Epkins v. Norman

Filing 27

MEMORANDUM - For the reasons stated above, the petitions of Carl Epkins for a writ of habeas corpus are denied. Because, petitioner failed to make a substantial showing that he suffered a violation of a constitutional right, a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2). An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 1/7/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CARL EPKINS,

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)
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)
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Petitioner,
v.
JEFF NORMAN,
Respondent.

No. 4:11 CV 1546 DDN

MEMORANDUM
This action is before the court upon the petitions1 of Missouri state prisoner Carl
E. Epkins for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have
consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc 11.) For the reasons set forth
below, the writ of habeas corpus is denied.
I. BACKGROUND
On June 7, 2007, petitioner Carl Epkins was convicted following a bench trial in
the Circuit Court of Pemiscot County of one count of first-degree murder, one count of
first-degree assault, and two counts of armed criminal action. (Doc. 12, Ex. A at 69-70.)
On July 17, 2007, the circuit court sentenced petitioner to life without parole for the firstdegree murder, a consecutive term of life imprisonment for the first-degree assault, and
terms of ten years imprisonment for each of the two counts of armed criminal action
running concurrently with each other but consecutive to the life sentences. (Id.) On
November 26, 2008, the Court of Appeals affirmed the judgment on direct appeal. (Id.,
Ex. D.)

1

 Petitioner

filed his original petition on September 6, 2011, and an amended petition on
May 29, 2012. (Docs. 1, 21.)

On June 10, 2009, petitioner filed with the assistance of appointed counsel an
amended pro se motion in the circuit court under Missouri Supreme Court Rule 29.15 for
an evidentiary hearing and post-conviction relief.

(Id., Ex. E at 47-75.)

After an

evidentiary hearing on October 27, 2009, the circuit court denied the motion on
December 16, 2009. (Id. at 79-86.) On February 10, 2011, the Missouri Court of
Appeals affirmed the circuit court’s denial of the motion. (Id., Ex. H.) Thereafter,
petitioner Epkins sought habeas corpus relief in this court. In denying petitioner’s direct
appeal, the Missouri Court of Appeals described the facts, viewed in the light most
favorable to the verdict, as follows:
Epkins and his wife Keisha were separated and lived in different towns.
Keisha was maintaining a sexual relationship with Eddie Luster, who had
fathered her child born during her marriage to Epkins. Around midnight on
November 24, Luster visited Keisha at her Hayti apartment.
Later that night, Epkins entered Keisha’s apartment with a pistol.
He ordered Luster, who was asleep on the couch, into the bedroom where
Keisha was sleeping, where Epkins shot Luster three times, then Keisha
five times. Luster survived; Keisha did not.
Epkins was quickly apprehended. Highway Patrol Sergeant J.S.
Stoelting and Hayti police officer Justin Brown went to interview him at the
Pemiscot County Justice Center. When Sergeant Stoelting read Epkins his
Miranda2 [footnote 2: Miranda v. Arizona, 384 U.S. 436 (1966).] rights,
Epkins asked to speak with his attorney. Sergeant Stoelting left the room,
for less than a minute, to call for a jailer to return Epkins to his cell.
Officer Brown, who stayed behind and knew Epkins as a drug informant,
engaged in small talk with Epkins unrelated to the case.3 [Footnote 3:
Officer Brown asked Epkins how he was doing living in Illinois and how a
prior injury was healing.]
Epkins started volunteering details about what led up to the
shooting; that he and Keisha had been having problems; he was under a lot
of pressure; and he felt overloaded. Epkins asked whether “Eddie was
okay” and if Keisha was dead. Officer Brown answered that Luster would
live, but Keisha was dead. Epkins replied that Keisha’s death lifted a
weight off his shoulders.

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Before trial, [petitioner] unsuccessfully moved to suppress his
forgoing statements, which were included, over Epkins timely trial
objections, in the depositions and police reports of Sergeant Stoelting and
Officer Brown admitted at trial.
Doc. 12, Ex. D, Memorandum at 2-3.
II. PETITIONER’S GROUNDS FOR HABEAS RELIEF
Petitioner claims the following grounds for relief in this habeas action:
(1)

The trial court erred in denying petitioner’s motion to suppress the oral
statements he made to the police during police interrogation and in
overruling petitioner’s trial objection to the admission of those statements;

(2)

His trial counsel rendered constitutionally ineffective assistance for:
a) Coercing petitioner into waiving his right to a jury trial;
b) Refusing the call petitioner to testify at trial in his own behalf;
c) Agreeing to admission of evidence without informing petitioner and
in violation of the Confrontation Clause;
d) Failing to request a mistrial or new trial due to an illegal search and
seizure;
e) Failing to investigate and present exculpatory evidence of defenses,
including several witnesses;
f) Failing to call a trajectory expert to testify at trial;
g) Failing to request a mistrial or new trial due to the tainted crime
scene;
h) Failing to request a mistrial or new trial due to victim Luster’s false
testimony about his and victim Keisha's locations when compared
with the autopsy report;
i) Failing to suppress evidence obtained by illegal search of Arkeisha
Smith's residence; and
j) Failing to file a motion for a new trial and preserve claims for
appeal.

(3)

His appellate counsel rendered constitutionally ineffective assistance for
failing to raise on appeal:
a) Insufficiency of evidence of the first-degree assault mens rea due to
evidence of self-defense and sudden passion;
b) Trial court error of denying petitioner’s pretrial motion for
appointment of experts at the state’s expense;
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c) Trial court error when prosecution admitted, over the defense’s
objection, evidence of other criminal activity (the deposition of
Justin Brown and a letter from Larry Ferrell);
d) Trial court error allowing evidence in violation of the Confrontation
Clause;
e) Trial court error by not holding a hearing to determine whether his
waiver of his right to testify in his own behalf was voluntary and
knowing; and
f) Trial court error by failing to acquit petitioner due to the
insufficiency of the evidence.
(Doc. 1, Attachment at 16-17; Doc. 6 at 1-4.)
Respondent contends Ground One and Grounds Two (a) and (b) are meritless.
Respondent also contends that Ground Two (b) is procedurally barred. Respondent has
not responded to the remaining grounds.
III. EXHAUSTION AND PROCEDURAL BAR
Congress requires that state prisoners exhaust their state law remedies for claims
made in federal habeas corpus petitions filed in district court under 28 U.S.C. § 2254.
See 28 U.S.C. § 2254(b)(1)(A). A state prisoner has not exhausted his remedies “if he
has the right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c). Given the limitation periods under Missouri law for
asserting grounds for relief on direct appeal and in motions for post-conviction relief, no
proper procedure for litigating petitioner Epkins' federal habeas claims now remains
available to him. See Mo. Sup. Ct. R. 29.15(b) (post-conviction relief motion must be
filed within 90 days after the mandate of the court of appeals affirming the judgment or
sentence is filed; or, if no appeal is filed, within 180 days from the date the person is
delivered to the Department of Corrections); Mo. Sup. Ct. R. 81.04(a) (10 days to file a
notice of appeal after circuit court judgment is final).
Exhaustion in the sense that petitioner now has no remaining procedure for
bringing a claim to the state court does not, however, satisfy the federal statutory
requirement. Rather, a petitioner must have fairly presented the substance of each federal
ground to the trial and appellate courts. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
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curiam). If he has not done so and has no remaining procedure for doing so because he
has defaulted on the legitimate requirements of the otherwise available procedures, any
such ground for federal habeas relief is barred from being considered by the federal
courts. Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816,
821 (8th Cir. 2001) (en banc); Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997)
(petitioner’s failure to present a claim on appeal from a circuit court ruling raises a
procedural bar to pursuing the claim in a habeas action in federal court).
Petitioner raised Ground One at the trial level by unsuccessfully moving to
suppress his statements prior to trial and timely objecting to their admission at trial.
(Doc. 12, Ex. J at 19, 186.) He also appealed Ground One to the Missouri Court of
Appeals and Missouri Supreme Court.

(Id., Ex. B at 11.)

Ground One is not

procedurally barred.
On June 10, 2009, petitioner filed an amended pro se Rule 29.15 motion raising
Grounds Two (a) and (b). (Id., Ex. E at 52, 63.) On December 16, 2009, the court
overruled petitioner’s motion. (Id. at 2.) Petitioner subsequently appealed Ground Two
(a) but did not appeal Ground Two (b). (Id., Ex. F.) On February 10, 2011, the Missouri
Court of Appeals rejected Ground Two (a) on the merits. (Id., Ex. H at 7-11.) Ground
Two (b) is procedurally barred and Ground Two (a) is not.
Petitioner raised Grounds Two (c) through (j) and Grounds Three (a) through (f)
for the first time in his federal habeas petitions. Accordingly, Grounds Two (c) through
(j) and Grounds Three (a) through (f) are also procedurally barred.
Nevertheless, petitioner may avoid the procedural bar if he can demonstrate
legally sufficient cause for the default and actual prejudice resulting from it, or if he can
demonstrate that failure to review a defaulted claim would result in a fundamental
miscarriage of justice. Maples v. Thomas, 132 S. Ct. 912, 922 (2012); Coleman v.
Thompson, 501 U.S. 722, 749-50 (1991).
Petitioner alleges that failure to review Ground Two (b) would result in a
fundamental miscarriage of justice, arguing that he is innocent of the first-degree murder

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and first-degree assault. Alternatively, he argues that he did not deliberate prior to the
murder but “acted in self-defense” or “acted recklessly.” (Doc. 24 at 18.)
To demonstrate that the failure to review his grounds for relief would result in a
fundamental miscarriage of justice, the petitioner may show that he is actually innocent.
Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A habeas petitioner asserting actual
innocence to support his allegations of constitutional error must do so with new, reliable
evidence.

Schlup v. Delo, 513 U.S. 298, 324 (1995).

Without new evidence of

innocence, even a meritorious constitutional claim is not sufficient to permit a habeas
court to reach the merits of a procedurally defaulted claim. Id. at 316. Schlup requires
that a habeas petitioner must “come forward not only with new reliable evidence which
was not presented at trial, but . . . come forward with new reliable evidence which was
not available at trial through the exercise of due diligence.” Kidd v. Norman, 651 F.3d
947, 953 (8th Cir. 2011).
Petitioner does not support his assertion of actual innocence regarding first-degree
murder and first-degree assault with new reliable evidence. (Doc. 12 at 16-30.) He
contends solely that false testimony and “both trial counsel’s failure to allow petitioner to
take the stand to testify had the effect of foreclosing meaning[ful] exploration of a selfdefense or sudden passion defense.” (Doc. 24 at 17-18.) Petitioner’s claim of actual
innocence is insufficient to reach the merits of the procedurally defaulted claim.
Nevertheless, Congress has authorized federal courts to consider the merits of
procedurally barred grounds and to dismiss them if a court concludes that the grounds are
without merit.

28 U.S.C. § 2254(b)(2).

The undersigned has considered all of

petitioner’s federal grounds on their merits.
IV. STANDARDS OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires that habeas
relief may not be granted by a federal court on a claim that has been decided on the
merits by a state court unless that adjudication:

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(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)(1)-(2).
A state court’s decision is contrary to clearly established law if it “arrives at a
conclusion opposite to that reached by [the] Court on a question of law or…decides a
case differently than [the] Court has on a set of materially indistinguishable facts.”
Thaler v. Haynes, 130 S. Ct. 1171, 1174 (2010) (per curiam) (citation omitted). This
standard is difficult to attain because habeas corpus “is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citation
omitted).

A state court’s decision involves an unreasonable application of clearly

established federal law if “the state court identifies the correct governing legal principle
from [the] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Thaler, 130 S. Ct. at 1174.
A state court’s factual findings are presumed to be correct.

28 U.S.C. §

2254(e)(1); Wood v. Allen, 130 S. Ct. 841, 845 (2010). Review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the
merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Clear and convincing
evidence that factual findings lack evidentiary support is required to grant habeas relief.
28 U.S.C. § 2254(e)(1); Wood, 130 S. Ct. at 845.
Because petitioner did not present to the state courts Grounds Two (b) through (j),
this court reviews them under the pre-AEDPA standard for habeas review. Gingras v.
Weber, 543 F.3d 1001, 1003 (8th Cir. 2008); Montes v. Trombley, 599 F.3d 490, 495
(6th Cir. 2010). Under the pre-AEDPA standard, the habeas petitioner must show a
“reasonable probability that the error complained of affected the outcome of the trial or
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that the verdict likely would have been different absent the now-challenged [defect].”
Robinson v. Crist, 278 F.3d 862, 865-66 (8th Cir. 2002).
V. EVIDENTIARY HEARING
Petitioner also requests an evidentiary hearing. AEDPA provides that a court shall
not hold an evidentiary hearing on a habeas corpus claim unless a petitioner shows that:
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
Petitioner raises no new rule of constitutional law and alleges no factual predicate
that could not have been previously discovered with due diligence.

Accordingly,

petitioner’s request for an evidentiary hearing is denied.
VI. DISCUSSION
Ground One
In Ground One, petitioner argues that the trial court erred in denying his motion to
suppress the statements he made to the police during his post-arrest interview and in
overruling the defense objection to the admission of those statements into evidence at
trial. He alleges that the statements were obtained in violation of his constitutional rights
to remain silent and to counsel.
The Fifth Amendment ensures an accused the right to the presence of legal
counsel during a custodial interrogation. Miranda v. Arizona, 384 U.S. at 474. However,
a subsequent waiver can be established if “the accused himself initiates further
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communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451
U.S. 477, 484-85 (1981). “Any statement given freely and voluntarily without any
compelling influences is, of course, admissible in evidence.” Miranda, 384 U.S. at 478.
Therefore, when an accused in custody requests a lawyer and subsequently makes a
statement to the police, the question is whether the accused was interrogated. Rhode
Island v. Innis, 446 U.S. 291, 298 (1980). An accused’s statement is not the product of a
prohibited interrogation unless it is in response to questions that the police know or
“should know are reasonably likely to elicit an incriminating response from [the]
suspect.” Id. at 301.
After petitioner’s arrest, Sergeant Stoelting read petitioner his Miranda rights.
Petitioner signed a form indicating he understood his rights and requested to speak with
his lawyer. (Doc. 12, Ex. I, Stoelting Dep. at 51.) Sergeant Stoelting briefly left the
interrogation room to get find a jailer to return petitioner to his cell, and Officer Brown
remained in the room with petitioner. (Id.) Petitioner and Officer Brown knew each
other from previous interactions and, while in the room, Officer Brown exchanged
pleasantries with petitioner. (Id., Ex. I, Brown Dep. at 40.) Petitioner then asked Officer
Brown about the victims and petitioner “began giving [Officer Brown] background on
what led up to what happened that evening.” (Id., Brown Dep. at 40). While petitioner
spoke with Officer Brown, Sergeant Stoelting returned to the room, and petitioner asked
Sergeant Stoelting whether Keisha was dead. (Id., Stoelting Dep. at 52.) Upon hearing
that she died and without any prompting by the officers, petitioner stated that he felt
pressure from his relationship with Keisha and that “with her dead it feels like a weight
has been lifted off my shoulders.” (Id., Ex. B at 4, Ex. C at 8-9.)
The Missouri Court of Appeals found that the officers did not interrogate
petitioner. (Id., Ex. D at 4-5.) Considering the evidence in the record, the appellate court
did not unreasonably apply federal law.
The Missouri Court of Appeals also held that petitioner’s claim would fail “even if
we found error—which we do not,” because petitioner was not prejudiced by the
statement’s admission. (Id., Ex. D at 6.) Under Missouri law, “A person commits the
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crime of murder in the first degree if he knowingly causes the death of another person
after deliberation upon the matter.” Mo. Rev. Stat. § 565.020. At trial, the prosecution
presented overwhelming additional evidence demonstrating that petitioner deliberately
committed the crimes. (Id., Ex. J at 57, 67, 71-73.) At trial, the prosecution elicited the
testimony of several eyewitnesses who observed petitioner threaten the decedent’s life
one week prior to her death. (Doc 10, Ex. J at 46, 56, 67, 72.) On November 17, 2005,
petitioner entered Keisha’s apartment, where she and her relatives were. (Id. at 54.)
Petitioner brandished a gun and told Keisha “[t]hat he was waiting on any nigger to come
in and out the house [and] that he was going to kill her and the nigger and her mamma
was going to have to raise the baby.” (Id. at 56-57.) Further, Keisha’s sister testified that
petitioner told her, three weeks prior to the crime, that he would murder Keisha. (Id. at
71-72.) Additionally, at trial, Eddie Luster testified to the following. On November 24,
2005, petitioner entered Keisha’s apartment, brandished a gun upon seeing Luster on the
couch, and ordered Luster into the bedroom where Keisha was sleeping. (Id. at 77-81.)
After some discussion between petitioner and Keisha, petitioner shot Luster three times.
(Id. at 82-83.) Luster fell onto the bed and heard three or four additional shots. (Id. at
83-84.) After petitioner fled and before Luster left to seek help, he observed that Keisha
was unresponsive.

(Id. at 85-86.)

Considering the testimony regarding his intent

adduced at trial, the appellate court did not unreasonably apply federal law in concluding
that petitioner suffered no prejudice as a result of the statement’s admission.
Petitioner also argues that the Due Process Clause requires recording of statements
made by defendants in custody. However, the Eighth Circuit has held that such recording
is not constitutionally required. United States v. Williams, 429 F.3d 767, 772 (8th Cir.
2005).
Accordingly, Ground One is without merit.
Ground Two (a)
Ground Two (a) alleges petitioner’s trial counsel was constitutionally ineffective
for coercing petitioner into waiving his right to a jury trial.

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In Strickland v. Washington, the Supreme Court defined ineffective assistance of
counsel as arising under the Sixth and Fourteenth Amendments. 466 U.S. 668 (1984).
Pursuant to Strickland, petitioners are entitled to federal habeas corpus relief upon a
showing that “counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Id. at 686.
To prevail on a claim of ineffective assistance of counsel, Petitioner must
demonstrate two elements. First, he must show that counsel’s performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at 687–88. There is a strong
presumption that petitioner’s counsel rendered constitutionally effective assistance. Id. at
690.

Counsel's strategic choices made after thorough investigation are virtually

unchallengeable, and decisions following reasonable, but less thorough, investigation are
to be upheld to the extent that they are supported by reasonable judgment. Id. at 690–91.
Second, petitioner must demonstrate actual prejudice by counsel's deficient
performance. Id. at 687. To show prejudice, petitioner must establish that counsel's
professionally deficient performance rendered the outcome of the proceeding unreliable
or fundamentally unfair. Id. at 687; Lockhart v. Fretwell, 506 U.S. 364, 369–70 (1993).
The state initially sought the death penalty against petitioner. (Doc. 12, Ex. A at
3.) The prosecutor offered to waive the death penalty if petitioner agreed to a bench trial.
(Id., Ex. K at 16-17, 27-28.) Petitioner’s lawyers both advised petitioner to accept the
state’s offer. (Id. at 17-18, 30.) One lawyer testified that, due to the “inflammatory
nature” of the case, petitioner’s case was better suited for a bench trial. (Id. at 18.) The
second lawyer testified that “waiving a jury to have the death penalty waived was better
for his murder case,” based on the available evidence. (Id. at 30-31.) Petitioner accepted
the state’s offer and, after a hearing, the trial court determined that the jury trial waiver
was “freely and voluntarily made after consultation with counsel.” (Id., Ex. A at 3.)
“Issues of credibility are left to the discretion of the state courts.” Winfield v.
Roper, 460 F.3d 1026, 1035 (8th Cir. 2006). The post-conviction court determined that
petitioner’s counsel were credible witnesses and that their actions constituted “reasonable
trial strategy.” (Doc. 12, Ex. H at 8.) The Missouri Court of Appeals also rejected
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petitioner’s claim on the merits. (Id. at 7-11.) The court concluded that petitioner’s
counsel “did not fail to inform [petitioner] of his right to a jury trial; nor did they pressure
or coerce him into waiving a jury.” (Id.. Ex. E at 85; Ex. H at 8.) It reasoned that
“[C]redible substantial evidence was presented that [petitioner] was informed by trial
counsel of his fundamental right to a jury; and he knowingly, intelligently, and
voluntarily waived it.” (Id., Ex. H at 11.) The court finds no unreasonable application of
federal law.
Ground Two (a) is without merit.
Grounds Two (b) - (j)
Despite the procedural bar, the court has examined Grounds Two (b) through (j)
on the merits. Grounds Two (b) through (j) allege that petitioner’s trial counsel was
constitutionally ineffective.
In Ground Two (b), petitioner alleges that his counsel was constitutionally
ineffective by refusing to call petitioner to testify. However, petitioner acknowledged at
the post-conviction relief evidentiary hearing that his counsel informed him he could
testify, prepared him to testify, and advised him against testifying after the state
concluded its case at trial. (Doc. 12, Ex. K at 41-42.) In explaining their advice not to
testify, petitioner’s counsel stated that they believed the evidence admitted in the
prosecution’s case was as favorable to petitioner as possible. (Id. at 10, 25.) Further,
they determined petitioner should not expose himself to cross-examination.

(Id.)

Ultimately, petitioner chose not to testify. (Id. at 11, 26.)
The post-conviction court determined that counsel informed petitioner of his right
to testify and that their advice not to testify was reasonable trial strategy. (Id., Ex. E at
84.) This was no unreasonable application of federal law.
Ground Two (b) fails on the merits.
In Ground Two (c), petitioner alleges that trial counsel rendered constitutionally
ineffective assistance of counsel by agreeing to the admission of Officer Brown’s
deposition and Larry Ferrell’s letter without informing petitioner and in violation of the
Confrontation Clause. However, this evidence was admitted in lieu of testimony and
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petitioner suffered no actual prejudice from it because the testimony of both men likely
would have resulted in the same outcome. (Doc. 12, Ex. J at 21.)
In Ground Two (d), petitioner contends his trial counsel rendered constitutionally
ineffective assistance by failing to request a mistrial or new trial due to an illegal search
and seizure. In Ground Two (e), petitioner alleges that trial counsel was constitutionally
ineffective for failing to investigate exculpatory evidence of defenses, including several
witnesses. However, the record contains no evidentiary support for either claim.
In Grounds Two (f) and (g), petitioner argues trial counsel rendered
constitutionally ineffective assistance by failing to call a trajectory expert and for failing
to request a mistrial or a new trial due to the tainted crime scene, respectively. Regarding
Ground Two (f), petitioner concedes that he filed a pretrial motion for appointment of
experts at the state’s expense and that the trial court did not grant it. (Doc. 21 at 16.)
Petitioner suggests no alternative avenue that counsel could have used to obtain expert
testimony.

Accordingly, petitioner fails to show deficient performance.

Given the

factual circumstances of the shootings, including his pre-crime and post-arrest statements,
the likelihood is not substantial that bullet trajectory opinion evidence and evidence of
any change in the crime scene would have led to a different outcome at trial.
Petitioner argues in Ground Two (h) that his trial counsel provided
constitutionally ineffective assistance by failing to object and request a new trial due to
witnesses’ false testimony.

Specifically, Eddie Luster and Sergeant Mills provided

inconsistent trial testimony regarding Luster’s position when he was shot.

Luster

testified that he fell after petitioner shot him, which implies that he was not lying down at
the time he was shot. (Doc. 12, Ex. J at 83.) Sergeant Mills testified that no bullet holes
were found in the walls but mostly around the bed or on the floor, which indicates that
petitioner shot Luster while he was lying down. (Id. at 128.) Nothing in the record gives
substantial support to petitioner's argument that inconsistent trial testimony constitutes
appropriate grounds for habeas relief.

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In Ground Two (i), petitioner alleges that his trial counsel rendered
constitutionally ineffective assistance for failing to suppress evidence obtained by an
illegal search. The record contains no evidentiary support regarding an illegal search.
In Ground Two (j), petitioner contends that his trial counsel provided
constitutionally ineffective assistance for failing to file a motion for a new trial and
properly preserving claims for appeal. As discussed above, each of petitioner’s claims of
constitutionally ineffective assistance of trial counsel fails on the merits. Accordingly,
the totality of trial counsel's actions was not prejudicial to petitioner, and petitioner’s trial
counsel was not constitutionally ineffective in failing to file a motion for a new trial and
preserving these claims for appeal.
Accordingly, Grounds Two (b) through (j) fail on the merits.
Grounds Three (a) – (f)
In Ground Three (a), petitioner argues that appellate counsel rendered
constitutionally ineffective assistance by failing to appeal the insufficiency of evidence
for first-degree assault mens rea element due to evidence of self-defense and sudden
passion. Self-defense is an affirmative defense. State v. Houcks, 954 S.W.2d 636, 638
(Mo. Ct. App. 1997). As a result, plaintiff's claim of insufficient evidence regarding selfdefense lacks merit. Under Missouri law, a finding of sudden passion precludes a
conviction of first-degree murder. State v. Mudgett, 531 S.W.2d 275, 280 (Mo. 1975).
However, here, the finder of fact found deliberation, and, the evidence, as set forth above,
sufficiently supports this finding.
In Ground Three (b), petitioner alleges appellate counsel rendered constitutionally
ineffective assistance by failing to raise on appeal the trial court’s failure to rule on a
pretrial motion for appointment of experts at the state’s expense. As stated, petitioner
argues that bullet trajectory opinion evidence would have proven that he lacked the
required deliberation state of mind when the crimes were committed. (Doc. 21 at 16.)
However, aside from his conclusory argument, the trial evidence, including his own

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statements, both before the crimes and after, indicate that such opinion evidence would
not have led to a different result at trial.
In Ground Three (c), petitioner contends that appellate counsel provided
constitutionally ineffective assistance by failing to raise on appeal the trial court’s error in
admitting testimony that constituted propensity evidence over an objection.

Under

Missouri law, “evidence of uncharged misconduct is inadmissible if it is offered for the
purpose of showing a defendant's propensity to commit crimes.” State v. Driscoll, 55
S.W.3d 350, 354 (Mo. 2001). “However, such evidence may be admitted if it is logically
and legally relevant to establish the defendant's guilt of the crime charged.” Id. Here, the
trial court admitted the challenged testimony to establish petitioner’s state of mind at the
time of the alleged shootings. (Doc. 12, Ex. J at 43.) Accordingly, appellate counsel
reasonably declined to raise this issue on appeal.
In Ground Three (d), petitioner argues that appellate counsel rendered
constitutionally ineffective assistance by failing to raise on appeal the trial court’s
admission of the deposition of Officer Brown and the letter from Larry Ferrell in
violation of the Confrontation Clause. In Ground Three (e), petitioner contends that
appellate counsel was constitutionally ineffective by failing to raise on appeal trial court’s
error in not holding a hearing to determine whether petitioner’s waiver of his right to
testify was voluntary and knowing. In Ground Three (f), petitioner alleges that appellate
counsel rendered constitutionally ineffective assistance by failing to raise the trial court’s
error in declining to acquit petitioner due to the insufficiency of the evidence.
Because petitioner failed to raise the trial court errors giving rise to Grounds Three
(d) – (f) at his trial, the appellate court would have had discretion to apply the plain error
standard of review. State v. Thurman, 272 S.W.3d 489, 496 (Mo. Ct. App. 2008). To
establish plain error, petitioner must “show that the trial court's error so substantially
violated his rights that manifest injustice or a miscarriage of justice results if the error is
not corrected.” Williams v. McKenna, 311 F. 3d 895, 897 (8th Cir. 2002) (quoting State
v. Cole, 71 S.W.3d 163, 170 (Mo. 2002)). Furthermore, an appellate attorney is granted
broad discretion to limit the appeal to issues he views most likely to succeed. Carter v.
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Bowersox, 265 F.3d 705, 716 (8th Cir. 2001). As a result, it is particularly difficult to
establish constitutionally ineffective assistance of appellate counsel based on appellate
counsel’s “failure to raise an issue that, if raised, would have been subject to plain error
review.” Williams, 311 F.3d at 897. Appellate counsel acted reasonably in deciding to
forgo Grounds Three (d) through (f) on appeal. See Pollard v. Delo, 28 F.3d 887, 889–90
(8th Cir. 1994) (appellate counsel not ineffective for failing to raise claim for first time on
appeal). Accordingly, Grounds Three (d) through (f) are without merit.
Further, as set forth above, no prejudice resulted from the admission of the
deposition of Officer Brown and the letter of Larry Ferrell.

Also set forth above,

evidence adduced at trial sufficiently supported petitioner’s convictions. Additionally,
the post-conviction motion court held an evidentiary hearing, which elicited testimony
regarding petitioner’s waiver of his right to testify, and determined that petitioner
considered his attorneys’ advice and decided not to testify. (Doc. 12, Ex. E at 84; Ex. K
at 8-11. 19, 23-26, 40-45.)
Grounds Three (a) through (f) fail on their merits.
VII. CONCLUSION
For the reasons stated above, the petitions of Carl Epkins for a writ of habeas
corpus are denied. Because, petitioner failed to make a substantial showing that he
suffered a violation of a constitutional right, a certificate of appealability is denied. 28
U.S.C. § 2253(c)(2). An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
j
UNITED STATES MAGISTRATE JUDGE
Signed on January 7, 2013.

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