Smallwood v. Norman
OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Petition is DENIED.IT IS FURTHER ORDERED that this Court will not issue a Certificate ofAppealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 9/22/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:11CV1489 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the petition of Missouri state prisoner
Darryl Smallwood for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254,
[Doc. No. 1]. Petitioner has also filed an Amended Petition, [Doc. No. 12].
Respondent has filed a Response to order to show cause. Petitioner has filed a
reply. For the reasons set forth following the Petition will be denied.
On June 12, 2007, Petitioner was convicted by a jury in the Circuit Court of
At the time the Petition was filed, Petitioner was incarcerated in the Southeast
Correctional Center. Jeff Norman, the originally named respondent, is the Warden of that
location. Petitioner has been moved to the Northeast Correctional Center. Accordingly, James
Hurley, Warden of the Northeast Correctional Center, is Petitioner’s custodian and is the proper
All factual references are taken from the pleadings and exhibits filed in this
matter by the parties.
Missouri of trafficking in the second degree. Petitioner was sentenced to twenty
years imprisonment on July 23, 2007, as a prior, persistent offender. Petitioner
appealed the conviction, which was affirmed by the Eastern District Court of
Appeals for Missouri. Petitioner also filed a Rule 29.15 Motion for postconviction relief. The Motion was denied; Petitioner appealed this denial to the
Missouri Court of Appeals for the Eastern District.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of
judicial review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the 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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, 529 U.S. 362 (2000), held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams, 529 U.S. at 412-13. Furthermore, the Williams Court held that “a
federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” Williams, 529 U.S. at 409.
Grounds for Relief
As the bases for relief in his habeas corpus application, together with the
amended petition, Petitioner asserts as follows: in his original petition, Petitioner
claims that the motion court erred in failing to grant a hearing on his claim that
counsel was ineffective for failing to object to comments regarding petitioner’s
silence during his arrest. In his amended petition, Petitioner claims that counsel
was ineffective for failing to object to comments regarding Petitioner’s silence
during his arrest (Ground One and Amended Ground Two); in his original
petition, Petitioner claimed that trial counsel was ineffective for failing to object to
testimony from police officers that they were members of the Most Violent
Offender’s Gang Task Force and indicating that Petitioner was a member of a
gang. In his amended petition, Petitioner revises his claim to state that counsel
should have objected to testimony that the officers were members of the Most
Violent Offenders Unit. (Ground Two and Amended Ground One); in his original
Petition, Petitioner claims that there was no jurisdiction to proceed with his case
based on the lack of a probable cause to arrest. (Ground Three); in his original
Petition, Petitioner claimed that the State introduced evidence of prior bad acts for
which he had never been convicted. Petitioner alleges that counsel failed to object
to this evidence. In the Amended Petition, Petitioner claims that the State
improperly cross-examined him on his prior convictions by asking questions about
how his sentences in those cases compared to his possible sentence in this case.
(Ground Four and Amended Ground Five); in his original petition, petitioner
claimed that he was denied the right to present witness testimony when witness
was arrested in presence of the jury. Petitioner also refers to not being allowed to
confront the confidential informant. In his amended petition, petitioner claims that
the trial court improperly denied his request for a mistrial when the prosecutor
stated in front of the jury that Tacita Fair had a warrant for her arrest. Petitioner
also claims that the trial court erred in striking Laquida Smallwood as a witness
for late disclosure. (Ground Five, Amended Ground Three and Amended Ground
Four); Petitioner objects to the refusal of the trial court to allow the history of the
officer/witnesses to be presented to the jury. (Ground Six); Petitioner’s Amended
Ground Six claims that the state court was without jurisdiction when it sentenced
Petitioner to twenty years in prison in that he had no prior commitments to the
Missouri Department of Corrections. (Amended Ground Six).
Respondent asserts that all of Petitioner’s grounds for federal habeas relief
lack merit. Respondent also argues certain claims of the Petition and Amended
Petition are procedurally barred as they were not appropriately pursued in the State
Timeliness of Filing
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), there is a one-year statute of limitations when a state prisoner
petitions for federal habeas corpus relief. King v. Hobbs, 666 F.3d 1132, 1134-35
(8th Cir. 2012) (citing 28 U.S.C. § 2244(d)(1)). The statute of limitations begins to
run on “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” 28 U.S.C. §
The date on which judgment becomes final, and the statute of limitations
begins to run, differs based on the level of review sought by the petitioner. If the
petitioner sought review in the “state court of last resort,” then the Supreme Court
has jurisdiction to review the appeal and judgment will be considered final 90 days
after the conclusion of the direct criminal appeals in the state system. Id. (citing
Gonzalez, 132 S. Ct. at 656); see also Sup. Ct. R. 13.1; 28 U.S.C. § 1257(a). On
the other hand, should a state prisoner opt not to seek review in the “state court of
last resort,” then “the judgment becomes final on the date that the time for seeking
such review expires.” Id. (quoting Gonzalez, 132 S.Ct. at 646). Once judgment is
final, the statute of limitations begins to run. See 28 U.S.C. § 2244(d)(1)(A).
Respondent does not contend Petitioner is time barred.
One who pursues relief under 28 U.S.C. §2254(b)(1)(A) must exhaust the
remedies available in the courts of the State. In order to effectuate the fulfillment
of this requirement, “state prisoners must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process” before presenting those issues as application
for federal habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). “A federal habeas petitioner’s claims must rely on the same factual
and legal bases relied on in state court”; otherwise, they are defaulted.
Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006).
Exhaustion “refers only to remedies still available at the time of the federal
petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). Thus, “if it is clear that
[the habeas petitioner’s] claims are now procedurally barred under [state] law,” the
exhaustion requirement is satisfied. Castille v. Peoples, 489 U.S. 346, 351 (1989).
“[T]he procedural bar that gives rise to exhaustion provides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents federal
habeas corpus review of the defaulted claim, unless the petitioner can demonstrate
cause and prejudice for the default.” Gray v. Netherland, 518 U.S. 152, 161-62
In Missouri, “habeas corpus is not a substitute for appeal or post-conviction
proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc
1993). “Missouri law requires that a habeas petitioner bring any claim that a
conviction violates the federal or state constitution, including a claim of ineffective
assistance of counsel, in a motion for post-conviction relief.” Moore-El v. Luebbers,
446 F.3d 890, 896 (8th Cir. 2006). Accordingly, an offender who fails to raise his
claims on direct appeal or in a post-conviction motion has procedurally defaulted
those claims “and cannot raise [the waived claims] in a subsequent petition for
habeas corpus.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001).
Petitioner filed an appeal to the state appellate court, however, he did not raise
grounds Three, Four, parts of Ground Five, Ground Six and Amended Ground Six.
These claims are, therefore, procedurally barred.
There are circumstances where a court may nonetheless reach the merits of a
procedurally barred claim, but only if “the prisoner 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). In order
to satisfy the “cause” requirement, Petitioner must show that an “external”
impediment prevented him from presenting his claim to the state court in a
procedurally proper manner. Id. at 753.
In this case, Petitioner admits that he did not exhaust state remedies on
Grounds Three, Four, Five, Six and Amended Ground Six. Moreover, Petitioner
has failed to sufficiently establish cause and prejudice, or actual innocence. As
Respondent correctly argues, while it appears Petitioner is claiming ineffective
assistance of counsel as the cause for failure to preserve the claims, Petitioner must
have claimed ineffective assistance of counsel in the state court. Edwards v.
Carpenter, 529 U.S. 446, 450-54 (1999). Although not specifically delineated as
support for his failure to raise these issues, Petitioner has submitted the affidavits of
Laquida Smallwood and Careil Wright. The Wright Affidavit was filed with the
motion court and Petitioner did attempt to call Ms. Smallwood as a witness. Neither
affidavit can be considered “new evidence” of actual innocence since both affiants
were known to Petitioner prior to the finality of his state proceedings, and could
have been presented to the state courts. These claims are therefore procedurally
Ground One and Amended Ground Two3
Originally, Petitioner framed this claim as a challenge to the denial of an
evidentiary hearing. Under28 U.S.C. § 2254(a), a district court may only entertain a
petition for writ of habeas corpus if the Petitioner “is in custody in violation of the
Constitution or laws or treaties of the United States.” Grounds that do not state a
constitutional issue are not cognizable in a federal habeas petition. E.g. Gee v.
Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997). Whether the motion court ought to
The Court has followed Respondent’s organization and grouping of claims set out in his
Response to the Petition and the Amended Petition.
have held a motion hearing is purely a matter of state law. As a result, Petitioner is
not entitled to relief on ground nine of the petition. Ground One is denied.
In his Amended Ground Two, Petitioner claims that counsel was ineffective
for failing to object to comments regarding his silence during his arrest.
As outlined by Defendant, Officer Schwerb testified that he told Petitioner he
was under arrest for possession of a controlled substance. Petitioner made the
statement that he was tired of being harassed by the police. Officer Wolff testified
that Petitioner made the statement after Officer Schwerb had advised Petitioner of
his Miranda rightts.
The motion court found that the questioning of the officers regarding the
comment Petitioner made and whether he stated anything else was not improper
under the applicable law. The Missouri Appellate Court found that Petitioner’s
right to remain silent does not encompass the situation where a person, after having
been arrested and given his Miranda rights, voluntarily speaks. Petitioner relies on
Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Supreme Court held that after
having advised a defendant of his Miranda rights, it is impermissible to use the
silence to impeach the defendant. If the defendant, however, voluntarily speaks
after the warnings, his statements and lack of any other statements is subject to
inquiry. Anderson v. Charles, 447 U.S. 404, 408-09 (1980). Accordingly, the State
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Court ruling allowing inquiry on Petitioner’s statement and lack of other statements
was not contrary to the constitution or Federal law. Because an objection would
have been meritless, it was not ineffective assistance of counsel in failing to object
to the questioning. Ground One and Amended Ground Two are denied.
Ground Two and Amended Ground One
Petitioner claims it was ineffective for trial counsel to fail to object to
testimony from the police officers that they were members of the Most Violent
Offender’s Task Force. Plaintiff argues that by implication, he was one of the
offenders sought by the officers. Petitioner argues that the testimony resulted in
allowing the State to submit evidence of uncharged crimes, wrongs or acts allegedly
committed by the accused to establish his propensity to commit such crimes.
Contrary to Petitioner’s belief, the Appellate Court found that the testimony was
merely a description of their work assignment. It had no association with Petitioner
or his propensity to be one of the most violent offenders. Moreover, the Court
observed that Petitioner testified to his prior criminal history which included
weapon and drug charges. As such, the Court found that Petitioner could not
establish that counsel was ineffective for failing to object to the question because an
objection would not have been meritorious, nor was Petitioner able to establish that
he was denied a fair trial.
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In the habeas context, questions regarding admissibility of evidence are
matters of state law. Garcia v. Mathes, 474 F.3d 1014, 1017 (8th Cir.2007).
Evidentiary errors at a state trial will form the basis for federal habeas relief only if
the state court's rulings “infringe on a specific constitutional protection or are so
prejudicial as to amount to a denial of due process.” Id. The State Court’s
determination that the evidence presented by the officers regarding their work
assignment was admissible falls outside the confines of habeas relief. Petitioner has
failed to establish that this ruling infringed on a specific constitutional protection.
In addition, because of Petitioner’s testimony regarding his criminal history, the
testimony was not so prejudicial as to deny Petitioner due process. Ground Two
and Amended Ground One are denied.
Amended Ground Five
Petitioner claims that the state improperly cross-examined him on his prior
convictions. Petitioner claims that the cross-examination of the sentences he
received on his prior convictions delved too deeply into those convictions to
establish that the reason petitioner was testifying was because he feared a harsher
The State Appellate Court concluded that the trial Court’s admission of the
prior conviction and sentence testimony was not an abuse of discretion because it
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was within the confines of Section 491.050, which allows for evidence of prior
convictions to affect a person’s credibility. The trial Court found that the cross
examination was proper based on bias. The prosecutor did not go into details of the
crimes or dwell on the prior convictions.
As a matter of state evidence law, petitioner must establish the state court's
rulings “infringe on a specific constitutional protection or are so prejudicial as to
amount to a denial of due process.” Id. The State Appellate Court’s finding that the
admission was proper under Section 491.050 is a matter of state law which does not
rise to the level of habeas relief. 28 U.S.C. § 2254. See Dowling v. United States,
493 U.S. 342 (1989). Amended Ground Five is denied.
Ground Five, Amended Ground Three and Amended Ground Four
Petitioner claims that a mistrial should have been granted by reason of the
fact that the prosecutor stated in the presence of the jury that Witness Fair had a
warrant for her arrest. Petitioner also claims the trial court erred when he would not
allow Laquida Smallwood to testify as a witness because of the late disclosure of
Ms. Smallwood. Petitioner also seeks relief for failure to call the confidential
informant that tipped off the police.
The Supreme Court has upheld the exclusion of a witness for failure to timely
disclose. Taylor v. Illinois, 484 U.S. 400-410-16 (1988). Thus, the rulings of the
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state court to exclude Ms. Smallwood’s testimony is not contrary to or an
unreasonable application of established federal law.
With respect to Ms. Fair, although the trial court stated that it would give a
limiting instruction regarding the comment, none was given. The state courts found
that this failure did not warrant a mistrial. Improperly admitted evidence must have
had a substantial and injurious effect or influence in determining the verdict. Fry v.
Pliler, 551 U.S. 112 (2007). Based on the totality of the evidence, raising the issue
in front of the jury did not rise to the level of substantial and an injurious effect or
influence on the jury.
Regarding Petitioner’s claim that the confidential informant should have been
called to testify, Respondent is correct that there is no suggestion that the
confidential informant was present at the time of Petitioner’s arrest. The basis for
the arrest was what the officers observed and the outstanding warrant for
Petitioner’s arrest. The officers were present and testified. They were subject to
cross examination by Petitioner. Petitioner’s claim is without merit. Grounds Five,
Amended Ground Three and Amended Ground Four are denied.
Several of Petitioner’s grounds for relief are procedurally barred. Petitioner
has failed to establish cause and prejudice for the failure to exhaust these claims.
Those claims which have been exhausted through the state system are without merit.
Thus, Petitioner is entitled to no relief
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Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
substantial showing of the denial of a constitutional right requires 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). This Court finds that Petitioner has not made a substantial showing of the
denial of a constitutional right. A Certificate of Appealability will therefore not be
IT IS HEREBY ORDERED that the Petition is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 22nd day of September, 2014.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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