Cotton v. Russell

Filing 20

MEMORANDUM OPINION: IT IS HEREBY ORDERED that Petitioner Marvin Cotton, Sr.'s Petition for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 9/29/14. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARVIN COTTON, SR.,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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Case No. 4:11 CV 1455 RWS

MEMORANDUM OPINION
Petitioner Marvin Cotton, Sr. seeks a writ of habeas corpus. In his Petition Cotton
alleges five grounds for relief. I referred this matter to United States Magistrate Judge Noelle C.
Collins for a report and recommendation on all dispositive matters pursuant to 28 U.S.C. §
636(b). On August 4, 2014, Judge Collins filed her recommendation that Cotton’s habeas
petition should be denied.
Cotton timely filed objections to the Report and Recommendation. I have conducted a de
novo review of all matters relevant to the petition. After careful consideration, I will adopt and
sustain the thorough reasoning of Judge Collins and I will deny Cotton’s habeas petition.
Background
On May 7, 2008, a jury found Cotton guilty of forcible rape, forcible sodomy, and
kidnapping. The convictions stemmed from an incident that had occurred more than eight years
earlier. The trial court sentenced Cotton, as a prior and persistent offender, to a term of life
imprisonment for forcible rape, a consecutive term of twenty-five years in prison for forcible
sodomy, and a consecutive term of twenty years for kidnapping.

Following an unsuccessful direct appeal, Cotton filed a pro se post-conviction relief
motion pursuant to Missouri Rule 29.15, asserting six grounds for relief. Counsel was appointed.
Appointed counsel filed an amended motion, alleging as the sole claim that Cotton’s trial counsel
was ineffective for failing to raise a defense to the kidnapping charge based on the statute of
limitations. On January 3, 2011, the state court granted Cotton’s amended post-conviction relief
motion and vacated his kidnapping sentence and conviction, leaving his sentences for forcible
rape and forcible sodomy unchanged. There was no appeal to the state motion court’s ruling.
On August 18, 2011, Cotton filed this § 2254 Petition, in which he claims: (1) he
received ineffective assistance of counsel because trial counsel failed to raise a statute of
limitations defense for the kidnapping charge at trial; (2) he received ineffective assistance of
counsel because trial counsel “ignored evidence that Petitioner and the alleged victim engaged in
a consensual sexual relationship which resulted in the victim’s being allowed to testify without
challenge that Petitioner committed the charged of[f]enses against her”; (3) he received
ineffective assistance of counsel because trial counsel failed to obtain the victim’s prior arrest or
conviction records for purposes of impeaching her; (4) he received ineffective assistance of
counsel because trial counsel failed to investigate the crime scene and the victim’s clothing to
determine whether it was possible for the crime to have occurred the way the victim alleged; and
(5) he received ineffective assistance of counsel because trial counsel failed to question the
victim about the information Petitioner disclosed to her.
Ground 1
In her report and recommendation, Judge Collins concluded that Ground 1 is moot
because the motion court already granted relief by vacating Cotton’s kidnapping conviction and
sentence. Cotton argues that Ground 1 is not moot because he did not receive the type of relief

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he sought: a new trial on all of his charges. In his objections, Cotton argues for the first time that
a new trial is warranted because the inclusion of the kidnapping charge at trial allowed otherwise
inadmissible evidence to be presented to the jury, which prejudiced the outcome of his entire
case. Cotton also alleges that the inclusion of the kidnapping charge at trial somehow removed
from the jury’s consideration whether he and the victim had consensual sex. Even if Cotton had
properly raised this argument in his habeas petition – which he did not – it would still be denied
as procedurally defaulted since it was not raised on appeal.1 As Cotton offers no grounds to
excuse the procedural default of this alleged claim, it is procedurally barred and does not entitle
him to any relief. Furthermore, Cotton’s argument that the inclusion of the kidnapping charge
prejudiced his entire trial is unsupported. As a result, I am overruling Cotton’s objection.
Grounds 2 through 5
In her report and recommendation, Judge Collins correctly determined that Grounds 2
through 5 of Cotton’s habeas petition, which raise ineffectiveness of trial counsel claims, were
procedurally defaulted because Cotton did not raise them in his amended motion for postconviction relief, nor did he raise them on appeal from the motion court’s ruling. Judge Collins
also correctly concluded that Cotton has failed to demonstrate cause or manifest injustice
sufficient to overcome the procedural default.

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A claim must be presented at each step of the judicial process in state court to avoid procedural
default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994). Cotton did not appeal the motion
court’s order vacating the kidnapping conviction and sentence. When appellate court review of a
post-conviction motion is available, as it was in Cotton’s case, failure to assert a claim in an
appeal operates as a procedural bar to consideration of such a claim by the federal courts.
Flieger v. Delo, 16 F.3d 878, 885 (1996). Furthermore, for a claim to be fairly presented to state
court, a habeas petitioner must assert the same factual grounds and legal theories in the state
court proceeding as he asserts in his federal habeas petition. Abdullah v. Groose, 75 F.3d 408,
411 (8th Cir. 1996). In state court, as in the instant habeas petition, Cotton never alleged that the
inclusion of the kidnapping charge at trial prejudiced the entire trial, and he never requested the
relief he seeks now.
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In his objections, Cotton argues for the first time that his post-conviction appellate
counsel was ineffective for failing to include Grounds 2 through 5 in his amended motion for
post-conviction relief, and that this ineffectiveness cures his procedural default under Martinez v.
Ryan, 132 S.Ct. 1309 (2012). In Martinez, the United States Supreme Court held:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding . . . counsel in that
proceeding was ineffective.
132 S.Ct. at 1320. The rule announced in Martinez, however, does not apply in cases such as
this one, where the default is not limited to the initial-review collateral proceeding. Id. at 1320
(noting that its holding “does not concern attorney errors in . . . appeals from initial-review
collateral proceedings”). Furthermore, even if Martinez did apply here, Grounds 2 through 5
would still fail because Cotton has not established that initial post-conviction counsel was
ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
Conclusion
I agree with Judge Collins’ recommendation that Cotton’s petition for habeas relief
should be denied. Cotton’s objections are overruled, and I adopt and sustain Judge Collins’
thorough reasoning in her Report and Recommendation.
I have also considered whether to issue a certificate of appealability based on the claims
raised in Cotton’s habeas petition. To grant a certificate of appealability, the Court must find a
substantial showing of the denial of a federal constitutional right. See Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable

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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) (citing Flieger v. Delo, 16
F.3d 878, 882-83 (8th Cir. 1994).
I believe that Cotton has not made such a showing on the grounds raised in his petition.
Therefore, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Marvin Cotton, Sr.’s Petition for Writ of
Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate judgment in accordance with this Memorandum and Order is entered this
same date.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September, 2014.

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