Byrd v. Dormire

Filing 22

MEMORANDUM AND ORDER - For the reasons discussed above, the Court concludes that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly esta blished federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir 1997). Signed by District Judge Carol E. Jackson on 5/13/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD A. BYRD,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
DAVE DORMIRE,
Respondent.

Case No. 4:11-CV-1191 (CEJ)

MEMORANDUM
This matter is before the Court on the petition of Donald A. Byrd for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
I.

Procedural Background

Petitioner Donald Byrd is presently incarcerated at the Jefferson City Correctional
Center pursuant to the sentence and judgment of the Circuit Court of Pemiscot County,
Missouri. On February 8, 2007, a jury found petitioner guilty of four counts of firstdegree statutory sodomy, in violation of Mo.Rev.Stat. § 566.062.1 The trial court
sentenced petitioner as a prior and persistent offender to concurrent 30-year terms of
imprisonment. Judgment, Resp. Ex. A. at 53-54. Petitioner appealed his conviction
on Count II and, on November 4, 2008, the Missouri Court of Appeals affirmed. State
v. Byrd, No. 28417 (Mo. Ct. App. Nov. 4, 2008). Resp. Ex. D.
Petitioner filed a timely motion for post-conviction relief pursuant to Missouri
Supreme Court Rule 29.15, which the post-conviction court denied following an

1

Petitioner was charged with committing deviate sexual intercourse with a
person under the age of 12 on more than one occasion between September 2002 and
March 2005, by placing his penis in S.W.’s mouth (Count I), placing his mouth on her
vagina (Count II); touching her hand with his penis (Count III); and touching her
vagina with his hand (Count IV).

evidentiary hearing. On December 30, 2010, the Missouri Court of Appeals affirmed
the denial of post-conviction relief. Byrd v. State, 329 S.W.3d 718 (Mo. Ct. App.
2010). On July 7, 2011, petitioner timely filed this petition for relief pursuant to 28
U.S.C. § 2254.
II.

Factual Background

On March 19, 2005, 10-year-old S.W. told her mother (“Ms. Byrd”) that she had
been molested by petitioner, her stepfather with whom she had lived since she was
two months old.

Ms. Byrd called the police. Ann Cutler, an investigator with the

Children’s Division of the Missouri Department of Social Services, interviewed S.W.
later that day. S.W. told Ms. Cutler that she had been molested by petitioner on three
or four occasions. Tr. 282-83. She also said that petitioner told her that she would
be sent away if she told anyone. Tr. 284.
Ms. Cutler scheduled a forensic examination to take place on March 28, 2005.
In the meantime, Ms. Byrd and her children went to stay with Jessica Smith, Ms. Byrd’s
cousin, who was married to petitioner’s brother. Ms. Smith testified at trial that she
had a private conversation with S.W. in which she told her that she needed to “tell the
truth” so that her mother would feel better. Tr. 393-95. After this conversation, Ms.
Smith told Ms. Byrd that S.W. said petitioner had not molested her. Tr. 263. Ms.
Smith accompanied S.W. and her mother to the scheduled forensic examination.
The examination was conducted by Katherine Blevins, a nurse practitioner with
extensive experience in conducting forensic examinations of children and adults who
have been sexually abused. Tr. 293. As part of the evaluation, Ms. Blevins completed
a physical examination of S.W., during which she found no physical evidence of
sexual abuse. Ms. Blevins testified, however, that “physical findings” of sexual abuse

-2-

are found in fewer than 5% sexually-abused children. Tr. 309. Ms. Blevins also
conducted two videotaped interviews with S.W., which were played for the jury. The
videotapes showed S.W. using anatomical drawings to describe a number of sexual
activities petitioner had engaged in with her. Tr. 315-16. At some point, however,
S.W. told Ms. Blevins that she had made the story up. Tr. 325 (“She said that she had
told a lie about her daddy . . . Donald.”). Ms. Blevins testified that it is not unusual for
victims to recant. Based on S.W.’s initial statements and body language, Ms. Blevins
believed S.W. had been molested by petitioner. Tr. 326-28.
A few days after the forensic evaluation, S.W. told her classroom teacher she
wanted to speak with the school guidance counselor, Carolyn Hayes. S.W. told Ms.
Hayes that petitioner had abused her. She also said that Jessica Smith pressured her
to recant. Tr. 343-44 (S.W. “said that Aunt Jessica . . . had told her to tell them that
her dad had not done this, and had kept on and on until . . . she told one lady that he
didn’t, but he did.”). When S.W. began to describe petitioner’s actions in detail, Ms.
Hayes asked the school nurse to join them.

S.W. told them that petitioner had

molested her on a number of occasions. (Tr. 344-45).
On August 9, 2005, S.W. was interviewed by Tommy Capps, an investigator
with the Division of Children’s Services. A videotape of the interview was played at
trial. S.W. told Mr. Capps that, at various times, petitioner put his penis in her mouth,
put his mouth and his hand on her vagina, and made her put her hand on his penis.
See Tr. 17-21 (pretrial evidentiary hearing).
Additional facts will be included as necessary to address the merits of petitioner’s
claims for relief.
III.

Legal Standard

-3-

When a claim has been adjudicated on the merits in state court proceedings,
habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court’s determination:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d)(1)-(2).
A state court’s decision is “contrary to” clearly established law if “it applies a rule
that contradicts the governing law set forth in [the Supreme Court’s] cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of [the
Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141
(2005). “The state court need not cite or even be aware of the governing Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early
v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis of the state court’s
decision, [the federal court’s] focus is on the result and any reasoning that the court
may have given; the absence of reasoning is not a barrier to a denial of relief.” Id.
A decision involves an “unreasonable application” of clearly established law if
“the state court applies [the Supreme Court’s] precedents to the facts in an objectively
unreasonable manner,” Payton, 125 S. Ct. at 1439; Williams v. Taylor, 529 U.S. 362,
405 (2000), or “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.”
Id. at 406. “Federal habeas relief is warranted only when the refusal was ‘objectively
-4-

unreasonable,’ not when it was merely erroneous or incorrect.” Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
IV.

Discussion
A. Grounds 1 and 2: Sufficiency of the Evidence on Count II

Petitioner asserts that there was no evidence that he put his mouth on S.W.’s
vagina on more than one occasion, as charged in Count II of the second amended
information. Resp. Ex. A at 14-15. He claims that the trial court erred by denying his
motion for acquittal on this count (Ground 1) and that the court of appeals erred by
affirming his conviction (Ground 2).
During direct examination, S.W. twice answered “No” when the prosecutor asked
whether petitioner ever touched her vagina with his mouth.

Tr. 221.

examination, when asked again, she answered, “I can’t remember.”

On crossTr. 237.

However, in August 2005, S.W. told investigator Tommy Capps that petitioner did
touch her “private” with his mouth -- once while they were at her grandmother’s home
and once in a trailer. See Tr. 20; Resp. Ex. D at 11. The videotape of this interview
was played for the jury during the State’s case and during their deliberation. Tr. 35758; 446-57.
“Constitutionally, sufficient evidence supports a conviction if, ‘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.’” Garrison
v. Burt, 637 F.3d 849, 854 (8th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). To prevail on his claim, petitioner must show that the state courts’
conclusion that the evidence satisfied the Jackson sufficiency of evidence standard was
“both incorrect and unreasonable.” Id. at 855.

-5-

The Missouri Court of Appeals determined that the videotaped interview was
properly admitted into evidence and that S.W.’s statements during the interview
constituted sufficient evidence for a reasonable person to find that petitioner
committed first-degree statutory sodomy by placing his mouth on S.W.’s vagina on
more than one occasion. Resp. Ex. D at 15. Petitioner argues that S.W.’s videotaped
statements were contradicted by her trial testimony and thus cannot constitute
evidence. To the extent that S.W. gave conflicting statements, it was the function of
the jury to evaluate which version they found credible. Petitioner may disagree with
the jury’s credibility determination, but that is a different question than whether the
prosecution presented evidence in the first instance. Because there was evidence
sufficient to establish the charged offense, the decisions of the state courts were not
contrary to, or unreasonable applications, of established federal law.
B. Grounds 3 through 9: Ineffective Assistance of Counsel
Petitioner asserts three claims that his trial counsel rendered constitutionally
ineffective assistance, three claims that the Missouri Court of Appeals erred in affirming
the denial of post-conviction relief on these claims, and one claim that post-conviction
counsel was ineffective.
To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must show that his attorney’s performance fell below an objective standard of
reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687 (1984). With respect to the first Strickland prong, there exists a strong
presumption that counsel’s conduct falls within the wide range of professionally
reasonable assistance. Id. at 689. In order to establish prejudice, petitioner “must
show that there is a reasonable probability that, but for counsel’s unprofessional

-6-

errors, the result of the proceeding would have been different.

A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at
694.
“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’
of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, –––U.S. –––, 131 S. Ct. 1388, 1410 (2011)).
First, under Strickland, the state court must make a predictive judgment about
the effect of the alleged deficiencies of counsel on the outcome of the trial,
focusing on whether it is “reasonably likely” that the result would have been
different absent the errors. Strickland, 466 U.S. at 696. . . To satisfy
Strickland, the likelihood of a different result must be “substantial, not just
conceivable.” Id. Under AEDPA, [federal courts] must then give substantial
deference to the state court’s predictive judgment. So long as the state court’s
decision was not “contrary to” clearly established law, the remaining question
under the “unreasonable application” clause of § 2254(d) is whether the state
court’s determination under the Strickland standard is unreasonable, not merely
whether it is incorrect. Harrington v. Richter, ––– U.S. –––, 131 S. Ct. 770,
792, 785 (2011). This standard was meant to be difficult to meet, and “even
a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 786.
Id. at 831-32.
(1) Juror Dale Hall
Petitioner asserts that trial counsel rendered ineffective assistance by failing to
challenge juror Dale Hall during jury selection or to move for a mistrial after Mr. Hall
revealed mid-trial that he knew petitioner and his family. He asserts that the postconviction court erred in denying his ineffective-assistance claim (Ground 3) and that
the appeals court erred in affirming that denial (Ground 4).
At trial, Ms. Byrd testified that the family had lived at 115 West Main St., in
Hayti, Missouri, at some time between 2002 and 2005. (Tr. 253-56). During a recess
following this testimony, juror Dale Hall informed the court that he lived at 110 West
Main St. (Tr. 278). In response to questions from the court, Mr. Hall stated that he
-7-

had not interacted socially with members of petitioner’s family and had not known their
names. He felt that he could be a fair and impartial juror. The attorneys did not ask
Mr. Hall any additional questions and he was allowed to remain on the jury.
Petitioner and his trial counsel both testified at the post-conviction evidentiary
hearing. Counsel testified that petitioner told him during voir dire that Mr. Hall might
have been a neighbor. Resp. Ex. K at 5. According to counsel, petitioner thought Mr.
Hall’s familiarity with the family would be beneficial to the defense, because Mr. Hall
would know that S.W. and her family were “somewhat untruthful.” Counsel testified
that he thought it was “odd” that Mr. Hall did not state he knew the family during voir
dire, but counsel did not pursue the issue because petitioner wanted Mr. Hall on the
jury. Id. at 6. When, during trial, Mr. Hall stated that he knew the family, counsel
again consulted with petitioner, who again asserted that Mr. Hall’s familiarity with the
family was beneficial for the defense. Counsel had no recollection that petitioner told
him of any negative interaction with Mr. Hall or his family. Petitioner testified at the
post-conviction hearing that he told his lawyer during jury selection that he had
reported Mr. Hall’s son to the police for taking things from his car. Id. at 21-22.
According to petitioner, his lawyer believed that, despite this incident, Mr. Hall’s
familiarity with the family would help the defense; petitioner testified that he was
skeptical because Mr. Hall “kept giving [him] kind of dirty looks.” Id. at 22.
The post-conviction court rejected petitioner’s claim that counsel rendered
ineffective assistance by failing to move to strike Mr. Hall during jury selection. The
court found that petitioner acquiesced in the decision to leave Mr. Hall on the jury and
thus was foreclosed from raising the issue in a post-conviction motion. Resp. Ex. F at
5-6. Boyd v. State, 86 S.W.3d 153, 158 (Mo. Ct. App. 2002) (“Improper jury selection

-8-

may be advanced for the first time under Rule 29.15 if the movant can show that he
had no knowledge of the improper jury selection process until after his trial.”)
Petitioner cannot overcome the court’s determination that he approved of counsel’s
decision. See 28 U.S.C. § 2254(e)(1) (state court fact determinations entitled to
presumption of correctness that can be overcome by clear and convincing evidence).
The court also rejected petitioner’s claim that counsel erred by failing to move for a
mistrial once juror Hall revealed he knew petitioner and his family. There was no
evidence that Mr. Hall was biased against petitioner and, thus, petitioner could not
establish that he was prejudiced by counsel’s performance. See Sanders v. Norris, 529
F.3d 787, 794 (8th Cir. 2008) (rejecting ineffective assistance claim based on failure
to remove juror where petitioner failed to establish bias). The decisions of the state
courts were not contrary to, or unreasonable applications, of established federal law.
(2) Jailhouse Informants
Darrell Kuehl and David Holifield testified that they met petitioner in the
Pemiscot County Jail while they were awaiting trial on stealing charges. They each
testified that petitioner told them he had abused his stepdaughter. Tr. 373-74, 381.
Petitioner claims that his counsel was ineffective for failing to request a pretrial
reliability hearing in order to prove their testimony was inherently unreliable. He
argues that the post-conviction court erred in denying this claim (Ground 5) and that
the appellate court erred in affirming the denial (Ground 6).
The state courts rejected petitioner’s claim based on counsel’s failure to seek a
pretrial reliability hearing on this testimony because Missouri criminal procedure does
not provide for such a hearing. Resp. Ex. F at 6 (“This court not aware of any such
procedure in Missouri criminal cases involving unprivileged testimony by a competent,

-9-

adult, lay witness). “Counsel is not ineffective for failing to request a hearing he has
no right to receive.”

Resp. Ex. I at 8.

The court of appeals further found that

petitioner failed to establish that the outcome of the trial would have been different if
the testimony of the jailhouse informants had been excluded.

The state court

decisions are not contrary to, or unreasonable applications, of established federal law.
(3)

Ineffective assistance of post-conviction counsel

Petitioner argues in Ground 7 that post-conviction counsel provided ineffective
assistance by failing to reassert the claims he raised in his pro se motion for postconviction relief. He further argues that the post-conviction court denied him due
process by failing to issue findings of fact and conclusions of law on the claims made
in his pro se motion.
Petitioner filed a pro se motion for post-conviction relief pursuant to Mo.S.Ct.R.
29.15 in which he asserted five claims for relief.2 Only petitioner’s challenge to the
failure to strike juror Hall was included in the amended motion filed by appointed
counsel.
Petitioner does not seek relief on the merits of the excluded claims or argue
that ineffective assistance of post-conviction counsel caused procedural default of the
claims. Rather, he challenges the refusal of Missouri courts to review pro se claims
that are not included in the amended petition. This alleged error in state court postconviction proceedings does not constitute an error of constitutional magnitude and
thus is not cognizable in federal habeas corpus proceedings. See Jolly v. Gammon, 28

2

Petitioner asserted the following claims: a challenge to the use of the rapeshield law to exclude evidence that S.W. might have been molested by someone else;
a claim that the prosecutor’s opening statement was impermissibly suggestive; and
three claims of ineffective assistance based on counsel’s failure to present the evidence
of S.W.’s abuse by others, to strike juror Hall, and to depose S.W.
-10-

F.3d 51, 54 (8th Cir. 1994) (“an infirmity in a state post-conviction proceeding does
not raise a constitutional issue cognizable in a federal habeas petition”) (citation
omitted).
(4)

Failure to impeach witness

S.W.’s mother, Ms. Byrd, testified at a pretrial hearing that, about three months
before S.W. disclosed the abuse, she told her mother that she would “do whatever it
takes” to get petitioner out of the house. Resp. Ex. J at 63. Ms. Byrd also testified
that S.W. often told petitioner she did not want him there “because him being a
stepfather.” Id. At trial, defense counsel asked Ms. Byrd whether S.W. “ever indicated
to [her] that she wanted [petitioner] out of the house?”

Id. at 270.

Ms. Byrd

responded, “No, she never said nothing like that.” When asked a second time, she
again denied that her daughter had ever stated she “wanted [petitioner] out of the
house.” In Grounds 8 and 9, petitioner claims that trial counsel was ineffective for
failing to impeach Ms. Byrd with her prior inconsistent statement and asserts that the
post-conviction court and appellate court erred in denying him relief.
At the post-conviction evidentiary hearing, trial counsel testified that he chose
not to impeach Ms. Byrd because she was crying uncontrollably. Resp. Ex. K at 16.
He stated he looked at the jurors and “every one of the jurors was crying.” Id. “At
that point beating up on this lady any more was probably going to be less than helpful
. . .” Id. He also testified that there was a possibility that the prosecutor would point
out that S.W. had “good reason” for wanting petitioner out of the house. Id. at 17-18.
The post-conviction court found that counsel made a reasonable strategic
decision not to use Ms. Byrd’s prior inconsistent statement for impeachment, and thus
did not provide ineffective assistance. The court further found that petitioner could not

-11-

establish he was prejudiced by the alleged failure because impeaching Ms. Byrd would
not have changed the outcome of the trial. Resp. Ex. F at 7. The appellate court
affirmed. Resp. Ex. I at 10-11. The state court decisions are not contrary to, or
unreasonable applications, of established federal law.
V.

Conclusion

For the reasons discussed above, the Court concludes that petitioner has failed
to establish that he is entitled to relief based on state court proceedings that were
contrary to, or an unreasonable application of, clearly established federal law, or based
upon an unreasonable determination of the facts in light of the evidence presented in
the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make
a substantial showing of the denial of a constitutional right. Therefore, the Court will
not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997).

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 13th day of May, 2014.

-12-