James v. Bowersox

Filing 13

MEMORANDUM AND ORDER re: 1 ORDERED that Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal w ill accompany this Memorandum and Order. 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.. Signed by District Judge Jean C. Hamilton on 5/1/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JERRY JAMES,
Petitioner,
vs.
MICHAEL BOWERSOX,
Respondent.

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Case No. 4:11CV1496 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Jerry James’s pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for
disposition.
On June 13, 2007, a jury in the Circuit Court of St. Louis City, Missouri, found Petitioner
guilty of two counts of assault in the first degree, two counts of armed criminal action, and one count
of burglary in the first degree. (Resp. Exh. B, PP. 47-51). Petitioner was sentenced as a prior and
persistent offender to consecutive terms of ten years imprisonment on the assault convictions and
five years imprisonment on the armed criminal action convictions, and an additional concurrent term
of ten years imprisonment on the burglary conviction, for a total of thirty years. (Id., PP. 63-67).
The Missouri Court of Appeals affirmed Petitioner’s convictions and sentence on direct appeal.
State v. James, 260 S.W.3d 434 (Mo. App. 2008). Petitioner thereafter filed a motion for postconviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied following an
evidentiary hearing. (Resp. Exh. G, PP. 55-60). The Missouri Court of Appeals affirmed the denial
of Petitioner’s post-conviction motion. James v. State, 323 S.W.3d 466 (Mo. App. 2010).

Petitioner is currently incarcerated at the South Central Correctional Center in Licking,
Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following three
claims for relief:
(1)

That the trial court erred in denying Petitioner’s motion for judgment of
acquittal at the close of all evidence, as the State’s evidence was insufficient
to prove that Petitioner committed the crime of burglary in the first degree;

(2)

That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to locate, interview, endorse and call Ms. Niya Perkins as an alibi
witness; and

(3)

That Petitioner received ineffective assistance of counsel, in that appellate
counsel failed to pursue on appeal Petitioner’s claim that the trial court erred
in refusing to strike venireperson Jean Greenwald for cause.

(§ 2254 Petition, PP. 6-34).
DISCUSSION
I.

Ground 1
As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in denying

Petitioner’s motion for judgment of acquittal at the close of all evidence, as the State’s evidence was
insufficient to prove that Petitioner committed the crime of burglary in the first degree. (§2254
Petition, PP. 6-11). Petitioner raised this claim on direct appeal of his convictions, and the Missouri
Court of Appeals denied the claim as follows:
In his sole point, Defendant1 contends the trial court erred in overruling his
motions for judgment of acquittal for burglary in the first degree. Defendant argues
the evidence was insufficient to establish that Defendant knowingly entered the
building unlawfully. We disagree.
Appellate review of the trial court’s denial of a defendant’s motion for
judgment of acquittal at the close of all evidence is limited to determination of
whether there is sufficient evidence from which reasonable juror[s] might have found
defendant guilty beyond a reasonable doubt. State v. Brooks, 158 S.W.3d 841, 847

1

On direct appeal, Petitioner is referred to as “Defendant” by the Missouri Court of Appeals.
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(Mo. App. E.D. 2005). On review, we accept as true all of the evidence favorable to
the State, including all favorable inferences drawn from the evidence and disregard
all evidence and inferences to the contrary. Id. When reviewing for sufficiency of
the evidence, circumstantial evidence is afforded the same weight as direct evidence.
Id.
Section 569.160 provides, in pertinent part:
[a] person commits the crime of burglary in the first degree if he knowingly
enters unlawfully or knowingly remains unlawfully in a building or
inhabitable structure for the purpose of committing a crime therein, and when
in effecting entry or while in the building or inhabitable structure or in
immediate flight therefrom, he or another participant in the crime:
(1) Is armed with explosives or a deadly weapon or;
(2) Causes or threatens immediate physical injury to any person who
is not a participant in the crime; or
(3) There is present in the structure another person who is not a
participant in the crime.
The verdict director for the burglary count in this case required the jury to find,
beyond a reasonable doubt, that Defendant “knowingly entered unlawfully in an
inhabitable structure located at 5076 Page Blvd and possessed by Monte Connelly.”
The terms “enter unlawfully” and “remain unlawfully” are defined in Section
569.010(8), which provides that “a person ‘enters unlawfully or remains unlawfully’
in or upon premises when he is not licensed or privileged to do so.” State v. Thomas,
70 S.W.3d 496, 508 (Mo. App. E.D. 2002).
Here, the jury could reasonably infer from the evidence presented at trial that
Defendant knowingly unlawfully entered the building and Connelly and Jordan’s
room. Defendant did not live at that address. The door to the main entrance of the
building was knocked off its hinges. Defendant heard a “boom” as the door was
kicked in immediately prior to Defendant and Lee James entering the building. There
was no evidence that Defendant had been invited onto the premises or Connelly’s or
Jordan’s room. This evidence is sufficient to support a finding that Defendant
entered unlawfully.
Defendant contends there was no evidence regarding whether Defendant’s
entry into the building was made by force or by permission of another occupant of
the boarding house. Here, the evidence that the door had been kicked allowed for the
reasonable inference that Defendant did not have permission to enter the building,
but entered unlawfully.
Defendant further argues there was no evidence that Defendant broke the door
in and thus, there was insufficient evidence to show that he entered unlawfully.
Defendant maintains the circumstantial evidence showed Lee James was the one who
would have sought entry into the building by using force to get into the building, and
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Defendant was merely an accomplice. However, there is no requirement that a
person must break down a door to gain unlawful entry, only that he is not licensed
or privileged to enter the inhabitable structure. It does not matter whether Lee James
kicked in the door or whether Defendant kicked in the door. The fact that Defendant
entered into the building after the door was kicked in showed he did so without
license or privilege and thus, entered unlawfully.
Finally, Defendant asserts the State failed to prove he entered the building
unlawfully because the building was a boarding house and there was no proof that
Defendant needed a special license or privilege to be in the common areas of the
building, such as the stairwell or the hallway, where there was no evidence that a key
was required to gain entry, or that any license Defendant would have had to be in the
common areas of the building had been revoked. Defendant points to the evidence
that both Connelly and Jordan testified they saw Defendant and Lee James in the
hallway of the building before he shot them. However, even though the building was
a boarding house, there was no evidence that the hallway and stairwell was open to
the public. The fact that the front door of the building was kicked in provides a
reasonable inference that there were no common areas open to the public. Defendant
did not have a valid license to be in the hallway. Moreover, the evidence further
showed Defendant entered Connelly’s and Jordan’s room without permission or
license.
The evidence presented at trial was sufficient to show Defendant knowingly
entered unlawfully the building and Connelly’s and Jordan’s room. The trial court
did not err in overruling Defendant’s motion for judgment of acquittal. Defendant’s
point is denied.
(Resp. Exh. E, PP. 3-6 (footnotes omitted)).
With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in
pertinent part as follows:
(d)
An application for a 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).
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The Supreme Court has held that in reviewing whether the evidence presented in state court
was sufficient to support a criminal conviction, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) (emphasis in original) (citation omitted).
Here, there was evidence of damage to the door at the bottom of the stairwell in the boarding house,
and testimony from one of the victims regarding hearing a door being kicked in immediately prior
to Petitioner’s appearance. (Resp. Exh. A, PP. 236, 297-98). Furthermore, the evidence presented
indicated that regardless of whether Petitioner himself entered the victim’s unit, at the very least he
reached into the room with his gun. (Id., PP. 330-31). Taken together, this evidence was sufficient
to permit a reasonable jury to find that Petitioner knowingly entered the building unlawfully, and
thus was sufficient to justify a verdict of guilt beyond a reasonable doubt on the burglary count. The
decision of the Missouri court thus is entitled to deference, and Ground 1 is denied.
II.

Ground 2
As stated above, in Ground 2 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that trial counsel failed to locate, interview, endorse and call Ms. Niya
Perkins as an alibi witness. (§2254 Petition, PP. 12-24). Petitioner raised this claim before the 29.15
post-conviction motion court, and the court denied the claim as follows:
2.
....Post-conviction claims of ineffective assistance of counsel are governed
by Strickland v. Washington, 104 Sup. Ct. 2052 (1984); see also, Sanders v. State,
738 S.W.2d 856 (Mo. banc 1987); and State v. Dulany, 781 S.W.2d 52, 57 (Mo. banc
1989).
3.
Movant2 carries the burden of proving by a preponderance of the evidence
that (1) counsel failed to exercise the customary skill and diligence that a reasonably

2

Petitioner is referred to as “Movant” by the post-conviction motion courts.
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competent attorney would display under certain circumstances, and (2) Movant was
thereby prejudiced. Strickland, page 2064. This has been called a “heavy burden”
because there is a presumption that the trial counsel is competent and deference
should be paid to trial counsel’s decisions. Sanders, page 857-858. In adjudging the
reasonableness of an attorney’s performance or exercise of judgment, reliance on the
clarity of hindsight should be eschewed even though it reveals mistakes. Rather, the
circumstances surrounding counsel’s choices should be viewed as they appeared to
counsel at the time the decisions were made. Sanders, at page 858. Necessarily, “[a]
Movant must satisfy both the performance prong and the prejudice prong in order to
prevail on ineffective assistance of counsel claim[s].” State v. Boyce, 913 S.W.2d
425, 429 (Mo. App. E.D. 1996).
4.
Movant alleges that he was denied effective assistance of counsel and due
process of law because trial counsel failed to locate, interview, endorse, and call as
a witness, Ms. Niya Perkins. In order to be entitled to relief on the ground that
counsel failed to call witnesses Movant must identify who the witnesses were,
whether or not counsel was informed of their existence, establish that the witnesses
could have been located through reasonable investigation, would have testified if
called, and their testimony would have provided a viable defense. State v. Dudley,
819 S.W.2d 51, 56 (Mo. App. S.D. 1991); Thompson v. State, 779 S.W.2d 666 (Mo.
App. E.D. 1989); Smith v. State, 774 S.W.2d 562, 564 (Mo. App. E.D. 1989); and
State v. Martin, 775 S.W.2d 196 (Mo. App. E.D. 1989). If a potential witness’s
testimony would not have unqualifiedly supported the Movant, the failure to call such
witness is not ineffective assistance of counsel. Hamilton v. State, 770 S.W.2d 346
(Mo. App. E.D. 1989).
5.
Trial counsel Kelly Moyich testified that she did interview a potential alibi
witness provided by Movant, Ms. Marilyn Good. Ms. Good showed up the day of
trial, and after said interview, Ms. Moyich did not find her account or proposed
testimony to be credible. In fact, Ms. Moyich testified that after interviewing Ms.
Good, whom the Movant claimed to be his alibi, she decided not to use her as a
witness because Ms. Good indicated, to her, that Movant asked that she lie for him
in trial. Based on Ms. Moyich’s interview with Ms. Good, it was a sound and
reasonable trial strategy not to call an alibi witness. Further, Ms. Moyich had never
been given the name of Ms. Perkins prior to the trial or even at the trial. Ms. Perkins’
testimony clearly would not provide Movant with a viable defense as its alibi was not
iron-clad, not to mention the troubling aspect of perjury presented by a prior witness.
“The choice of witnesses is ordinarily a matter of trial strategy and will not support
an ineffective assistance of counsel claim.” State v. Harris, 870 S.W.2d 798 (Mo.
banc 1994). Given all the facts and circumstances surrounding Ms. Perkins’
testimony, as it did not firmly establish an alibi for Movant, clearly trial counsel was
not ineffective in her representation in this regard. An attorney is under an absolute
obligation not to present perjured testimony in support of his client. McNamara v.
State, 502 S.W.2d 306, 308 (Mo. 1972) and Askew v. State, 617 S.W.2d 642, 644.
See also Bennett v. State, 549 S.W.2d 585, 587 and Allen v. State, 518 S.W.2d 170,

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172. Kelly Moyich is an experienced trial attorney and this court finds her to be
highly credible.
(Resp. Exh. G, PP. 57-59). Petitioner advanced the claim on appeal of the denial of his Rule 29.15
motion, and the Missouri Court of Appeals denied his claim as follows:
In his first point on appeal, Movant claims the motion court clearly erred in
denying his PCR motion because Trial Counsel was ineffective in that Trial Counsel
failed to locate, interview, endorse, and call his sister, Niya Perkins (Perkins), as an
alibi witness.
The State counter argues that no error occurred because Movant did not
disclose Perkins as an alibi witness to Trial Counsel and that Perkins’ testimony
would not have provided a viable defense. We agree.
To prevail on a claim of ineffective assistance of counsel, the defendant must
show: (1) his attorney’s performance did not conform to the degree of skill, care, and
diligence rendered by a reasonably competent attorney under similar circumstances;
and (2) as a result of his attorney’s performance, he was prejudiced. Rule 29.15(i)
(standard of review); Strickland v. Washington, 466 U.S. 668, 687 (1984);
Worthington v. State, 166 S.W.3d 566, 572-73 (Mo. banc 2005). If the defendant
fails to prove either prong of the Strickland test, the court need not consider the
remaining prong, and the defendant’s claim must fail. Scott, 183 S.W.3d at 247;
Londagin, 141 S.W.3d at 118.
To satisfy the first prong of the Strickland test, a movant must overcome a
strong presumption that trial counsel provided competent representation by showing
“that counsel’s representation fell below an objective standard of reasonableness.”
Worthington, 166 S.W.3d at 573. “This standard is met by identifying specific acts
or omissions of counsel that, in light of all the circumstances, fell outside the wide
range of professional competent assistance.” Id. “It is presumed that counsel’s
conduct was reasonable and effective.” Id.
Reasonable choices of trial strategy cannot serve as a basis for a claim of
ineffective assistance of counsel Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc
2006). “[S]trategic choices made after a thorough investigation of the law and the
facts relevant to plausible opinions are virtually unchallengeable.” Id., 196 S.W.3d
at 33 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052).
To satisfy the second prong of the Strickland test, a movant is required to
show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. (quoting
Middleton v. State, 103 S.W.3d 726, 733 (Mo. banc 2003)). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 33-34 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
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To prevail on an ineffective assistance of counsel claim due to counsel’s
failure to investigate witnesses, the movant must prove 1) the witnesses could have
been located through reasonable investigation; 2) the witness would have testified if
called; and 3) the witnesses’ testimony would have aided the movant’s defense.
White v. State, 939 S.W.2d 887, 896 (Mo. banc 1997); State v. Steward, 936 S.W.2d
592, 595 (Mo. App. 1996). If the witness’ testimony would have negated an element
of the crime for which the movant was convicted, the testimony would have provided
the movant with a viable defense. McClendon v. State, 247 S.W.3d 549, 556 (Mo.
App. E.D. 2007). If the witness’ testimony would have merely impeached the State’s
witnesses, relief on a claim of ineffective assistance of counsel is not warranted. Id.,
247 S.W.3d at 556-57. The selection of witnesses and the introduction of evidence
are questions of trial strategy, the mere choice of which is not a foundation for
finding counsel’s assistance was ineffective. Ringo v. State, 120 S.W.3d 743, 748
(Mo. banc 2003). Ordinarily, strategic decisions made by counsel after thoroughly
investigating the law and the facts relevant to the plausible options are virtually
unchallengeable. Helmig v. State, 42 S.W.3d 658, 667 (Mo. App. E.D. 2001).
At the evidentiary hearing in this case, Movant, Perkins, and Trial Counsel
testified.
Movant testified that the night before the underlying offenses occurred, he
had stayed at Perkins’ home. Movant testified that he had told Trial Counsel about
Perkins when Trial Counsel “came to see [him]” and “when trial started.” Movant
testified that Trial Counsel responded to this information by telling him that she was
the lawyer, he was the client, he was not paying her, and she was going to do what
she was going to do. Later, Movant testified that Perkins came to visit Movant in jail
and called Movant but that Perkins never called Trial Counsel, the police, or the
prosecutor’s office claiming that she was an alibi witness for Movant. Movant
further testified that he did not ask anyone else to be an alibi witness and did not
inform Trial Counsel of anyone else who could be a potential alibi witness.
Perkins testified that Movant had come to stay with her after he had been
released from prison on other convictions. Perkins testified that Movant stayed with
her the night before the offenses but that she did not know the date Movant had
stayed at her home. Perkins also testified that she had visited Movant in jail after he
was arrested for the offenses in the underlying case. Perkins testified that Trial
Counsel’s office did not contact her but that she attended Movant’s trial even though
she was not subpoenaed as a witness. On cross-examination, Perkins testified that
she sometimes was away from the house for several nights in a row or asleep, and she
did not necessarily know Movant’s whereabouts when he left the house. Perkins
testified that she had taken Movant to Marilyn Good’s (Good) house on the day of
the underlying offenses but that she had never volunteered that information to Trial
Counsel before or during trial. Perkins further testified that she did not know the day,
month, or year when Movant was found guilty of the underlying offenses or when he
was sentenced but that she remembered driving Movant to Good’s house on the day
the underlying offenses occurred.
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Trial counsel testified that she had, in fact, interviewed a potential alibi
witness provided by Movant, who was not Perkins but Good. Good came to court
on the first day of trial, and Trial Counsel endorsed Good as a witness, filed the alibi
notice with the trial court, and intended to call Good. Later, when Trial Counsel
interviewed Good, Good informed Trial Counsel that Movant and Movant’s brother
had asked Good to lie about Movant’s involvement in the underlying crime. Good
also informed Trial Counsel that she did not want to testify, and, if she did testify, she
would be lying. Based on that information, Trial Counsel decided against calling
Good as an alibi witness and conducted no further investigation into a possible alibi
defense. Trial Counsel testified that she had not received any information about
other potential alibi witnesses, had nothing in her case notes regarding Perkins, did
not recall interviewing Perkins or endorsing Perkins as a witness, and was uncertain
whether Perkins even attended Movant’s trial. Trial counsel further testified that the
first time she heard of Perkins as a potential alibi witness for Movant was when Trial
Counsel read Movant’s PCR Motion.
In its findings of fact and conclusions of law, the motion court found that
Trial Counsel was not ineffective. The motion court found the evidence presented
at the evidentiary hearing established that Trial Counsel did not know about Perkins
prior to trial or at trial. The evidence also established that Perkins’ testimony would
not have provided Movant with a viable alibi defense because Perkins admitted that
she did not always know Movant’s whereabouts when he had stayed at her home
around the time of the offenses in the underlying case. Furthermore, the motion court
found that Trial Counsel was an experienced trial attorney and was “highly credible.”
Notably, Good did not testify at the evidentiary hearing. We have reviewed the
transcript from the evidentiary hearing and find nothing that contradicts the motion
court’s finding. Given our standard of review, we defer to the motion court’s
determinations regarding the credibility of the witnesses. Point denied.
(Resp. Exh. J, PP. 3-7).
Under federal law, in order to prevail on his ineffective assistance of counsel claim,
Petitioner must show that his attorney’s performance was “deficient,” and that the deficient
performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To
overcome this presumption, Petitioner must prove that, “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent assistance.”
Id.
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Even if Petitioner satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 694. To do so, Petitioner must prove that “there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
Upon consideration, the Court finds that with this claim Petitioner fails to satisfy either prong
of the Strickland test. With respect to deficient performance, the Court notes that during the
evidentiary hearing on Petitioner’s post-conviction motion, Ms. Moyich testified that she had no
recollection of Ms. Perkins being mentioned as a potential alibi witness, nor did her notes indicate
Ms. Perkins ever contacted her in any way as she prepared for trial. (Resp. Exh. F, PP. 55-58).
Instead, Ms. Moyich stated that the first time she saw the name Niya Perkins was the morning of the
evidentiary hearing, when she read Petitioner’s 29.15 motion. (Id., P. 58). The 29.15 motion court
found Ms. Moyich’s testimony to be credible, and that finding was not unreasonable in light of the
evidence presented in state court. Under these circumstances, this Court does not find that trial
counsel’s failure to locate and endorse a witness of whom she was unaware fell outside the wide
range of professionally competent assistance sanctioned by Strickland.
With respect to prejudice, the Court finds that under the instant facts, it cannot be said that
Petitioner was prejudiced by counsel’s failure to call Niya Perkins. Rather, as found by the postconviction motion court and the Missouri Court of Appeals, because Ms. Perkins’ testimony was not
clear in establishing she was aware of Petitioner’s whereabouts during the time frame of the offenses,
it is unlikely that her testimony would have yielded a different outcome. (See Resp. Exh. F, PP. 2139). Under these circumstances, the Missouri state courts’ finding that the result of Petitioner’s
proceeding would likely have been the same even absent counsel’s alleged error was not an

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unreasonable application of clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. Ground
2 of Petitioner’s § 2254 petition must therefore be denied.
III.

Ground 3
As stated above, in Ground 3 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that appellate counsel failed to pursue on appeal Petitioner’s claim that the
trial court erred in refusing to strike venireperson Jean Greenwald for cause. (§2254 Petition, PP.
24-34). Petitioner raised this claim before the 29.15 post-conviction motion court, and the court
denied the claim as follows:
6.
Movant further claims that he was denied effective assistance of counsel and
due process of law because appellate counsel failed to raise the issue of striking
venire person Jean Greenwald for cause. In order to prove that Movant was deprived
of effective assistance of counsel on appeal, Movant must show: (1) actions of
appellate counsel were outside the wide range of professionally competent assistance,
(2) errors of counsel were so severe that counsel was not functioning as counsel
guaranteed Movant by the Sixth Amendment, and (3) deficiencies of counsel’s
performance resulted in prejudice. Strong grounds must exist showing that counsel
failed to assert a claim of error which would have required reversal had it been
asserted, in which was so obvious from the record that a competent lawyer would
have recognized it and asserted it. Franklin v. State, 24 S.W.3d 686 (Mo. banc
2000). Considering the totality of the circumstances of juror Greenwald, the record
clearly supports that there was no basis to disqualify her for cause. State v. McKee,
826 S.W.2d 26 (Mo. App. 1992). The record includes extensive questioning by
counsel and the court concerning police credibility. It should be noted that police
credibility was not a major issue in this case. Appellate counsel Kristine Starke, is
also an experienced appellate attorney and the court finds her testimony to be highly
credible. This court further finds juror Greenwald to be an honest person and her
answers taken as a whole clearly show her ability to be a fair and impartial juror in
this case. This court accordingly finds that Movant has failed to carry his burden of
proof and establish prejudice in this regard.
(Resp. Exh. G, PP. 59-60). Petitioner advanced the claim on appeal of the denial of his Rule 29.15
motion, and the Missouri Court of Appeals denied his claim as follows:
In his second point on appeal, Movant claims the motion court clearly erred
in denying his PCR motion because Appellate Counsel was ineffective in that
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Appellate Counsel failed to raise on direct appeal the trial court’s alleged error in not
striking a venire person, Jean Greenwald (Greenwald), for cause due to Greenwald’s
answers to questions in voir dire regarding police officer credibility. Movant argues
that he was prejudiced because, had Appellate Counsel raised the issue of the court’s
failure to strike Greenwald, there exists a reasonable probability that the outcome of
the Movant’s appeal would have been different.
The standard for an ineffective appellate counsel claim is effectively the same
standard applied to an ineffective trial counsel claim. Mallett v. State, 769 S.W.2d
77, 83-84 (Mo. banc 1989). A movant must show both a deficiency in performance
and a resulting prejudice. Id. Appellate counsel, however, is not required to raise
every type of potential error on appeal. Id. To grant a motion related to ineffective
assistance of appellate counsel, “‘strong grounds must exist showing that counsel
failed to assert a claim of error which would have required reversal had it been
asserted and which was so obvious from the record that a competent and effective
lawyer would have recognized it and asserted it.’” Moss v. State, 10 S.W.3d 508,
514 (Mo. banc 2000) (quoting Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc
1994)).
To prove he suffered ineffective assistance of his appellate counsel, a movant
must show: 1) the actions of appellate counsel were outside the wide range of
professional competent assistance; 2) appellate counsel’s errors were so severe that
he was not functioning as the “counsel” guaranteed to the movant under the Sixth
Amendment; and 3) appellate counsel’s deficient performance resulted in prejudice.
Franklin v. State, 24 S.W.3d 686, 690-91 (Mo. banc 2000). Furthermore, the record
must contain strong grounds showing appellate counsel failed to assert a claim of
error that would have required reversal had it been asserted and was so obvious from
the record that a competent and effective attorney would have recognized it and
asserted it. Id. at 691; Holman v. State, 88 S.W.3d 105, 110 (Mo. App. E.D. 2002).
Here, Movant’s claim is without merit.
At the evidentiary hearing in this case, Trial Counsel testified that she
included the issue of the court’s failure to strike Greenwald in Movant’s motion for
new trial. Trial Counsel testified that she raised the issue because, during voir dire,
Greenwald initially had said she would be more likely to believe a police officer’s
testimony over other witnesses’ testimony. Appellate Counsel testified that she read
the motion for new trial and considered all of the issues included therein when she
appealed Movant’s case. However, after reviewing the transcript from voir dire,
Appellate Counsel believed that Greenwald had been rehabilitated upon further
questioning by the trial court when she testified that she could be fair. Appellate
Counsel also knew that the appellate court’s standard of review grants the trial court
great deference in matters of jury selection; thus, Appellate Counsel believed the
claim concerning Greenwald would not prevail on appeal and did not include that
claim in the appeal. Instead, Appellate Counsel focused on challenging the
sufficiency of the State’s evidence regarding the burglary conviction.
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In overruling Movant’s PCR Motion, the motion court found that:
Considering the totality of the circumstances of juror Greenwald, the
record clearly supports that there was no basis to disqualify her for cause....
[Appellate counsel] is also an experienced appellate attorney and the court
finds her testimony to be highly credible. This court further finds juror
Greenwald to be an honest person and her answers taken as a whole clearly
show her ability to be a fair and impartial juror in this case. This court
accordingly finds that Movant has failed to carry his burden of proof and
establish prejudice in this regard.
This Court has reviewed the transcript from the voir dire proceeding and
agrees with the motion court’s ruling. First, as the State notes in its responsive brief,
the record is silent as to whether Greenwald actually served as a juror at Movant’s
trial. Second, even if Greenwald had served as a juror at Movant’s trial, Greenwald’s
responses in voir dire, taken as a whole, indicated that she was willing and able to be
impartial. See State v. Christeson, 50 S.W.3d 251, 264 (Mo. banc 2001) (“A
venireperson’s qualifications as a prospective juror are not determined by an answer
to a single question, but by the entire examination.”) After Trial Counsel motioned
to strike Greenwald for cause, the trial court questioned Greenwald at length about
whether she could impartially consider the witnesses’ testimony. Greenwald testified
that she understood all cases come down to believability of witnesses and that,
whether or not the witness was a police officer, she would have to ask herself if any
witness was telling the truth. Greenwald further testified that the “bottom line for
[her] would be to say that just because [the witness] is a police officer doesn’t mean
[she’s] hearing everything that’s the truth[.]” The record shows that, before denying
the motion to strike Greenwald for cause, the trial court independently explored
Greenwald’s testimony for possible prejudice toward Movant by considering
Greenwald’s testimony concerning her ability to act impartially. See Joy v.
Morrision, 254 S.W.3d 885, 891 (Mo. banc 2008). The trial court was afforded
broad discretion in determining whether to strike Greenwald for cause, and this Court
would not have disturbed that ruling on direct appeal unless the record had reflected
“a clear showing of abuse of discretion.” Id. 254 S.W.3d at 888. Therefore, given
that the record does not reflect a clear abuse of discretion or real probability of injury
to Movant because of the trial court’s denial of the motion to strike Greenwald, even
if Appellate Counsel had challenged the ruling on direct appeal, this Court would not
have disturbed the ruling. Consequently, Appellate Counsel will not now be found
ineffective for failing to raise a meritless claim on appeal. See Franklin, 24 S.W.3d
at 690-91; Holman, 88 S.W.3d at 110. Appellate Counsel did not have a duty to
present every issue that had been asserted in Movant’s motion for new trial. Holman,
88 S.W.3d at 110. The record shows that Appellate Counsel decided to pursue
another issue that had been asserted in Movant’s motion for new trial, which, as a
matter of strategy, would promote judicial economy by focusing this Court’s
attention on issues more pertinent to resolving the case and with a better chance for
success. Id. Point denied.

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(Resp. Exh. J, PP. 7-10).
“It is well established that the Sixth Amendment guarantees the right to effective assistance
of counsel on direct appeal.” Cole v. Dormire, 2011 WL 1258249, at *14 (E.D. Mo. Jan. 20, 2011)
(citing Evitts v. Lucey, 469 U.S. 387, 396–97 (1985); Douglas v. California, 372 U.S. 353, 357–58
(1963)). The proper standard for evaluating a claim of ineffective assistance of appellate counsel
is that set forth in Strickland. Id. In other words, Petitioner must show that his appellate attorney’s
performance fell below the reasonable standard of competence, and that there is a reasonable
probability that the result would have been different absent this deficient performance. See
Strickland, 466 U.S. at 687; Gee v. Groose, 110 F.3d 1346, 1352 (8th Cir. 1997).
“Appellate counsel is expected to winnow the issues on appeal to highlight the most
meritorious issues and eliminate the sure losers.” Cole, 2011 WL 1258249, at *14 (citing Jones v.
Barnes, 463 U.S. 745, 751–52 (1983); Gee, 110 F.3d at 1352; Pollard v. Delo, 28 F.3d 887, 889 (8th
Cir. 1994)). “An attorney’s decision not to raise an unwinnable issue on appeal is an important
strategic decision in competent appellate advocacy, and does not constitute ineffective assistance of
appellate counsel.” McCord v. Norman, 2012 WL 1080925, at *16 (E.D. Mo. Mar. 30, 2012)
(citations omitted). Thus, “[i]f an issue an appellate attorney failed to raise on appeal is not
meritorious, then appellate counsel cannot be considered ineffective for having failed to argue that
issue on appeal.” Cole, 2011 WL 1258249, at *14 (citations omitted).
Upon consideration the Court finds that with this claim, Petitioner again fails to satisfy either
prong of the Strickland test. With respect to deficient performance, the Court notes that during the
evidentiary hearing on Petitioner’s post-conviction motion, appellate counsel Kristina Starke testified
that prior to filing Petitioner’s direct appeal, she reviewed the motion for new trial filed by trial
counsel. (Resp. Exh. F, P. 63). At that time she considered raising the claim regarding Ms.

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Greenwald, but concluded that the trial judge had rehabilitated the juror. (Id., PP. 65, 73). Ms.
Starke thus elected not to raise the issue on appeal, especially in light of the great deference the
appellate court grants the trial court in matters of juror selection. (Id., PP. 65-66). The 29.15 motion
court found Ms. Starke’s testimony to be credible, and that finding was not unreasonable in light of
the evidence presented in state court. Under these circumstances, this Court finds Petitioner’s
appellate attorney properly exercised her discretion in winnowing issues for appeal, by considering
the juror bias issue and rejecting it based on Ms. Greenwald’s answers during voir dire.
With respect to prejudice, the Court finds the flaw in Petitioner’s claim is that the same state
appellate court that reviewed this challenge in his postconviction proceeding would have reviewed
the issue had it been raised on direct appeal, and held that, “even if Appellate Counsel had
challenged the ruling on direct appeal, this Court would not have disturbed the ruling.” (Resp. Exh.
J, P. 10). Therefore, Petitioner’s claim that the juror bias issue, had it been raised and briefed on
direct appeal, would have resulted in reversible error, is refuted by the very court that would have
decided the question on direct criminal appeal. Cole, 2011 WL 1258249, at *14. “Because an
attorney cannot provide ineffective assistance in omitting an unwinnable issue from a direct appeal,
and Petitioner would not have prevailed on direct appeal if the issue had been included in that
appeal, Petitioner’s third ground for relief lacks merit.” Id.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are
DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and
Order.

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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), cert. denied, 525 U.S. 834 (1998).

Dated this 1st day of May, 2013.

/s/Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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