Lanning v. Steele

Filing 20

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the petition for writ of habeas corpus [# 1 ] is denied. IT IS FURTHER ORDERED that this court will not issue a certificate of appealability. A separate judgment in accord with this order is entered today. Signed by District Judge Catherine D. Perry on 06/17/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE LANNING,
Petitioner,
vs.
TROY STEELE,
Respondent.

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Case No. 4:11CV1467 CDP

MEMORANDUM AND ORDER
Petitioner George R. Lanning is incarcerated at Southeast Correctional
Center in Charleston, Missouri.1 Lanning was convicted by a jury in the Circuit
Court of St. Charles County, Missouri, of one count of first degree statutory
sodomy and four counts of first degree child molestation. The court sentenced him
to life plus a consecutive term of sixty years of imprisonment.
This matter is before the Court on Lanning‟s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Lanning raises seven grounds for relief.
Five of those grounds are procedurally defaulted, and the other two grounds fail on
the merits. Therefore I will deny his habeas petition.

I. Factual Background
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At the time he filed his petition, Lanning was incarcerated at the Potosi Correctional Center in
Mineral Point, Missouri.

On August 8, 2005, George Lanning picked up his then nine-year-old
granddaughter, A.L., to spend the night, which she did frequently. Later that
evening A.L.‟s mother, Windy Lanning, brought over her daughter‟s medication
that had been left at home. At the time Windy arrived, Lanning was intoxicated.
A.L. was upstairs crying in Lanning‟s bed and said she wanted to go home. When
they went downstairs, A.L. told Windy that Lanning touches her. Windy took her
daughter home and brought her to a hospital for examination three days later.
A.L. disclosed to investigators that on several occurrences between March 1,
2005 and August 8, 2005 Lanning touched her genitals and anus with his hands
and penis, touched her chest with his hand and tongue, and had A.L. touch his
penis with her hand. In a search of Lanning‟s home, investigators found the
clothes A.L. had worn to Lanning‟s on August 8th, several bottles of baby oil,
Vaseline, lubricating jelly, a box of condoms, a pornographic movie, and a
pornographic book with a picture of the victim stuck in it like a bookmark.
Lanning‟s bed sheets contained Lanning‟s semen stains and unknown fecal stains.
The victim showed no signs of genital trauma, but did have bruising on her arm.
II. Procedural Background
Lanning was charged on all counts. Before trial, the State offered Lanning a
15-year sentence if he pled guilty. Lanning rejected the plea offer and went to
trial. After his conviction by a jury, Lanning was sentenced to life imprisonment
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for the statutory sodomy count and fifteen-year imprisonment terms for each of the
four counts of first degree child molestation, all to be served consecutively.
Lanning appealed his conviction to the Missouri Court of Appeals, arguing
that the trial court erred and abused its discretion in admitting the affidavit of
Windy‟s drug test, the trial court abused its discretion in denying him access to
hotline reports, and the court made errors in the jury instructions. The Court of
Appeals affirmed Lanning‟s convictions. State v. Lanning, No. ED88586, 238
S.W.3d 737 (Mo. App. E.D. November 13, 2007) (unreported opinion, Resp. Exh.
G).
Lanning then filed a pro se motion for post-conviction relief under Missouri
Supreme Court Rule 29.15. Appointed counsel filed an amended motion on
August 31, 2009. Lanning claimed that his trial counsel was ineffective for failing
(1) to impeach Windy‟s testimony relating to why she submitted to a drug test and
delayed transporting the victim to a hospital for three days after learning of the
sexual abuse, (2) to object to the Movant‟s leg restraint in the courtroom, (3) to
object to the courtroom‟s being arranged so that he could not see the witnesses
testifying against him, and (4) to call Deputy Eric Schlueter to testify that Windy
Lanning frequently made false allegations and was a heavy drug user. The motion
court reviewed Lanning‟s amended motion on the merits and denied relief without
a hearing in an Order dated November 24, 2009. (Resp. Exh. I, p. 53-63).
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Lanning appealed the denial of his motion for post-conviction relief to the
Missouri Court of Appeals. Lanning asserted that the court erred in denying the
motion without an evidentiary hearing because he alleged facts not conclusively
refuted by the record, which, if proven, showed his trial counsel was ineffective.
The Court of Appeals affirmed the denial of post-conviction relief, finding the
claims of error without merit. (Resp. Exh. M).
III. Grounds Raised
Lanning now seeks federal habeas corpus relief. He asserts the following grounds:
(1) He is actually innocent of the crimes he was charged with;
(2) His right to due process was violated when the trial court failed to sua
sponte declare a mistrial when it discovered that the jury did not hear the
victim‟s testimony during trial and failed to give the jury a transcript of the
victim‟s recorded statements during deliberations;
(3) His right to due process was violated when the trial court stated to the
jury during voir dire: “After all that little girl has been through, if it makes
her more comfortable by holding a bunny rabbit on her lap during her
testimony... it‟s ok”;
(4) He received ineffective assistance of trial counsel because counsel failed:
a) to investigate Windy Lanning‟s history of drug use and failed to
properly impeach her trial testimony regarding a drug test and
transportation problems;
b) to investigate a phone call made to counsel by Deputy Eric
Schlueter which informed counsel of Windy‟s past history of false
allegations and drug use and to call Deputy Schlueter to testify at trial;
and

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c) to file a Motion in Limine to exclude any pre-trial statements
Lanning had made to Detective Corley because he had not been given
a Miranda warning prior to making those statements;
(5) He received ineffective assistance of counsel during direct appeal
because counsel failed:
a) to properly present a claim regarding the Trial Court‟s failure to
provide a file to the defense after an in-camera review; and
b) to raise claims 1,2,3, and 7 during the direct appeal process;
(6) The motion court erred in denying his Rule 29.15 motion without an
evidentiary hearing because he presented facts that were not conclusively
refuted by the record;
(7) The prosecuting attorney retaliated against him by seeking a life sentence
plus sixty years because he exercised his right to a jury trial instead of
choosing a plea agreement.
IV. Discussion
Procedural Bar: Grounds 2, 3, 4(b), 4(c), 5(a), 7
To obtain federal habeas relief, 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). To satisfy the “fairly presented”
requirement, a prisoner must “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” in the state court. Abdullah v.
Groose, 75 F.3d 408, 412 (8th Cir. 1996). A claim presented to the state court that
is “merely similar” to the federal habeas corpus claim fails the “fairly presented”
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requirement. Id. Failure “„to follow applicable state procedural rules [for] raising
the claims‟” is a procedural default which prevents the state prisoner from raising
those claims in a federal habeas action even if he had exhausted state-court
remedies. Id. at 1151 (quoting Sawyer v. Whitley, 505 U.S. 333, 338 (1992)).
A state prisoner can overcome his procedural default only if he can
“demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991).
To demonstrate cause, a petitioner must show that “some objective factor
external to the defense impeded [the prisoner‟s] efforts to comply with the State‟s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Such objective
factors include “showing that the factual or legal basis for a claim was not
reasonably available to counsel … or that … some interference by officials,” made
compliance impracticable. Id. (quoting Brown v. Allen, 344 U.S. 443, 486
(1953)). In most instances, negligence on the part of a prisoner's post-conviction
attorney does not qualify as cause, and prisoners are bound to the actions and
inactions of their counsel. Coleman, 501 U.S. at 753. See also Sweet, 125 F.3d at
752–54. But in some circumstances a habeas petitioner may be able to show cause
for failure to raise a claim of ineffective assistance of trial counsel if he can show
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that post-conviction counsel was ineffective for failing to raise the claim. See
Trevino v. Thaler, 133 S.Ct. 1911 (2013); Martinez v. Ryan, 132 S.Ct. 1309
(2012). To establish actual prejudice, a petitioner must demonstrate that the errors
“worked to his actual and substantial disadvantage, infecting the entire trial with
error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170
(1982).
If a petitioner cannot establish cause and actual prejudice, he must show
actual innocence to assert the fundamental miscarriage of justice exception to the
procedural bar. Schlup v. Delo, 513 U.S. 298, 321 (1995); see also House v. Bell,
547 U.S. 518 (2006); McQuiggin v. Perkins, 133 S.Ct. 1924 ( 2013). To meet this
stringent test, the petitioner must present new evidence of innocence. Schlup, 513
U.S. at 316. Such a claim is only reviewable if a petitioner presents “evidence of
innocence so strong that a court cannot have confidence in the outcome of the
trial” and that the trial was free of harmful constitutional error. Id.
Lanning failed to raise grounds 2, 3, 4(b), 4(c), 5(a), and 7 in the appropriate
state-court proceedings. Because he has failed to show cause and prejudice or that
he is entitled to the fundamental miscarriage of justice exception, he is
procedurally barred from obtaining habeas relief on these claims in federal court.
In Ground 2 Lanning claims that his due process rights were violated when
the judge failed to give the jury a transcript of the victim‟s recorded statements
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during deliberations. In Ground 3, Lanning argues that his due process rights were
violated by the trial court‟s making a prejudicial statement to the jury. In Ground
7, Lanning claims that the prosecutor retaliated against him by seeking a more
severe sentence because Lanning forwent a plea bargain offer to be tried by a jury.
None of these claims were raised in either his direct appeal or in his postconviction relief motion. Lanning has not provided any reason for failing to raise
these claims, and so he has failed to show any cause and prejudice to excuse the
default.
Grounds 4(b) and 4(a) are claims of ineffective assistance of trial counsel.
In 4(b) Lanning claims trial counsel was ineffective because she failed to
investigate and call Deputy Eric Schlueter as a witness, and in 4(c) he claims she
was ineffective because she failed to file a motion in limine seeking to exclude his
pretrial statements on grounds that he was not given Miranda warnings. Lanning
actually raised 4(b) in his amended post-conviction relief motion, but he did not
raise it on his appeal from the denial of that motion. His failure to appeal is a
procedural default, and he has not shown any cause or prejudice to excuse the
default.
Lanning did not raise claim 4(c), about his statements, either on direct
appeal or in his post-conviction motion. Although Martinez allows the
ineffectiveness of post-conviction counsel to be considered cause in some
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circumstances, Lanning cannot benefit from that exception. Lanning was not in
custody when he made the statements; in fact, the authorities did not know where
he was when they talked to him on the telephone. He was not prejudiced by postconviction counsel‟s failure to raise this meritless claim.
In Ground 5(a), Lanning claims his direct appeal counsel was ineffective for
failing to provide a Department of Family Services file to Lanning after an in
camera review. While Lanning did raise this issue in his post-conviction motion,
he defaulted on this claim by failing to raise it on his appeal from the denial of that
motion. He has not shown cause or prejudice that would excuse this default.
To the extent Lanning may attempt to argue that he is actually innocent and
that the fundamental miscarriage of justice exception should allow this court to
consider these defaulted claims, the argument fails. The claim of actual innocence
that will establish a fundamental miscarriage of justice must be based on new
evidence. See Schlup, 513 U.S. at 316; see also House v. Bell, 547 U.S. 518, 537
(2006) (“to be credible a gateway claim requires new reliable evidence . . . that was
not presented at trial”); Kidd v. Norman, 651 F.3d 947, 951-52 (8th Cir. 2011).
Lanning‟s actual innocence argument cannot support this exception because it is
not based on newly discovered evidence: instead Lanning merely asserts that the
evidence that was presented at trial does not support his conviction. Lanning fails

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to present any new evidence of his innocence, and these claims are all procedurally
barred from federal habeas review.
Remaining Claims
Under section (d) of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, when a claim has been adjudicated on the
merits in state court, an application for a writ of habeas corpus shall not be granted
unless the state court adjudication:
(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).
In Shafer v. Bowersox, the Eighth Circuit articulated the standards for
subsection (1) as follows:
The “contrary to” clause is satisfied if a state court has arrived “at a
conclusion opposite to that reached by [the Supreme Court] on a question of
law” or “confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent” but arrives at the opposite result. A state court
“unreasonably applies” clearly established federal law when it “identifies the
correct governing legal principle from [the Supreme] Court‟s decisions but
unreasonably applies that principle to the facts of the prisoner‟s case.” A

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case cannot be overturned merely because it incorrectly applies federal law,
for the application must also be “unreasonable.”
329 F.3d 637, 646-47 (8th Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362,
405, 411, 413 (2000)).
Under subsection (2), “a 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 (quoting 28 U.S.C. § 2254(d)(2)) (citing 28
U.S.C. § 2254(e)(1); Boyd v. Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001)).
Ground 1—Actual Innocence
Although Lanning did not raise this claim before the state courts, respondent
has addressed it on the merits, and so I will also. Respondent argues that
Lanning‟s claim of actual innocence is non-cognizable in a federal habeas petition
because it is solely a state law claim, relying on Herrera v. Collins, 506 U.S. 390,
401 (1993), which pointed out that free-standing claims of actual innocence based
on newly discovered evidence have never been held to be an independent basis for
federal habeas relief. More recently, in McQuiggin v. Perkins, the Supreme Court
described the law as unresolved: “We have not resolved whether a prisoner may
be entitled to habeas relief based on a freestanding claim of actual innocence.” 133
S.Ct. at 1931. Where, as here, a petitioner is not arguing actual innocence based
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on newly discovered evidence, he is really only making a sufficiency of the
evidence claim, which should be analyzed under the standard of Jackson v.
Virginia, 443 U.S. 307 (1979). Under Jackson, a petitioner “is entitled to habeas
corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
Id. at 324. “All conflicting inferences that arise from the historical facts must be
resolved in favor of the prosecution.” Nance v. Norris, 392 F.3d 284, 290 (8th Cir.
2004).
There was more than sufficient evidence to convict Lanning of the crime.
As summarized in the Factual Background set out above, testimony established
that the victim had been molested by defendant. In addition to the testimony of the
victim, which was entirely consistent with her previous statements to several
others, and testimony from others about the circumstances surrounding their
discovery of the abuse, the jury heard testimony about phone calls defendant made
to the police while he had left the jurisdiction. The jury was read a transcript of
one of the calls, in which defendant gave rambling and conflicting explanations
about how Windy Lanning was trying to set him up. He talked at length about
Windy‟s bad behavior, and also described his discussions with the child victim
about sex and reproduction. The direct testimony of the victim, corroborated by
the evidence surrounding the discovery of the abuse and the victim‟s previous
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statements were sufficient for the jury to convict the defendant. But when
defendant‟s own inconsistent and incredible statements to police are added in, the
jury had more than sufficient evidence on which to find defendant guilty.
Ground 6 – Denial of Post-Conviction Hearing
In Ground 6, Lanning argues that the Post-Conviction Relief court erred in
denying him an evidentiary hearing. This claim implicates no federal law, as
Missouri Supreme Court Rule 29.15(h) governs whether a hearing should be
granted for post-conviction relief. Mo. Sup. Ct. R. 29.15. Lanning‟s claim
involves a violation of a Missouri post-conviction rule, which is “an area in which
a defendant is not necessarily afforded constitutional protections.” See Smith v.
Lockhart, 882 F.2d 331,334 (8th Cir. 1989). Since this is strictly a matter of state
law, it is not cognizable for habeas corpus review.
Grounds 4(a) and 5: Ineffective assistance of counsel
In Ground 4(a) Lanning argues that trial counsel was ineffective in crossexamining witness Windy Lanning. In Ground 5 he argues that appellate counsel
was ineffective in failing to raise certain claims on appeal.
To establish a claim of ineffective assistance of counsel, a petitioner first
“must establish that counsel's performance was deficient” and that the performance
“fell below an objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 687-88 (1984). There is a “strong presumption that counsel‟s
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conduct falls within the wide range of reasonable professional assistance” and
judges must be highly deferential to counsel‟s performance. Id. at 689.
Thoroughly investigated strategic choices are “virtually unchallengeable” and
decisions made after a less thorough investigation should be upheld to the extent
that they are supported by reasonable judgment. Id. at 690-691.
A petitioner alleging ineffective assistance of counsel must also show that he
or she was actually prejudiced by counsel‟s deficiencies. Id. at 687. “This requires
showing that counsel‟s errors were so serious as to deprive the defendant of a fair
trial…” Id. To satisfy this element, a 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.” Id. at 694.
In Ground 4(a), Lanning argues that his trial counsel should have crossexamined Windy Lanning more thoroughly about her drug use, why she took a
drug test, and why she waited three days to take the victim to the hospital. Both
the post-conviction motion court and the Missouri Court of Appeals rejected this
claim and found that counsel effectively cross-examined Windy. The Court of
Appeals noted that counsel had, in fact, cross-examined Windy about her claim
that she lacked transportation. It also rejected the argument about her drug use
because Lanning had not established what her answers would have been or that the
answers would have provided him with any viable defense. The Court of Appeals
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found that counsel‟s actions were reasonable trial strategy. The post-conviction
motion court, in its findings of fact, pointed out that counsel strategically attacked
the State‟s case on issues they did not address during cross-examination. See Resp.
Exh. I, p 57-59.
These conclusions were not contrary to federal law or an unreasonable
determination of the facts. Counsel used Windy‟s history of making false reports,
delayed transportation to the hospital, and missed interviews with the Child
Advocacy Center to argue against her credibility in closing arguments. Though
there were alternative strategies available to counsel at trial, counsel‟s choice to
combat Windy‟s credibility in closing arguments rather than through crossexamination must be given great deference. Such a strategic decision is not
ineffective assistance of counsel. Additionally, Lanning fails to show any
reasonable probability that the result of the proceeding would have changed absent
counsel‟s errors. Therefore, trial counsel was not ineffective on these grounds.
In Ground 5(b), Lanning alleges he received ineffective assistance from his
direct appeal counsel because they failed to raise claims one, two, three, and seven
on direct appeal, which, as noted above, Lanning defaulted on. Counsel cannot be
ineffective for failing to raise meritless claims. Thai v. Mapes, 412 F.3d 970, 979
(8th Cir. 2005). None of these claims have merit, so counsel is not ineffective for
failing to raise them on direct appeal.
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As discussed above, there was more than sufficient evidence from which a
jury could find defendant guilty, so appellate counsel‟s failure to raise Ground 1
was not ineffective. And there is no evidence in the record to support the factual
basis of either Grounds 2 and 3 – that the jury could not hear the victim or that the
court made the statement about all the victim had gone through. Although the jury
was not provided a transcript, it was allowed to view the victim‟s video-taped
statement during deliberations. Lanning cannot show that either of these claims
had any likelihood of being successful on appeal, and he has not shown that
appellate counsel was ineffective for failing to raise them.
Lanning also claims that counsel was ineffective for failing to raise on
Ground 7 on appeal. Ground 7 alleges prosecutorial misconduct. Lanning claims
that the prosecutor‟s recommendation of life plus sixty years was retaliatory when
a pre-sentence investigation report recommended a sentence of fifteen years and
the plea bargain offered to Lanning was fifteen years. Lanning contends that the
longer sentence serves as punishment for exercising his right to a jury trial.
Certainly, it is unconstitutional for a state actor to punish a person for exercising
his legal rights. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). However, in
the „give-and-take‟ of plea bargaining, there is no such element of punishment or
retaliation so long as the accused is free to accept or reject the prosecution's offer.”
Id. at 363. A petitioner must establish that he was not free to accept or reject the
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plea offer to establish a constitutional claim. Despite the difference between the
plea offer and the prescribed sentence, Lanning has not provided any evidence
showing that he was not free to accept or reject the offer. The claim of
prosecutorial misconduct has no merit, and counsel was not ineffective for failing
to appeal a meritless claim.
V. Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order in a § 2254 proceeding unless a circuit justice or judge issues a
Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a
certificate, the justice or judge must find a substantial showing of the denial of a
federal constitutional right. Id. § 2253(c)(2); see Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). A substantial 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). I find that
reasonable jurists could not differ on any of Lanning‟s claims, so I will deny a
Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petition for writ of habeas corpus [#1]
is denied.

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IT IS FURTHER ORDERED that this court will not issue a certificate of
appealability.
A separate judgment in accord with this order is entered today.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 17th day of June, 2013.

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