Rhoades v. Dormire
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no Certificate of Appea lability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right.28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Shirley P. Mensah on 9/26/14. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DOYNE A. RHOADES,
Case No. 4:11-CV-1388-SPM
MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Doyne A. Rhoades’s
(“Petitioner’s”) pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (Doc. 27). After reviewing the case, the Court has determined
that Petitioner is not entitled to relief. As a result, the petition will be dismissed.
On December 18, 2006, Petitioner was in Moberly, Missouri, in violation of his parole.
He was visiting the residence of his girlfriend, Zoah Smith. A friend of his from prison, Tim
Adams, was also present. Late in the evening, Willie Patton came to Smith’s residence to collect
thirty dollars she owed him for crack cocaine. Patton initially told Smith and Petitioner that the
Unless otherwise noted, these facts are taken from the opinion of the Missouri Court of Appeals
regarding Petitioner’s direct appeal, Resp’t Ex. D, and the opinion of the Missouri Court of
Appeals regarding Petitioner’s appeal from the denial of his motion for post-conviction relief,
Resp’t Ex. J. The factual findings of the state court are presumed to be correct unless Petitioner
presents clear and convincing evidence contradicting them. See 28 U.S.C. § 2254(e)(1); Gray v.
Norman, 739 F.3d 1113, 1116 (8th Cir. 2014).
debt would be forgiven if they stole some items from Wal-Mart for him, which they did.
However, Patton later stated that the debt would be forgiven only for cash or sexual favors from
Smith. Patton and Petitioner got into a physical altercation. Petitioner testified that Adams then
struck Patton in the back of the head, and Patton fell to the ground unconscious. Petitioner
testified that he and Adams loaded Patton into the back of a Lincoln vehicle. They drove to the
home of Alfred Rathbun, where Petitioner told Rathbun that he had beaten a man unconscious
because the man had “disrespected” Petitioner and that they wanted to borrow Rathbun’s van to
move the body. Rathbun refused, and Petitioner and Adams drove to a remote location in the
Lincoln vehicle with Patton still in the trunk. According to Petitioner, when they opened the
trunk to retrieve the body, Patton was alive, and he hit Adams with a tire iron. Petitioner testified
that Patton then attempted to jump out of the trunk but fell, and Adams hit Patton multiple times
with a tire iron. Petitioner and Adams then stripped the unconscious Patton down to his
underwear, tied him up with cable and speaker wire from the car, and left him in a ditch. The
medical examiner testified that Patton died in the ditch from a combination of head trauma and
On December 20, 2006, Petitioner was arrested for violating his parole and was confined
to the Justice Center in Moberly. In investigating Patton’s disappearance, Sergeant Arnsperger of
the Moberly Police Department learned that Petitioner might have been one of the last people to
see Patton before he disappeared. Investigators had also located the Lincoln vehicle and found
blood evidence in the trunk. Arnsperger went to the Moberly Justice Center and spoke with
Petitioner there. Petitioner initially stated that that he did not know Patton but eventually stated
that he did know Patton, just not by that name, and that he had seen Patton and argued with him
the day before the events in question. After this initial discussion, Petitioner refused to speak to
investigators without an attorney present. Subsequently, the pants Petitioner had been wearing
when he was arrested were found to have blood stains on them that were consistent with Patton’s
DNA. Petitioner was then charged with first-degree murder and armed criminal action.
At trial, the State sought to elicit testimony from Officer Arnsperger about his
questioning of Petitioner prior to the request for counsel. Petitioner’s counsel objected that the
statements were inadmissible because they had been made without Petitioner having been given
Miranda warnings. The trial court overruled the objection and permitted the testimony. Officer
Arnsperger testified that he went to the Moberly Justice Center “just to find out if [Petitioner]
knew where [Patton] was at” and that he did not know at the time what had happened to Patton.
Resp’t Ex. K, Record on Appeal - Transcript, 468-69, 475. Officer Arnsperger testified that he
asked to speak to Petitioner, that Petitioner was brought down from his cell, and that Officer
Arnsperger and another officer sat down with him and spoke with him. Id. at 469. The officer
testified that he did not give Miranda warnings to Petitioner “[b]ecause I didn’t have a crime and
I wasn’t asking—he wasn’t under arrest by me.” Id. The officer told Petitioner that they were
investigating a missing person case, told him that his name had come up in conversations with
Patton’s family members, and asked him if he knew anything about Patton or where he was. Id.
at 470-71. The officer testified that Petitioner initially said he did not know Patton. Id. at 471.
The officer then asked Petitioner questions about his activities during the days preceding
Patton’s disappearance. Id. at 471-75. The officer testified that Petitioner eventually stated that
he did know Patton, just not by that name; that Patton had come over and gotten into a dispute
with Petitioner and his girlfriend over a $30 debt; that Patton had threatened to shoot them; that
Patton left; and that Petitioner did not know what had happened to Patton. Id. at 477-80. The
officer testified that Petitioner was free to not answer his questions. Id. at 469. Petitioner
acknowledged on cross-examination that he knew he did not have to talk to the officers if he did
not want to and that he had not been forced to talk to the officers. Id. at 654.
Also at trial, during the cross-examination of Petitioner, the state attempted to impeach
Petitioner by showing that his changing testimony was related to his knowledge of his codefendant’s (Adams’s) cooperation with police. Defense counsel objected on the ground that
such testimony was hearsay. The trial court sustained the objection as to “the content of what
Adams said” but stated that the prosecution could elicit testimony regarding “a motive to change
[Petitioner’s] statement.” Resp’t Ex. D, at 16. The cross-examination of Petitioner then included
the following exchange:
Okay. But you’re—at that point in time, before talking to the police,
you’re concerned, one, if the [S]tate’s going to seek the death penalty.
And you’re concerned about whether Adams might testify against you.
And you now know, I don’t need the details, but you now know that Mr.
Adams has told a different story about—
MR. SLUSHER: Objection, Your Honor. It’s hearsay.
THE COURT: The objection will be overruled.
[By Mr. Zoellner]: You know he’s telling a different story about who did
what that night.
And he’s pointing a finger at you.
Resp’t Ex. D at 16-17.
After the end of a two-day trial, the jury began deliberations at approximately 6:30 p.m.
At 11:30 p.m., after five hours of deliberations, the jury sent a note to the trial court stating, “We
would like to take a short break.” The trial court responded with a note that said, “Please
continue your deliberations.” The jury did so and found the defendant guilty at around 2:00 a.m.
on June 5, 2008.
On June 5, 2008, a jury in the Circuit Court of Randolph County convicted Petitioner of
one count of murder in the first degree and one count of armed criminal action. Resp’t Ex. A at
9, 87-88. On July 18, Petitioner was sentenced to concurrent terms of life in prison without
eligibility for probation or parole and 30 years in prison. Id. at 97. On October 20, 2009,
Petitioner’s conviction and sentence were affirmed on direct appeal. Resp’t Ex. D. On November
5, 2009, Petitioner filed a motion for post-conviction relief pursuant to Missouri Supreme Court
Rule 29.15, and on March 22, 2010, he filed an amended motion, Resp’t Ex. E at 4, 110. The
Circuit Court of Randolph County held a hearing on May 13, 2010, and it denied Petitioner’s
amended motion on June 8, 2010. Id. at 131, 137. On July 12, 2011, the Missouri Court of
Appeals affirmed the denial of post-conviction relief. Resp’t Ex. J. Petitioner’s Motion for
Rehearing and/or Transfer to the Supreme Court was denied on August 30, 2011.
Petitioner filed the instant petition for writ of habeas corpus on August 11, 2011 (Doc.
No. 1), and it was amended with leave of Court on March 27, 2012 (Doc. Nos. 17 & 18). In the
petition, as amended, Petitioner raises six claims for relief:
That the trial court violated Petitioner’s Fifth Amendment right against selfincrimination when it admitted into evidence a statement made by Petitioner
while he was in custody and no Miranda warnings had been given;
That the State’s attorney’s references at trial to the statements of Petitioner’s nontestifying co-defendant violated Petitioner’s Sixth Amendment right to confront
That the trial judge’s refusal of the jury’s request to take a short break, without
defense counsel present, was a coercive tactic that caused the jury to return a
verdict they might not have reached had they been allowed the opportunity for a
break or recess;
That Petitioner’s trial counsel was ineffective for failing to allow the trial court
the opportunity to decide whether the Uniform Mandatory Disposition of
Detainers Law (“UMDDL”), Mo. Rev. Stat. §§ 217.450-217.485, had been
That Petitioner’s trial counsel was ineffective for failing to file and litigate a
pretrial motion to suppress statements Petitioner made while he was in custody
and no Miranda warning had been given; and
That Petitioner’s trial counsel was ineffective for failing to object on Sixth
Amendment grounds to the State’s attorney’s references at trial to the statements
of Petitioner’s non-testifying co-defendant.
A. Exhaustion Analysis
A petitioner must exhaust his state law remedies before the federal court can grant relief
on the merits of the claims in a habeas petition. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). The Court must first examine whether the federal constitutional
dimensions of the petitioner’s claims have been fairly presented to the state court. Smittie v.
Lockhart, 843 F.2d 295, 296 (8th Cir. 1988) (citation omitted); see also O’Sullivan, 526 U.S. at
848. If they have not, the petitioner may still satisfy the exhaustion requirement if there are no
“currently available, non-futile state remedies” by which he could present his claims to the state
court. Smittie, 843 F.2d at 296 (citation omitted) (internal quotation marks omitted). Claims that
Claim 4 was altered by amendment to be a claim of ineffective assistance of counsel rather than
a claim that the UMDDL was violated.
are exhausted due to the absence of available state remedies, however, are considered
procedurally defaulted. See O’Sullivan, 526 U.S. at 848.
A review of the record shows that all of Petitioner’s claims for relief are exhausted
because they were either raised in state court and determined on the merits or cannot currently be
pursued through any available, non-futile state remedy.
B. Procedural Default Analysis
“Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding
may consider only those claims which the petitioner has presented to the state court in
accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir.
2012) (quotation marks omitted). “In Missouri, a claim must be presented at each step of the
judicial process to avoid default.” Id. at 1087.
A state prisoner may obtain federal review of a procedurally defaulted claim by showing
either (1) cause for the default and actual prejudice as a result of the constitutional violation, or
(2) that a failure to consider the claim would result in a fundamental miscarriage of justice.
Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (citing Coleman v. Thompson, 501 U.S. 722,
750 (1991)). “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) (quoting Coleman, 501
U.S. at 753). “To fall within the fundamental-miscarriage-of-justice exception, ‘a habeas
petitioner [must] present new evidence that affirmatively demonstrates that he is innocent of the
crime for which he was convicted.”’ Murphy, 652 F.3d at 850 (quoting Abdi v. Hatch, 450 F.3d
334, 338 (8th Cir. 2006)). “‘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 v. Delo, 513 U.S. 298, 316
Respondent argues that Claim Six is procedurally defaulted, and the Court agrees.3 In
Claim Six, Petitioner argues that his trial counsel was ineffective for failing to object on Sixth
Amendment grounds to the State’s attorney’s references to the statements of his non-testifying
co-defendant. In Missouri, claims of ineffective assistance of trial counsel must be brought
through a motion for post-conviction relief. Mo. Sup. Ct. Rule 29.15(a); Moore-El v. Luebbers,
446 F.3d 890, 896 (8th Cir. 2006). “Failure to raise a claim on appeal from the denial of a postconviction motion erects a procedural bar to federal habeas review.” Jolly v. Gammon, 28 F.3d
51, 53 (8th Cir. 1994) (citing Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir. 1988)); see
also Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005) (holding an ineffective assistance of
counsel claim procedurally barred where it was raised in a Rule 29.15 motion but was not
included in an appeal to the Missouri Court of Appeals).
Petitioner raised this ineffective assistance claim in his amended motion for
postconviction relief, Resp’t Ex. E at 112, but he did not raise it in his appeal of the denial of
postconviction relief, Resp’t Ex. H at 26-29. Thus, the claim is procedurally defaulted for
purposes of federal habeas review and can be reviewed only if Petitioner shows cause and
prejudice or new evidence of actual innocence. Petitioner does not attempt to show cause for this
Respondent also argues that Claims One and Two are procedurally defaulted. However, as
discussed below, there is some uncertainty regarding whether those claims are procedurally
defaulted, and even if they are not, they are without merit.
default,4 nor does he present any new evidence of his actual innocence, so the Court is barred
from considering this claim.
C. Merits Analysis
“In the habeas setting, a federal court is bound by the [Antiterrorism and Effective Death
Penalty Act of 1996] to exercise only limited and deferential review of underlying state court
decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254). Under
this standard, a federal court may not grant relief to a state prisoner unless the state court’s
adjudication of a claim “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d).
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 United States Supreme]
Court on a question of law or if the state court decides a case differently than [the United States
Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000); see also Bell v. Cone, 535 U.S. 685, 694 (2002). A state court decision
involves an “unreasonable application” of clearly established federal law if it “correctly
identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell, 535 U.S. at 694. “Finally, a state
The Court notes that counsel’s failure to raise the claim on appeal from the denial of the motion
for post-conviction relief cannot constitute cause to excuse procedural default. See Arnold v.
Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (failure of post-conviction counsel to raise claims
on appeal from initial-review collateral proceeding does not constitute cause to excuse
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.” Jones v. Luebbers, 359 F.3d 1005,
1011 (8th Cir. 2004) (citations and internal quotation marks omitted).
1. Claim One: Admission of Statements Made Without Miranda Warnings
In Claim One, Petitioner argues that his Fifth Amendment right against self-incrimination
was violated when the trial court admitted into evidence a “non-mirandized statement” he made
to police. Respondent first argues that Claim One is procedurally defaulted because Petitioner
failed to raise the argument at or before trial through a motion to suppress. The Missouri Court of
Appeals did find that the Miranda claim was “procedurally, not preserved for appellate review”
under Missouri law, but it also discussed the requirements of Miranda and found the claim to be
“without merit” based on the evidence before the trial court. Resp’t Ex. D at 10-15 (citing, inter
alia, Missouri Rule of Criminal Procedure 24.05 and State v. Galazin, 58 S.W.3d 500, 505 (Mo.
2001)). Where, as here, it is unclear whether the Missouri Court of Appeals’ decision was based
on an independent Missouri procedural rule or was dependent in part on the merits of Petitioner’s
constitutional claim, it is appropriate for this Court to address the merits of the claim.5 See
To the extent that the claim has been procedurally defaulted, this court is barred from reviewing
it because Petitioner has not demonstrated cause and prejudice to excuse the default, nor has he
presented new evidence that he is actually innocent. Petitioner suggests that his trial counsel’s
ineffective assistance in failing to file a pretrial motion to suppress constitutes cause to excuse
any procedural default. However, for ineffective assistance of counsel to constitute cause and
prejudice to excuse procedural default, the petitioner must demonstrate that the ineffective
assistance standards outlined in Strickland v. Washington, 466 U.S. 668, 686 (1984), are
satisfied. Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005); Clemons v. Luebbers, 381
F.3d 744, 752 (8th Cir. 2004). As discussed with respect to the merits of Claim Five below,
Petitioner’s trial counsel was not ineffective under Strickland based on his failure to file a motion
to suppress Petitioner’s pre-Miranda statements. Thus, Petitioner cannot establish cause to
excuse the procedural default. Moreover, Petitioner presents no evidence showing that he was
actually innocent of the crimes of which he was convicted.
Lannert v. Jones, 321 F.3d 747, 751 (8th Cir. 2003) (reviewing claim on the merits where state
court found that the claim was not preserved for appeal but also appeared to address the merits of
the claim); Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir. 1997) (“When a state court decides an
issue on the merits despite a possible procedural default, no independent and adequate state
ground bars consideration of that claim by a habeas court.”) (citing Harris v. Reed, 489 U.S. 255,
262-63 (1989) and County Court of Ulster County v. Allen, 442 U.S. 140, 152-54 (1979)).
Even when the claim is considered on its merits, Petitioner is not entitled to habeas relief.
As the Missouri Court of Appeals recognized, in Miranda v. Arizona, the United States Supreme
Court formulated warnings that must be given to suspects before they can be subjected to
custodial interrogation. 384 U.S. 436, 444 (1966). In assessing whether a suspect is in custody
for purposes of Miranda, the court must assess “whether, in light of the objective circumstances
of the interrogation, a reasonable person would have felt that he or she was not at liberty to
terminate the interrogation and leave.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012) (internal
quotation marks and citations omitted). In making this determination, the court is to examine all
of the circumstances surrounding the interrogation, including “whether [the] individual’s
freedom of movement was curtailed” and whether the relevant environment “presents the same
inherently coercive pressures as the type of station house questioning at issue in Miranda.” Id. at
The United States Supreme Court has held that a person questioned while serving a
prison term is not necessarily in “custody” for purposes of Miranda, even though the prisoner’s
freedom of movement may be limited. Id. at 1188-90. It has reasoned in part that “questioning a
person who is already serving a prison term does not generally involve the shock that very often
accompanies arrest” and that a prisoner is not “pressured to speak by the hope that, after doing
so, he will be allowed to leave and go home.” Id. at 1191. It has further held that taking a
prisoner aside for private questioning does not necessarily render an interrogation custodial, even
where it necessitates some additional limitations on freedom of movement; it noted that such
procedures are an ordinary and familiar attribute of life behind bars. Id. at 1192. The Court held
that the determination of custody “should focus on all of the features of the interrogation,”
including “the language that is used in summoning the prisoner to the interview and the manner
in which the interrogation is conducted.” Id. at 1192-93 (finding no custody for Miranda
purposes where the prisoner had not been advised that he was free to decline to speak with the
officers, the interview lasted between five and seven hours and continued well past the prisoner’s
normal bedtime, the officers were armed, and the officers used a very sharp tone, but the facts
also showed that the prisoner was told that he could go back to his cell whenever he wanted, was
not physically restrained or threatened, was interviewed in a well-lit and average-sized
conference room whose door was sometimes open, and was offered food and water).
Here, in assessing whether Petitioner was in custody at the time of the statements at issue,
the Missouri Court of Appeals noted that the standard was “whether a reasonable person in the
defendant’s position would have, in the totality of the circumstances, felt that their freedom was
restrained more than in a normal detention setting.” Resp’t. Ex. D at 13. Assessing the evidence
before it, it stated:
[T]here is no evidence presented that coercive language was used to set up the
interview; there is no evidence that coercive questions were asked; there is no
evidence on the length of the interrogation; there is no evidence of psychological
pressures borne upon Rhoades; there is no evidence of additional restrictions
placed upon Rhoades’s freedom; and while there is evidence that Rhoades was
removed from his jail cell for the interview, the only tangible evidence that we
have about Rhoades’s state of mind about the interview is that he testifies that the
circumstances of the interview were such that he knew he didn’t have to speak
with the investigators about Patton’s disappearance and that he knew he had a
right to request an attorney. We also have the investigator’s testimony that
Rhoades was free to terminate the interview at any time and return to his jail cell.
Id. at 12-13. The court noted that although “subjective opinions” in the record “might be of some
use in helping evaluate other objective factors, they are not the standard by which conformity to
Miranda is measured.” Id. at 13. The court found that the evidence was insufficient to establish
that Petitioner was in custody at the time of the interview. Id. at 14-15.6
The Missouri Court of Appeals’ decision was not contrary to clearly established Supreme
Court precedent, nor did it involve an unreasonable application of clearly established federal law.
The court articulated a “totality of the circumstances” standard that was consistent with Howes,
and it considered factors consistent with the Supreme Court’s direction in Howes that the court
must consider “all of the features of the interrogation,” including “the language that is used in
summoning the prisoner to the interview” and “the manner in which the interrogation is
conducted.” 132 S. Ct. at 1192. Its conclusion that there was insufficient evidence to support a
finding that Petitioner was in custody was not an unreasonable application of this standard, given
that there was no evidence of coercive language, coercive questions, psychological pressures, or
additional restrictions on Petitioner’s freedom beyond Petitioner being removed from his jail
cell. Moreover, the factual findings of the court did not involve an unreasonable determination of
the facts in light of the evidence before it, because the court’s factual findings are supported by
the record before it.
For all of the above reasons, Claim One is denied.
The Missouri Court of Appeals found that under Missouri law, because the defense objected to
the admissibility of the evidence at trial (rather than presenting it through a motion to suppress),
the defense bore the burden of establishing the unlawfulness of the police conduct. Resp’t Ex.
D., at 14-15 (citing State v. Galazin, 58 S.W.3d 500, 505 (Mo. 2001)).
2. Claim Two: Confrontation Clause Violation
In Claim Two, Petitioner argues that the State’s attorney’s references at trial to the
statements of Petitioner’s non-testifying co-defendant violated Petitioner’s Sixth Amendment
right to confront his accuser. Petitioner raised this claim in his direct appeal, and the Missouri
Court of Appeals found that the error had not been preserved under Missouri’s procedural rules
because counsel did not raise a Sixth Amendment issue either at trial or in the motion for a new
trial and did not raise the hearsay objection in a motion for new trial. Resp’t Ex. D at 17 (citing
Mo. Sup. Ct. R. 29.11(d) and State v. Winfield, 5 S.W.3d 505, 511 (Mo. 1999)). Therefore, it
reviewed the claim only for plain error, which requires the appellant to demonstrate “that plain
and obvious error was committed by the trial court and that either manifest injustice or a
miscarriage of justice would occur if the error were not corrected.” Id. at 17-18 (citing Mo. Sup.
Ct. R. 30.20 and State v. Wyble, 211 S.W.3d 125, 129 (Mo. Ct. App. 2007)). The Court of
Appeals found that although the trial court had erred, there was no manifest injustice and thus the
claim was without merit.
Respondent argues that this claim is procedurally defaulted because of Petitioner’s failure
to raise it at trial or in a motion for new trial. Generally, where a criminal defendant violates a
state procedural rule and thereby fails to preserve a constitutional claim for appellate review, the
claim is procedurally defaulted and the federal court is barred from considering that claim in a
habeas petition. See Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012). However, there
are conflicting panel decisions in the Eighth Circuit regarding whether plain error review by a
state court cures a procedural default. Compare Toney v. Gammon, 79 F.3d 693, 699 (8th Cir.
1996) (holding a habeas claim was procedurally defaulted and could not be reviewed where the
state court reviewed for plain error), with Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.
1997) (holding that because the state court reviewed for plain error, the federal court would
review the habeas claim for plain error). See also Briscoe v. Norman, No. 4:11-CV-1154 JCH,
2014 WL 4204903, at *7-*8 (E.D. Mo. Aug. 22, 2014) (noting conflict between Eighth Circuit
panel decisions). Where there are conflicting Eighth Circuit panel decisions, “the earliest opinion
must be followed, as it should have controlled the subsequent panels that created the conflict.”
Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (quotation marks omitted).
However, because the Court finds that Petitioner’s claim must be denied even if plain error
review does excuse the procedural default, the Court need not determine which line of cases has
the earliest origins and thus whether the claim is procedurally defaulted. Cf. Briscoe, 2014 WL
4204903, at *7-*8 (declining to decide which line of cases to follow because the claim at issue
would be denied even under plain error review).
Even where plain error does excuse procedural default, the federal habeas court reviews
only “for plain error resulting in manifest injustice.” Hornbuckle, 106 F.3d at 257. The court
does not conduct its own plain error review de novo; rather, its review is governed by AEDPA’s
deferential standards of review. See Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir. 2009); James
v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999).
On appeal, Petitioner argued that the admission of the statements at issue violated his
rights under the Confrontation Clause, which “bars ‘admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.’” United States v. Spencer, 592 F.3d 866, 878 (8th
Cir. 2010) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)). Applying the first
prong of the plain error inquiry, the Missouri Court of Appeals agreed with Petitioner that the
trial court had plainly erred and had violated Petitioner’s rights under the Confrontation Clause
when it permitted the prosecutor to state that Adams was “telling a different story” and was
“pointing a finger at [Petitioner].” Resp’t Ex. D at 20. However, it found that the second prong of
the plain error analysis was not satisfied:
The second prong of our plain error review is whether the trial court’s
plain error in permitting the line of questioning in question resulted in “manifest
injustice.” We find that it does not. Even if the line of questioning had been
excluded by the trial court, there was more than sufficient additional evidence to
support the jury’s verdict. In addition to the inconsistent statements of Rhoades,
there was the blood evidence on his jeans, Rhoades’s admission to Rathbun that
he had a body to dispose of that Rhoades had beaten because the victim had
shown disrespect to him, and there were marks on the Lincoln vehicle that
showed Patton’s attempt to escape. Finally, there was Rhoades’s own testimony
in which he admitted that he had motive to attack the victim, had in fact attacked
the victim, assisted in putting the victim in the trunk, assisted in stripping him and
tying him up with speaker wire, and helped to carry him to a ditch, where
Rhoades and Adams left him unconscious and bleeding on a cold December
night. Though the prosecutor’s improper questioning, which revealed the
inculpatory substance of Adams’s statement to police, was impermissible, it did
not affect the outcome of the verdict and was not manifestly unjust.
Resp’t Ex. D, at 20.
Petitioner does not argue, and has not shown, that the above findings are “contrary to” or
“involve an unreasonable application of” clearly established federal law, as established by the
United States Supreme Court. 28 U.S.C. § 2254(d)(1). Petitioner also cannot demonstrate that the
above findings are “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2), because he does not argue or attempt
to demonstrate that “the state court’s presumptively correct factual findings do not enjoy support
in the record.” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004). Petitioner does not
dispute that the Missouri Court of Appeals’ description of the other evidence supporting a guilty
verdict is consistent with the record. In light of this strong evidence, it was not unreasonable for
the Missouri Court of Appeals to conclude that the erroneous admission of the challenged
statements did not affect the outcome of the trial and thus that the error did not result in manifest
injustice. See, generally, Briscoe, 2014 WL 4204903 at *8 (“As the Missouri Court of Appeals
noted, there was overwhelming evidence on which the jury could convict Briscoe. In the face of
that overwhelming evidence, Briscoe cannot make the required showing for relief based on the
plain error standard.”); Griffith v. Larkins, No. 4:09CV1092 JCH, 2012 WL 1192189, at *17-*18
(E.D. Mo. April 10, 2012) (deferring to the state court’s determination, on plain error review,
that an improper remark would not have affected the jury’s verdict, in part because of the other
strong evidence of guilt).
For the above reasons, Claim Two is without merit and must be denied.
3. Claim Three: Trial Judge’s Ex Parte Communication With the Jury
Regarding the Jury’s Request for a Break
In Claim Three, Petitioner argues that that the trial court violated his Sixth Amendment
right to be present at trial and his Fourteenth Amendment right to due process when it refused the
jury’s request to take a short break during deliberations without giving defense counsel an
opportunity to object. Petitioner raised this claim in his direct appeal, and the Missouri Court of
Appeals denied it on the merits. Resp’t Ex. D at 20-21.
The Fifth and Sixth Amendments to the Constitution protect a criminal defendant’s right
to be present at all stages of a trial. Meeks v. United States, 742 F.3d 841 (8th Cir. 2014); Stewart
v. Nix, 972 F.2d 967, 971 (8th Cir. 1992). The trial court must provide defense counsel with
notice and a meaningful opportunity to object before responding to questions asked by the jury
after deliberations begin. Meeks, 742 F.3d at 844 (quoting Stewart v. Nix, 972 F.2d 967, 971 (8th
Cir. 1992)). However, where there is no prejudice resulting from a communication between the
trial court and the jury, a petitioner may not obtain habeas relief. See Shelton v. Purkett, 563 F.3d
404, 405, 408-09 (8th Cir. 2009) (trial court’s ex parte response to jury question did not warrant
habeas relief where the state court reasonably concluded that there counsel’s presence during the
colloquy between the trial judge and counsel would have not have changed the trial judge’s
decision); Atwood v. Mapes, 325 F. Supp. 2d 950, 979 (N.D. Iowa 2004) (ex parte
communication between trial court and jury did not warrant habeas relief because the record
“clearly indicates a lack of prejudice” and thus the error was harmless), aff’d, 142 F. App’x 961
(8th Cir. 2000); Jackson v. Hutto, 508 F.2d 890, 891-92 (8th Cir. 1975) (improper
communications between trial judge and jury outside of open court did not warrant habeas relief
because “the record in this case discloses no prejudice”).
Petitioner claims that he was prejudiced because the trial court’s refusal to give the jury a
break coerced it into reaching a verdict it might not otherwise have reached. The Missouri Court
of Appeals found that it did not need to decide whether the trial court’s actions were improper
because there was “no evidence that the defendant was prejudiced.” Resp’t Ex. D at 21. It stated:
While we note that deliberations had reached an advanced hour, a politely phrased
request to continue deliberations in response to a single plea for a recess does not
constitute conduct for which the trial court can reasonably be accused of directing
a verdict to be reached or implying to the jury that they will be held until they are
able to reach a verdict. The instruction of the court does not constitute coercion.
Consequently, the defendant was not prejudiced.
Petitioner cites no authority suggesting that this analysis was contrary to or an
unreasonable application of clearly established federal law, nor has this Court found any such
authority. 7 Moreover, the Missouri Court of Appeals’ analysis does not involve an unreasonable
The Court notes that Petitioner does not argue that the state court should have presumed that
the communication in this instance was prejudicial. The Eighth Circuit has held that
“[c]ommunication between judge and jury in the absence of and without notice to the defendant
creates a presumption of prejudice” that “may be overcome . . . by a clear indication of lack of
prejudice.” Stewart v. Nix, 972 F.2d 967, 971 (8th Cir. 1992). However, the presumption does
not apply to contacts between a judge and jury that are merely “ministerial” rather than
“substantive” in nature. United States v. Mann, 685 F.3d 714, 721 (8th Cir. 2012) (citations
omitted). Here, the communication at issue appears to be “ministerial,” because it did not involve
determination of the facts in the light of the evidence presented to it. Indeed, in the slightly
different context of a habeas claim challenging the trial court’s decision to give an Allen charge,8
the Eighth Circuit held that a state court finding that the jury’s verdict was not coerced is “the
type of finding of fact” that is presumed correct in the absence of “convincing evidence to the
contrary.” Stallings v. Delo, 117 F.3d 378, 381-82 (8th Cir. 1997) (holding that the magistrate
judge had “correctly applied the presumption of correctness to the state court of appeals’ finding
that the jury was not coerced into reaching a unanimous verdict, even though they had
deliberated almost continuously for thirteen hours, had not slept for over twenty hours, and had
been read [an Allen charge] after the foreperson indicated at 2:30 a.m. that the jury was at a
stalemate”). Regardless of whether the finding of no coercion here (and thus no prejudice) is
entitled to a presumption of correctness, it is consistent with the record and is not unreasonable
in light of clearly established federal law.
For the above reasons, Claim Three must be denied.
4. Claim Four: Ineffective Assistance of Counsel – Failure to File Motion to
Dismiss under the UMDDL
In Claim Four, Petitioner argues that his trial counsel was ineffective because he failed to
allow the trial court to decide whether the Uniform Mandatory Disposition of Detainers Law
(“UMDDL”), Mo. Rev. Stat. §§ 217.450-217.485, had been violated. Petitioner raised this claim
communication about the facts or substance of the case. Regardless, it has not been clearly
established by the United States Supreme Court that a presumption of prejudice would apply to
such a communication. Thus, the Missouri Court of Appeals’ analysis was not contrary to or an
unreasonable application of clearly established Federal law, as determined by the Supreme Court
of the United States.
“An Allen-charge is a supplemental jury instruction that advises deadlocked jurors to reconsider
their positions.” Wagner v. Jones, 758 F.3d 1030, 1032 n.4 (8th Cir. 2014) (quotation marks
in his motion for post-conviction relief, and the Missouri Court of Appeals denied the claim on
its merits. Resp’t Ex. J at 11-16.
The UMDDL provides that a person confined to the Missouri Department of Corrections
who has a detainer pending against him may file a written request to dispose of that detainer.
Mo. Rev. Stat. § 217.450(1). Under the version of the UMDDL that applied when Petitioner was
being detained, if the prisoner complies with certain procedural requirements for making such a
request, he must be brought to trial within 180 days of the receipt of the request. State v.
Williams, 120 S.W.3d 294, 298 (Mo. Ct. App. 2003) (citing § 217.460 (2000)). If the prisoner is
not brought to trial within the 180-day period, “no court shall have jurisdiction to hear the case
and shall issue an order dismissing the same with prejudice.” Id.9
Petitioner argues that his counsel was ineffective for failing to file a motion to dismiss the
case before trial because more than 180 days had passed since Petitioner had informed the
Department of Correction that a “de facto detainer” had been lodged against him.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective
assistance of counsel, Petitioner must show that (1) “[his] counsel’s performance was deficient”
and (2) “the deficient performance prejudiced [his] defense.” Id. at 687. In evaluating counsel’s
performance, the basic inquiry is “whether counsel’s assistance was reasonable considering all
the circumstances.” Id. at 688. Petitioner bears a heavy burden in overcoming “a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
“Missouri’s UMDDL was amended in 2009 and now provides that state officials’ failure to
comply with the UMDDL ‘shall not be the basis for dismissing the indictment, information, or
complaint unless the court also finds that the offender has been denied his or her constitutional
right to a speedy trial.’” Moore v. Steele, No. 4:12CV1174 CDP, 2013 WL 3092186, at *2 n.4
(E.D. Mo. June 18, 2013) (quoting Mo. Rev. Stat. § 217.450(3)).
assistance.” Id. at 689. Indeed, a strong presumption exists that counsel’s conduct “might be
considered sound trial strategy.” Id. (citation and internal quotation marks omitted). “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id. at 690. To establish prejudice, Petitioner “must show that there is
a reasonable probability that, but for counsel’s unprofessional 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. In the context of a habeas claim, it is not sufficient for
Petitioner to “show that he would have satisfied Strickland’s test if his claim were being
analyzed in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he must show
that the [state appellate court] applied Strickland to the facts of his case in an objectively
unreasonable manner.” Id. at 699.
The Missouri Court of Appeals found that neither of the Strickland prongs was satisfied,
because there had been no UMDDL violation and thus the filing of a motion to dismiss under the
UMDDL would have been “pointless.” It stated:
We need not reach [the] issue of whether the State had lodged a de facto
detainer against Rhoades because, even when assuming arguendo that it had,
Rhoades’s [ineffective assistance of counsel] claim would still be without merit in
light of the fact that he never actually filed a motion for speedy trial to start the
clock running under the UMDDL. “A fundamental procedural requirement of
Section 217.450 is a written demand for speedy disposition addressed to the court
and prosecuting attorney where the charges are pending.” Greene v. State, 332
S.W.3d 239, 243 (Mo. App. W.D. 2010) (quotation omitted). “The 180-day time
limit begins to run only when both the prosecuting attorney and the circuit court
receive a defendant’s request for disposition of pending charges.” Id. (citing
Rhoades argues that in January 2007 and in July 2007 he sought through
the DOC to have the instant charges (which were filed against him in December
2006) disposed of in a full and final fashion, and that these inquires [sic]
somehow constituted substantial compliance with the UMDDL. But this Court
has held that such inquiries to the DOC, alone, do not constitute a written demand
sufficient to trigger the UMDDL. See Green, 332 S.W.3d at 245 (“In this case,
Greene merely sent a letter to the DOC requesting advice on how to initiate the
180-day time limit. The DOC returned this letter and notified him that there was
no detainer lodged against him. A claim of substantial compliance requires, at a
minimum, that the defendant submit a request addressed to the circuit court and
the prosecuting attorney.”).
A detainer (de facto or otherwise) can be lodged against the defendant by
the State, but if the defendant does not assert his right to a speedy trial as required
by UMDDL, it is pointless to file a motion to dismiss on that basis because the
180 day period never began. See Section 217.460 (“Within one hundred eighty
days after the receipt of the request and certificate, pursuant to sections 217.450
and 217.455, by the court and the prosecuting attorney . . . the indictment,
information or complaint shall be brought to trial”); see also Branstetter, 107
S.W.3d at 472 (defendant filed a demand for speedy trial with the court and the
prosecutor on August 21, 2000, which was prior to his trial on January 9, 2002,
thereby satisfying that specific statutory requirement of Section 217.450).
Resp’t Ex. J at 13-14.
The Missouri Court of Appeals’ decision was not contrary to or an objectively
unreasonable application of Strickland. The court properly articulated the Strickland standard.
Resp’t Ex. J at 4-5. With regard to the first Strickland prong, it was not objectively unreasonable
for the state court to find trial counsel not deficient for failing to file a motion to dismiss under
the UMDDL when such a motion would have been “pointless” under state law because Petitioner
had not satisfied the procedural requirements of the UMDDL. “Determinations of state law made
by a state court are binding on a federal court in habeas proceedings.” Lupien v. Clarke, 403 F.3d
615, 619 (8th Cir. 2005). This court cannot “second-guess the decision of a Missouri state court
on Missouri law.” Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012).
Moreover, it was not unreasonable for the state court to find that trial counsel’s failure to
file a motion that would have been denied as a matter of state law did not result in prejudice to
For all of the above reasons, Claim Four must be denied.
5. Claim Five: Ineffective Assistance of Counsel – Failure to File Motion to
Suppress Statements Obtained Without Miranda Warnings
In Claim Five of his Petition, Petitioner argues that his trial counsel was ineffective for
failing to file and litigate a pretrial motion to suppress statements Petitioner made while he was
in custody and no Miranda warning had been given. In these statements, Petitioner told police
first that he did not know Patton and later that he did in fact know Patton, that Petitioner had
gotten into a heated dispute with Patton, that Patton had threatened to shoot Petitioner and his
girlfriend, that Patton had left, and that Petitioner did not know anything about Patton’s
whereabouts. Petitioner raised this claim in his motion for post-conviction relief and on appeal
from the denial of post-conviction relief, and the Missouri Court of Appeals rejected the claim on
the merits. Resp’t Ex. J at 4-10.
As discussed above, to prevail on a claim of ineffective assistance of counsel, Petitioner
must show that (1) “[his] counsel’s performance was deficient” and (2) “the deficient
performance prejudiced [his] defense.” Strickland, 466 U.S. at 687. To obtain habeas relief, a
petitioner “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, 699 (2002).
In considering this claim, the motion court and the Missouri Court of Appeals found that
Petitioner had not established ineffective assistance of counsel. The motion court found as
Movant claims his trial counsel was ineffective for failing to file and litigate a
pretrial motion to suppress Movant’s December 22, 2006 statement. Counsel was
not ineffective. Trial counsel Mr. Slusher credibly testified that, as a matter of
trial strategy, he believed the statement was going to come into evidence once
Movant took the stand and testified. Therefore, there would be no reason to file a
motion to suppress. Movant had made several statements about the same events,
and it was reasonable trial strategy to anticipate that Movant would be subject to
impeachment with his prior inconsistent statements. Even if Movant could
overcome the presumption that his trial counsel acted with reasonableness in
failing to file and litigate a motion to suppress, Movant cannot show prejudice.
There is no reasonable probability of a different outcome at trial, because there
were ample ways the same evidence would have come in.
Resp’t Ex. F, at 5-6. The Missouri Court of Appeals, after citing the above findings, affirmed the
finding of the motion court. Resp’t Ex. J at 7-10. It emphasized that (1) under Harris v. New
York, 401 U.S. 222, 226 (1971), when a defendant testifies at trial, his prior inconsistent
statements to police are admissible as impeachment evidence even if those statements were
obtained in violation of Miranda, (2) Petitioner testified at trial and did not dispute that he would
have done so regardless of whether his attorney had filed a motion to suppress, and (3) the
statements allegedly subject to suppression were inconsistent with his testimony to the jury and
were properly used at trial to impeach that testimony. Applying the first prong of Strickland, the
court found that the decision of whether to file a motion to suppress was a matter of trial strategy
and that trial counsel could not be deemed ineffective for failing to file a motion to suppress
statements that would have been admissible anyway. Resp’t Ex. J at 10. Applying the second
prong, the court found that because the statements would have been admitted as impeachment
evidence, there was no reasonable probability that the outcome of his trial would have been
different had a motion to suppress been filed. Id.
The Missouri Court of Appeals’ decision did not involve an objectively unreasonable
application of Strickland. The court correctly recognized that statements made during a custodial
interrogation that lacked the procedural safeguards required by Miranda may be admitted for
impeachment purposes if the defendant testifies at trial. Harris, 401 U.S. at 226 (holding that the
“shield provided by Miranda cannot be perverted into a license to use perjury by way of a
defense, free from the risk of confrontation with prior inconsistent statements”); United States v.
Issaghoolian, 42 F.3d 1175, 1177 (8th Cir. 1994) (“It is well established that statements made
without warnings adequate to Miranda are admissible for the limited purpose of
impeachment.”).10 Petitioner testified at trial that he was present when Patton was killed by Tim
Adams—testimony inconsistent with his statement to police that Patton left Petitioner’s
girlfriend’s house and that Petitioner did not know where Patton was. Resp’t Ex. J, at 8. As the
Missouri Court of Appeals noted in considering Petitioner’s Miranda claim on direct appeal,
“Rhoades’s initial statement (without Miranda warnings) is not an incriminating statement, and
the statement was not offered for an inculpatory purpose” but was rather “offered to show a prior
inconsistent statement.” Resp’t Ex. D at 10-11 n.4. Thus, it was not unreasonable for the
Missouri Court of Appeals to determine that these statements were admissible impeachment
evidence even if they were obtained in violation of Miranda. Indeed, Petitioner’s trial counsel
testified before the motion court that he decided not to file a motion to suppress “as an overall
matter of trial strategy,” because “Mr. Rhoades was going to have to testify in order for us to
have a defense” and because “[i]t was my belief that the unMirandized statement was going to
come in once he testified,” along with “other inconsistent previous statements.” Resp’t Ex. G at
35. Petitioner does not dispute that he would have testified at trial regardless of whether his
counsel had successfully litigated a motion to suppress. Given Strickland’s “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance,” 466
U.S. at 689, it was not objectively unreasonable for the Missouri Court of Appeals to conclude
that trial counsel was not deficient for deciding not to move to suppress evidence that was not
itself inculpatory and that was admissible as impeachment evidence.
The Court acknowledges that, had the statements to the police been “involuntary,” they would
not be admissible for any purpose. See Mincey v. Arizona, 437 U.S. 385, 398-402 (1978).
However, Petitioner does not contend that his statements to police were not made voluntarily,
nor does the record support such a position.
In addition, the Missouri Court of Appeals’ finding that there was no reasonable
probability that the outcome of the trial would have been different had the motion to suppress
been filed was not an objectively unreasonable application of Strickland. It was not unreasonable
for the state court to conclude that the successful litigation of a motion to suppress would not
have affected the outcome of the trial, and that therefore there was no prejudice under Strickland,
where the evidence would have been admitted for impeachment purposes even if the motion had
For all of the above reasons, Claim Five is denied.
For the above reasons, Petitioner is not entitled to federal habeas relief. Under 28 U.S.C.
§ 2253, an appeal may not be taken to the court of appeals from the final order in a 28 U.S.C.
§ 2254 proceeding “[u]nless a circuit justice or judge issues a certificate of appealability.” 28
U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the petitioner “has
made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or the issues
deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citation omitted).
The Court finds that reasonable jurists could not differ on Petitioner’s claims, so the Court will
not issue a Certificate of Appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no Certificate of Appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.
Dated this 26th day of September, 2014.
/s/ Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
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