Herrod v. Steele
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that, in accordance with the foregoing, Petitioners Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. No. 1) is DENIED, and his claims are DISMISSED with prejud ice. A separate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that, because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. 1 Signed by District Judge Jean C. Hamilton on 4/4/13. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
VESTOR C. HERROD,
Case No. 4:11-CV-01491
MEMORANDUM AND ORDER
Petitioner Vestor Herrod is currently incarcerated in the Potosi Correctional Center in
Mineral Point, Missouri. Petitioner was convicted by a jury in the Circuit Court of the City of St.
Louis, Missouri, of forcible rape, attempted forcible sodomy, and first-degree burglary.
This matter is before the Court on Herrod’s petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner raises eleven grounds for relief. By Order dated December 7, 2011,
the Court ruled that eight of these grounds for relief have been procedurally defaulted by Petitioner.
(Doc. No. 12.) Because the remaining three grounds for relief are without merit, Herrod’s petition
for the writ will be denied, for the reasons discussed below.
The charges against Petitioner arose from events that occurred on July 12, 2006. M.G. had
just returned home and was unlocking her front door, when she was approached by Petitioner, who
asked about cutting her lawn. M.G. said no because she did not have any money. Petitioner offered
to cut the lawn for free. While Petitioner was mowing the lawn, M.G. went to her bedroom to
answer the telephone. Shortly thereafter, Petitioner entered the house and asked M.G. if he could
wash his hands. M.G. said yes, and Petitioner went into the bathroom to wash his hands. He then
came into M.G.’s bedroom and shut the door behind him.
Petitioner knocked M.G. down, onto a couch. He stood over her, pulled out his penis, and
tried to stick his penis into her mouth. M.G. kept her mouth closed and steered her head away from
him. Petitioner than removed M.G.’s shorts and forced her to have sexual intercourse.
After Petitioner left, M.G. called her sister and the police for help. She went to the hospital
for a rape kit. Jeanne Sanders, a registered nurse, performed the exam and collected the evidence
in the rape kit. Sanders testified that she collected the shirt and shorts that M.G. was wearing.
Sanders did not observe any bruises or injuries on M.G. But, in Sanders’ experience, it was not
uncommon for a victim to be uninjured. Sanders testified that the attending physician, Dr. Peggy
Petralia, noted in the medical report that there were no external or internal lesions.
Police seized a beer can and cigarettes lying on the floor from M.G.’s bedroom. DNA
consistent with Petitioner’s was found on one of the cigarettes and on the rim of the beer can. DNA
consistent with Petitioner was also found on a swab taken from M.G.’s face.
Several weeks later, Petitioner returned to M.G.’s house, and M.G.’s niece answered the
door. Petitioner told her that he wanted to cut the grass. When M.G. looked out the window and
saw Petitioner, she called the police. M.G.’s niece and nephew kept Petitioner occupied until the
police arrived and arrested him.
On August 10, 2006, Petitioner was charged with forcible rape, attempted forcible sodomy,
and first-degree burglary. The jury found Petitioner guilty on all three counts. On August 22, 2008,
the trial court sentenced Petitioner to 25 years on the forcible rape conviction, 20 years on the
attempted forcible sodomy conviction (to run concurrently with the sentence for forcible rape), and
14 years on the burglary conviction (to run consecutively with the other sentences).
Petitioner appealed his conviction to the Missouri Court of Appeals, arguing that: (1) the
trial court erred in denying his request for a mistrial after the prosecutor improperly personalized
closing argument to the jury; (2) the trial court erred in denying his request for a mistrial after
Detective Karon Crocker testified that Petitioner had provided no statement to the police; and (3)
he was denied his constitutional and statutory rights to a speedy trial and thus the trial court erred
in denying his motion to dismiss the charges against him on this basis. The Missouri Court of
Appeals affirmed the conviction in a per curiam unpublished opinion on October 13, 2009.
On December 1, 2009, Petitioner filed a pro se motion in the trial court for post-conviction
relief under Missouri Rule 29.15. Petitioner asserted two claims of ineffective assistance of counsel,
contending that: (1) his appellate counsel failed to challenge the sufficiency of the evidence of his
burglary conviction on appeal and (2) his trial counsel failed to subpoena and call Dr. Petralia at trial.
The motion court, after an evidentiary hearing, denied Petitioner’s motion on August 26, 2010.
Petitioner appealed the denial of his motion to the Missouri Court of Appeals, asserting the
same claims of ineffective assistance of counsel. The appellate court affirmed the motion court’s
ruling in a per curiam unpublished opinion on October 11, 2011.
Petitioner now seeks federal habeas corpus relief, contending that: (1) the trial court erred
in denying his motion to dismiss for violation of his right to a speedy trial; (2) the trial court erred
in denying his motion for a mistrial when Detective Karon Crocker testified that Petitioner had not
provided a statement to the police; and (3) the trial court erred in denying his motion for a mistrial
when the prosecutor improperly personalized his closing argument, stating, “Imagine when you have
a man you don’t know on top of you, holding you down, putting his penis in your vagina. ... Imagine
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) strictly limits a federal
court’s power to review habeas petitions brought by state-court prisoners. “Pursuant to [AEDPA],
when a state prisoner files a petition for writ of habeas corpus in federal court [the court is] directed
to undertake only a limited and deferential review of underlying state court decisions.” Mark v. Ault,
498 F.3d 775, 782-83 (8th Cir. 2007) (quotations omitted). “As the Supreme Court has stated,
‘[AEDPA] modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas retrials and to ensure that state-court convictions are given effect to the
extent possible under law.’” Id. at 783 (quoting Bell v. Cone, 535 U.S. 685, 692, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002)). Given these considerations, an application for habeas corpus
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 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 ....
28 U.S.C. § 2254(d). “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 Supreme] Court on a question
of law or ... decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000). “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 Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct.
1495. “The question under AEDPA is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).
Petitioner was arrested on August 10, 2006, on which date he was incarcerated and unable
to make bond. Trial commenced over 18 months later, on February 19, 2008. Petitioner requested,
and was granted, two continuances constituting, together, approximately six months of the delay in
The Missouri Court of Appeals found the remaining delay attributable to the
State—approximately 12 months—presumptively prejudicial under Missouri law and, accordingly,
proceeded to analyze the matter under federal law to determine, inter alia, whether the delay
constituted actual prejudice. See Herrod v. State, No. ED-91879, Slip Op. at 11-12 (Mo. Ct. App.
Oct. 13, 2009).
In denying Petitioner’s speedy trial claim, the Missouri Court of Appeals relied on the
analysis of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker,
the Supreme Court explained that speedy trial cases are to be evaluated by a balancing test “that
necessarily compels courts to approach speedy trial cases on an ad hoc basis.” Id. at 529, 92 S.Ct.
2182. Barker identified four factors that figure prominently in this inquiry: “[l]ength of delay, the
reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id.
Prejudice to a criminal defendant, under Barker, means “actual prejudice,” unless the pretrial delay
is “grossly excessive.” Rashad v. Walsh, 300 F.3d 27, 41 (1st Cir. 2002) (citing United States v.
Aguirre, 994 F.2d 1454, 1458 (9th Cir. 1993)) (delay of five years and eight months between
indictment and trial did not violate petitioner’s speedy trial right).
After finding presumptive prejudice under Missouri law, it was proper for the Missouri Court
of Appeals to engage in a Barker analysis, as “presumptive prejudice cannot alone carry a Sixth
Amendment claim without regard to the other Barker criteria ....” Doggett v. United States, 505 U.S.
647, 656, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (citing United States v. Loud Hawk, 474 U.S. 302,
315, 106 S.Ct. 648, 654, 88 L.Ed.2d 640 (1986)). The Missouri Court of Appeals concluded,
ultimately, that Petitioner’s speedy trial claim failed because he “did not present evidence of actual
prejudice.” Herrod, Slip Op. at 17 (Mo. Ct. App. Oct. 13, 2009). The state court’s decision was
neither contrary to nor an unreasonable application of federal law.
The state court correctly identified the Supreme Court precedent governing the issue, and the
Supreme Court has not “decide[d] a case differently ... on a set of materially indistinguishable facts.”
Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. Furthermore, the state court decision was not an
unreasonable application of the relevant precedent. Because the Barker standard is a general, multifactor standard, “a state court has even more latitude to reasonably determine that a defendant has
not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d
251 (2009); see also Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938
(2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-bycase determinations.”).
“A showing of prejudice is required to establish a violation of the Sixth Amendment Speedy
Trial Clause, and that necessary ingredient is entirely missing here.” Reed v. Farley, 512 U.S. 339,
353, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). Petitioner made only generalized claims that delays
caused him anxiety and rendered him unable to work—claims insufficient to make the required
showing of prejudice. See, e.g., U.S. v. McGhee, 532 F.3d 733, 740 (8th Cir. 2008) (citing cases)
(“although anxiety and concern are present in every case, this alone does not demonstrate
prejudice”). Notably, Petitioner did not claim that his defense was impaired by the delay, but rather
conceded before the Missouri Court of Appeals that he “does not assert that he could prove his
defense has been impaired, or that witnesses have disappeared or became otherwise unavailable.”
Herrod, Slip Op. at 16; see also Doggett, 505 U.S. at 655, 112 S.Ct. 2686 (actual prejudice would
not be present where the defendant “failed to make any affirmative showing that the delay weakened
his ability to raise specific defenses, elicit specific testimony, or produce specific items of
evidence”); West v. Symdon, 689 F.3d 749, 753 (7th Cir. 2012) (noting the possibility that the
defense will be impaired is the most significant inquiry under Barker because the fairness of the
proceedings is undermined by an inadequately prepared criminal defendant).
Petitioner did claim that the delay allowed the prosecution to develop incriminating DNA
evidence against him. Indeed, much of the delay was due to the case’s complexity and, in connection
therewith, the crime lab’s backlog in processing DNA evidence. But, as the Missouri Court of
Appeals explained: “The defendant fails to recognize ... that this DNA evidence could very well
have been exculpatory. The fact that the results proved favorable to the State and not the defendant
is not grounds upon which to base a finding of prejudice.” Herrod, Slip Op. at 16; cf. also Brown
v. Bobby, 656 F.3d 325, 334 (6th Cir. 2011), cert. denied, --- S.Ct ----, 2013 WL 656045 (U.S. Feb.
25, 2013) (finding reasonable state court’s attribution of some portion of “reasonable delay” under
Barker to habeas petitioner because “[c]onsidering [that the] DNA evidence could have vindicated
[petitioner], he certainly had an interest in its being completed”).
Petitioner’s failure to show prejudice prevents the Court from holding that the state court’s
speedy trial analysis was an unreasonable application of the Sixth Amendment right to a speedy trial.
See, e.g., United States v. Shepard, 462 F.3d 847, 864-65 (8th Cir. 2006) (17-month delay not a
speedy trial violation where the defendant, among other deficiencies, failed to show prejudice to his
case); United States v. Brown, 325 F.3d 1032, 1034-35 (8th Cir. 2003) (three-year delay did not
relieve defendant of the requirement of showing prejudice). This ground for relief, accordingly, fails.
Detective Crocker’s Testimony
The crux of Petitioner’s complaint regarding Detective Crocker’s testimony arises from her
answer to a question regarding what she did after receiving statements from the victim and the
victim’s niece. Detective Crocker answered: “The defendant was booked for the charges and
provided no statement to me. He was processed.” Herrod, Slip Op. at 4. Defense counsel objected
and requested a mistrial. The trial court sustained the objection but denied defendant’s request for
a mistrial. Petitioner contends that a mistrial was the only proper remedy because the jurors must
have wondered why Petitioner, when he was arrested, did not tell police that he was not the person
who committed the crime. In other words, Petitioner contends that, through Detective Crocker’s
testimony, his silence was used to impeach him.
In upholding the denial of Petitioner’s motion for a mistrial on this ground, the Missouri
Court of Appeals concluded that, despite Petitioner’s assumption that he was given Miranda
warnings during booking, “nothing in the record [indicated] that Miranda warnings were given
during booking or at any other time prior to when the defendant ‘provided no statement.’” Herrod,
Slip Op. at 7. On this basis, the state court concluded that Doyle v. Ohio, 426 U.S. 610, 619, 96
S.Ct. 2240, 49 L.Ed.2d 91 (1976), in which the Supreme Court held that use of a criminal
defendant’s post-arrest silence after receiving Miranda warnings violates due process, did not apply
to the facts of Petitioner’s case. Continuing, the Missouri Court of Appeals concluded:
Even if the defendant had received his Miranda warnings during booking, we still
would find no abuse of discretion in the trial court’s denial of a mistrial. First, the
detective’s comment was not responsive to the prosecutor’s question; defense
counsel acknowledged at trial that the detective had volunteered the information.
Moreover, the statement was isolated and the prosecutor did not later attempt to
argue any inference from the statement. Finally, the trial court sustained defense
counsel’s objection and admonished the jury to disregard the testimony [which was]
sufficient to prevent the jury from fixating on this isolated statement.
Herrod, Slip Op. at 7. Additionally, the state court concluded that if in fact the silence occurred after
Petitioner received his Miranda warnings, this was not a basis to overrule the trial court’s denial of
Petitioner’s motion for a mistrial. See id. at 7-8; see also Fletcher v. Weir, 455 U.S. 603, 606, 102
S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (per curiam) (holding that impeachment by post-arrest preMiranda silence did not violate Doyle, rejecting the argument that “arrest, by itself, is governmental
action which implicitly induces a defendant to remain silent”).
Where, as here, it is unclear from the record “what point in time, if ever,” Petitioner received
his Miranda warnings, the Eighth Circuit has at least once, in reviewing a state prisoner’s habeas
petition, concluded that “a remand for an evidentiary hearing concerning the timing of the Miranda
warnings is necessary.” Vick v. Lockhart, 952 F.2d 999, 1003-04 (8th Cir. 1991) (citing United
States v. Massey, 687 F.2d 1348, 1353 (10th Cir. 1982)).
The Court believes that Vick is distinguishable from the instant case, however, and that an
evidentiary hearing concerning the timing of the Miranda warnings, if any, is unwarranted.
First, in Vick, the defendant’s silence was used in cross-examining the defendant himself,
used repeatedly, and used so as to draw meaning from it.
... You turned yourself into the police department, right?
And I’m sure when you turned in, you told them all this, right?
No, I didn’t tell them anything.
You didn’t tell them a thing, right?
They didn’t ask me.
You think that’s something they’ve got to ask you?
Well, I understand that they [were] looking for me. They told me ...
They didn’t ask you if you wanted to make a statement?
My lawyer had already warned me that I didn’t have to make one unless I
My lawyer had informed me that I didn’t have to make one unless I wanted
to. Of course, they didn’t ask me to make a statement anyway.
They didn’t even ask you, huh?
No. The attorney came to me. I answered the questions that he asked me.
Didn’t you sign a rights form and that kind of thing?
And you refused to make a statement?
Okay, so you refused to make a statement.
Okay. Knowing that this—what you’re telling the jury here today is in your
Your Honor, I’m going to object.
That’s going to be sustained.
952 F.2d at 1000. In the instant case, by contrast, Petitioner’s silence was introduced via direct
examination of a prosecution witness in a manner that was “not responsive to the prosecutor’s
question” and “isolated.” Herrod, Slip Op. at 7.
Second, in Vick, “Vick’s counsel did not move for a mistrial, nor request a curative
instruction.” 952 F.2d at 1000. Here, however, “the trial court sustained defense counsel’s objection
and admonished the jury to disregard the testimony,” which the Missouri Court of Appeals
concluded was “sufficient to prevent the jury from fixating on this isolated statement.” Herrod, Slip
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Op. at 7. Further, Petitioner’s counsel had “immediately objected and requested a mistrial.” Id. at
4-5. These circumstances are precisely opposite those present in Vick.
Lastly, because Vick is a pre-AEDPA case, it did not purport to reflect clearly established law
as set out by the Supreme Court. See Parker v. Matthews, --- U.S. ----, 132 S.Ct. 2155, 2153, 183
L.Ed.2d 32 (2012).
In short, although the testimony given by Detective Crocker’s testimony is potentially
suspect, under a contextualized analysis, as undertaken by the state court, the Court cannot conclude
that the Missouri Court of Appeals acted unreasonably in denying Petitioner’s request for a mistrial
on this ground. See Schriro v. Landrigan, 550 U.S. at 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).
In addition, the Court cannot conclude that the Missouri Court of Appeals “arrive[d] at a conclusion
opposite to that reached by [the Supreme] Court … on a set of materially indistinguishable facts.”
Williams, 529 at 412-13, 120 S.Ct. 1495. Therefore, this asserted basis for relief is unavailing to
The final ground asserted by Petitioner is that the trial court erred in denying his motion for
a mistrial when the prosecutor improperly personalized his closing argument, stating, “Imagine when
you have a man you don’t know on top of you, holding you down, putting his penis in your vagina.
... Imagine being raped.”
As the Supreme Court has recently clarified: “The ‘clearly established Federal law’ relevant
[to matters of prosecutorial misconduct] is our decision in Darden v. Wainwright, 477 U.S. 168, 106
S.Ct. 2464, 91 L.Ed.2d 144 (1986), which explained that a prosecutor’s improper comments will be
held to violate the Constitution only if they ‘“so infected the trial with unfairness as to make the
resulting conviction a denial of due process.”’ Id. at 181, 106 S.Ct. 2464 (quoting Donnelly v.
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DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).” Parker, 132 S.Ct. at
Petitioner’s prosecutorial misconduct claim is all but foreclosed by Darden itself, in which
the Supreme Court held that a closing argument considerably more inflammatory than the one at
issue here did not warrant habeas relief. See 477 U.S. at 180 n.11, 106 S.Ct. 2464 (prosecutor
referred to the defendant as an “‘animal’”); id. at 180 n.12, 106 S.Ct. 2464 (“‘I wish I could see [the
defendant] with no face, blown away by a shotgun’”).
Further, the Darden standard “is a very general one, leaving courts ‘more leeway ... in
reaching outcomes in case-by-case determinations ….’” Parker, 132 S.Ct. at 2155 (quoting
Yarborough, 541 U.S. at 664, 124 S.Ct. 2140). As such, the Court does not find unreasonable the
Missouri Court of Appeals analysis, concluding that: (1) “[t]he prosecutor’s improper comments
were isolated”; (2) “[t]he trial court promptly sustained defense counsel’s objection and instructed
the jury to disregard the prosecutor’s statement”; and (3) “the defendant has not shown prejudice
from the comments.” Herrod, Slip Op. at 4. Petitioner’s final ground for relief is thus without merit.
IT IS HEREBY ORDERED that, in accordance with the foregoing, Petitioner’s Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. No. 1) is
DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal will
accompany this Memorandum and Order.
IT IS FURTHER ORDERED that, because Petitioner cannot make a substantial showing
of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir.1997).
IT IS SO ORDERED.
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Dated this 4th day of April, 2013.
/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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