cir. 1995) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). The "performance" prong of Strickland requires a showing
that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466
U.S. at 688. Counsel is “strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To overcome
this presumption, a petitioner must prove that, “in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally competent assistance.” Id.
Even if a petitioner satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 697. To do so, a petitioner must prove that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 669. The court is not required to “address both
components of the [effective assistance of counsel] inquiry if [a petitioner] makes an insufficient
showing on one [component].” Id. at 697.
The Supreme Court holds that judicial scrutiny of counsel’s performance must be highly
deferential and that trial counsel’s performance must not be judged in hindsight. Strickland, 466 U.S.
at 688-89. Counsel must exercise reasonable diligence to produce exculpatory evidence. Kenley v.
Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991). The Eighth Circuit has stated that “[d]ecisions
relating to witness selection are normally left to counsel’s judgment, and ‘this judgment will not be
second-guessed by hindsight.’” Hanes v. Dormire, 240 F.3d 694, 698 (8th Cir. 2001) (citations
omitted). Where some potential witnesses’ testimony might have been helpful in rebutting or
clarifying evidence, in order to establish a constitutional violation a habeas petitioner must establish
18
that the “proffered testimony was so important as to put counsel’s failure to consult with or call [
] witnesses outside the wide range of strategic choices that counsel is afforded.” Id. The decision
whether to call witnesses may be a matter of trial strategy. Hall v. Lubbers, 296 F.3d 685, 694 (8th
Cir. 2002); Battle v. Delo, 19 F.3d 1547,1556 (8th Cir. 1994). “Strategic decisions ‘made after
thorough investigation of law and facts ... are virtually unchallengeable,’ even if that decision later
proves unwise.” Strickland, 466 U.S. at 590.
Upon considering Petitioner’s claim of ineffective assistance of counsel, the Missouri appellate
court considered and applied the two-pronged test set forth in Strickland. Specifically, in regard to
counsel’s failing to call Ms. Crow, consistent with federal law, the Missouri appellate court
considered that the motion court correctly concluded that she would not have been a credible
witness; that she would not have established that Petitioner believed the victim was seventeen; that
Ms. Crow’s testimony would not have provided Petitioner with a viable defense; and that, therefore,
it was sound trial strategy not to call her as a witness. Further, consistent with federal law, the
Missouri appellate court considered that Petitioner failed to establish that he was prejudiced by
counsel’s alleged ineffectiveness. See Strickland, 466 U.S. at 687-88, 690; Hall, 296 F.3at 694;
Hanes, 240 F.3d at 698. As such, the court finds that the decision of the Missouri appellate court,
in regard to Petitioner’s Ground 2, is not contrary to federal law and that it is a reasonable
application of federal law. See Williams, 529 U.S. at 412-13. Additionally, the Missouri appellate
court reasonably applied federal law to the facts of Petitioner’s case. The court finds, therefore, that
Ground 2 is without merit and that habeas relief on its basis should be denied.
V.
CONCLUSION
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For the reasons stated above, the court finds that Petitioner’s Grounds 1 and 2 are without
merit and that he has procedurally defaulted Ground 3-16. As such, Petitioner's § 2254 Petition for
habeas relief should be denied in its entirety.
The undersigned further finds that the grounds asserted by Petitioner do not give rise to a any
issues of constitutional magnitude. Because Petitioner has made no showing of a denial of a
constitutional right, Petitioner will not be granted a certificate of appealability in this matter. See
Tiedeman v Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that the Petition filed by Petitioner for habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED, in its entirely; Doc. 1
IT IS FURTHER ORDERED that a separate judgement will be entered this same date;
IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Petitioner
for a certificate of Appealability will be DENIED.
Dated this 19th day of July, 2012.
/s/Mary Ann L Medler
MARY ANN L. MEDLER
UNITED STATES MAGISTRATE JUDGE
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