Stewart v. Milburn

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Robert Stewart's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is DENIED. FURTHER the Court finds that, because Petitioner cannot make a substantial sh owing 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). A judgment dismissing this case is filed herewith. Signed by District Judge John A. Ross on 3/26/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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ROBERT STEWART,
Petitioner,

v.
IAN WALLACE 1,
Respondent.

No. 4:11-cv-02208-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Robert Stewart's Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Government responded (Doc. 12) and
Petitioner replied (Doc. 24). For the following reasons, Petitioner's Section 2254 petition is
DENIED and this action is DISMISSED with prejudice.
I.

Introduction and Background

On May 4, 2007, a jury found Petitioner guilty of one count of murder in the first degree
(Count I), two counts of armed criminal action (Counts II & IV), and one count of assault in the
first degree (Count III) (Ex. B at 66-69; Ex. C at 5). The trial court sentenced Petitioner to
concurrent terms of life imprisonment without probation or parole (Count I), five years (Counts
II & IV), and ten years (Count III) in the custody of the Missouri Department of Corrections (Ex
Bat 77-81; Ex.Cat 5).
Petitioner filed a direct appeal raising two claims:
(1) The trial court clearly erred and abused its discretion in failing to grant a mistrial
when the prosecutor told prospective jurors during voir dire that "[s]imply because
1

Petitioner is currently incarcerated at Southeast Correctional Center ("SECC") in Charleston, Missouri (Doc. 1).
Ian Wallace is the current Warden and proper party respondent. See 28 U.S.C. § 2254, Rule 2(a).

someone gets on the stand and says I did it in self-defense, that's not going to be the end
of it"; and
(2) The trial court plainly erred, causing manifest injustice or a miscarriage of justice, in
failing to include the paragraph on withdrawal in self-defense instruction number 12.
(Ex.Cat 14-15). The Missouri Court of Appeals for the Eastern District, finding no error oflaw,
affirmed the judgment (Ex. E).
On April 28, 2009, Petitioner filed a motion for post-conviction relief (Ex. G at 4-30).
On September 9, 2009, with the assistance of counsel, Petitioner filed an Amended Motion (Ex.
G at 38-66). Following an evidentiary hearing held on November 13, 2009 (Ex. F), the Circuit
Court denied Petitioner's motion on February 24, 2010 (Ex. G at 70- 80). On April 12, 2011, the
Missouri Court of Appeals for the Eastern District affirmed the circuit court's denial of the
motion (Ex. J).
On December 19, 2011, Petitioner filed the instant Section 2254 petition in which he
raises the following eight grounds for relief:
(1) The Trial Court erred when it failed to declare a mistrial during voir dire when the
prosecutor made a comment regarding defendant's right not to testify (Doc. 1 at 11-12);
(2) The Trial Court plainly erred when it failed to include a withdrawal instruction in the
self-defense instruction (Doc. 1 at 12);
(3) Trial counsel rendered ineffective assistance of counsel by failing to interview,
properly investigate, and subpoena material eyewitness, L.B. (Doc. 1 at 13);
(4) Trial counsel rendered ineffective assistance of counsel by failing to object at trial to
instruction number 12, the self-defense instruction on the grounds that it failed to include
the withdrawal paragraph (Doc. 1 at 13-14);
(5) Trial counsel rendered ineffective assistance of counsel by failing to submit an
instruction on voluntary manslaughter (Doc. 1 at 14);
(6) The Motion Court erred in rejecting Petitioner's claim that trial counsel was
ineffective for failing to investigate and call L.B. (Doc. 1 at 14);

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(7) The Motion Court erred in rejecting Petitioner's claim that trial counsel was
ineffective for failing to object to the lack of a withdrawal instruction (Doc. 1 at 14); and
(8) The Motion Court erred in rejecting Petitioner's claim that trial counsel was
ineffective for failing to submit a jury instruction on voluntary manslaughter (Doc. 1 at
15).

II.

Analysis

Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). Federal courts may not grant habeas relief on a claim that has
been decided on the merits in State court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States;
or
(2) resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(l)-(2). "A state court's decision is contrary to ... clearly established law if
it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it
confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ...
and nevertheless arrives at a [different] result." Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir.
2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A State court "unreasonably
applies" federal law when it "identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or
"unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new context where
it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000). A State court decision may be

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considered an unreasonable determination "only if it is shown that the state court's presumptively
correct factual findings do not enjoy support in the record." Ryan v. Clarke, 387 F.3d 785, 790791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(l)).

A State court's factual findings are

presumed to be correct. 28 U.S.C. § 2254(e)(l); Wood v. Allen, 558 U.S. 290, 293 (2010).
Review under § 2254(d)(l) is limited to the record 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 State court factual findings lack evidentiary support is required to grant habeas
relief. 28 U.S.C. § 2254(e)(l); Wood, 558 U.S. at 293.
A.

Procedural Bar
A federal habeas court may not consider "a claim rejected by a state court if the decision

of the state court rests on a state law ground that is independent of the federal question and
adequate to support the judgment." Walker v. Martin, 131 S. Ct. 1120, 1127 (2011) (quotation
omitted). The independent state law ground can be either a substantive rule or a procedural
barrier. Id. A discretionary state procedural rule can serve as an adequate ground to bar habeas
review when it is "firmly established" and "regularly followed." Beard v. Kindler, 558 U.S. 53,
60 (2009).
Petitioner's second ground is procedurally barred. The Missouri Court of Appeals for the
Eastern District found that Petitioner failed to raise this issue in his motion for new trial (Ex. E at
7). Missouri Supreme Court Rule 30.20 gives appellate courts the discretionary power to review
such unpreserved claims for plain error. The Appellate Court declined to review the ground for
plain error, finding that, "There are no extraordinary circumstances in this case to justify
reviewing this argument as a matter of plain error" (Id.). This Court is not at liberty to consider
this claim unless Petitioner can demonstrate cause for the default. Clark v. Bertsch, No. 13-

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3379, 2015 WL 1087160, at *3-4 (8th Cir. Mar. 13, 2015) (holding that Hayes governs in the
Eighth Circuit and therefore "a federal habeas court cannot reach an otherwise unpreserved and
procedurally defaulted claim merely because a reviewing state court analyzed that claim for plain
error.") Petitioner has not provided any cause for his failure to comply with state procedural
requirements. Therefore, Ground 2 is denied.
B.

Ground 1: Comment During Voir Dire
In Ground 1, Petitioner asserts that the trial court erred when it failed to declare a mistrial

during voir dire when the prosecutor made a comment regarding defendant's right not to testify
(Doc. 1 at 11-12). During voir dire, the prosecutor made the following statement:
The first area I want to talk about is sometimes in cases involving a shooting the words
self-defense come up in a case. I don't know if it's going to come up in this case. I'm
just talking about in general. Sometimes the words come up in a trial. If a situation like
that comes up, the Judge will then give you an instruction at the end of the case what is
lawful self-defense. That instruction like the other ones we're talking about for murder
first and armed criminal action all of those instructions go back to you to the jury room.
You can look at it. All right.
My only real concern is in those cases, when self-defense may creep into the case, that
everyone here will not simply say, well, the word self-defense was uttered so I'm going
to find that it's self-defense. Can everyone here promise that they will read the
instruction and follow the law on when you can use lawful self-defense? Simply
because someone gets on the stand and says I did it in self-defense, that's not going
to be the end of it. You're going to look at the instruction and decide whether or not
that person did, indeed, use lawful self-defense.
(Ex. A at 114-115) (emphasis added). Petitioner's counsel objected to the statements and moved
for a mistrial (Ex. A at 115). The trial court denied counsel's request finding it was "an
inartfully articulated question" but "obviously unintentional" (Ex. A at 116).

Petitioner's

counsel responded: "I do believe it was probably inadvertent. Just because someone asks it,
inadvertently makes reference to a defendant's testimony inadvertently I don't think is a
standard" (Ex. A at 116). Petitioner's counsel thereafter requested a limiting instruction but,

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upon consideration, withdrew his request (Ex. A at 116-117).
The Fifth Amendment "forbids either comment by the prosecution on the accused's
silence or instructions by the court that such silence is evidence of guilt." Griffin v. State of
California, 380 U.S. 609, 615 (1965). "To warrant a new trial on this ground, the defendant

must demonstrate that a prosecutor's comment was both improper and prejudicial to the
defendant's substantial rights." United States v. Gardner, 396 F.3d 987, 988 (8th Cir. 2005).
"When the prosecutor has neither directly commented on the defendant's silence, nor
demonstrated an intent to draw attention to that silence, the issue is whether the jury would
naturally and necessarily understand the comments as highlighting the defendant's failure to

testify." Id. at 989 (internal quotations omitted) (emphasis in original).
The Appellate Court's decision is not contrary to or an unreasonable application of
federal law. Applying Missouri state case law that parallels the analysis above, the Appellate
Court found that the prosecutor's statement was not a direct reference to petitioner's right not to
testify and did not prejudice Petitioner (Ex.Eat 4). Reviewing the prosecutor's comments in the
context of his entire statement, the Court finds that the jury would not have naturally and
necessarily understood the comments as highlighting defendant's right not to testify. Gardner,
396 F.3d at 989. The prosecutor explicitly noted that he was speaking about self-defense in
general and more specifically about the self-defense instruction. Therefore, Ground 1 is denied.
C.

Ineffective Assistance of Counsel Claims
In order to state a claim of ineffective assistance of trial counsel, Petitioner must meet the

Strickland standard: Petitioner must demonstrate that his counsel's performance was deficient

and that he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient representation means counsel's conduct fell below the conduct of a reasonably

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competent attorney. Id. To establish prejudice, Petitioner must show "a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694. Federal habeas review of a Strickland claim is highly deferential, because
"[t]he question is not whether a federal court believes the state court's determination under the
Strickland standard was incorrect but whether the determination was unreasonable -

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substantially higher threshold." Knowles v. Mirzayance, 556 U.S. 111, 113 (2009) (internal
quotations and citations omitted).
The Court will address Petitioner's claims in three groups, each dealing with the
underlying ineffective assistance of counsel claim and the associated claim that the Motion Court
erred in rejecting the respective ineffective assistance of counsel claim.

1. Testimony of L.B. (Grounds 3 & 6)
In Ground 3, Petitioner asserts that trial counsel rendered ineffective assistance of
counsel by failing to interview, properly investigate, and subpoena material eyewitness, L.B.
(Doc. 1 at 13). Petitioner similarly argues in Ground 6 that the Motion Court erred in rejecting
Petitioner's claim that trial counsel was ineffective for failing to investigate and call L.B. (Doc. 1
at 14).
As discussed above, the Supreme Court holds that judicial scrutiny of counsel's
performance must be highly deferential. Strickland, 466 U.S. at 688-89. "Decisions relating to
witness selection are normally left to counsel's judgment, and this judgment will not be secondguessed by hindsight." Hanes v. Dormire, 240 F.3d 694, 698 (8th Cir. 2001) (citations omitted).
Where some potential witnesses' testimony might have been helpful in rebutting or clarifying
evidence, in order to establish a constitutional violation a habeas Petitioner must establish that
the "proffered testimony was so important as to put counsel's failure to consult with or call [ ]

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witnesses outside the wide range of strategic choices that counsel is afforded." Id The decision
whether to call witnesses . . . or introduce evidence may be a matter of trial strategy. Hall v.
Lubbers, 296 F.3d 685, 697 (8th Cir. 2002); Battle v. Delo, 19 F.3d 1547, 1556 (8th Cir. 1994).

"Strategic decisions made after thorough investigation of law and facts . . . are virtually
unchallengeable, even ifthat decision later proves unwise." Strickland, 466 U.S. at 590 (internal
quotations omitted).
Applying Strickland, the Motion Court determined that "[L.B.] would not have provided
[Petitioner] with a viable defense and that [Petitioner] was not prejudiced by [counsel's] decision
not to call her to testify" (Ex. G at 6). In so-doing, the Motion Court relied on the testimony of
counsel at the evidentiary hearing and the record of the trial court proceedings. The Motion
Court noted that although Petitioner asserted that L.B. would testify that one of the two victims,
Mr. Dansler, had a gun, counsel testified that L.B. made a statement to police that she did not see

the shooting and that she was high on drugs at the time. The Motion Court also questioned
L.B.'s credibility, specifically her bias in favor of her boyfriend, the Petitioner, and her lie to the
police about Petitioner's whereabouts when they came to her house to arrest Petitioner. The
Motion Court additionally noted that at the Rule 29.07 examination, the court specifically asked
Petitioner if counsel had presented all of the witnesses that Petitioner wanted counsel to present
to which Petitioner responded yes. The Appellate Court determined that counsel's decision not
to call L.B. was a reasonable trial strategy and therefore the Motion Court did not clearly err in
denying this claim (Ex. J at 3-4) (citing Boyd v. State, 86 S.W.3d 153, 160 (Mo. App. E.D. 2002)
("Trial counsel's decision not to call a witness is presumed to be trial strategy unless clearly
shown to be otherwise."))
The Missouri courts reasonably applied Strickland. Counsel's decision not to call L.B.

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was a reasonable trial strategy given her potential bias and credibility issues. Accordingly, the
Court finds that neither state court issued a decision that was contrary to federal law or an
unreasonable application of federal law. Therefore, Grounds 3 and 6 are denied.
2. Failure to Object to Self Defense Instruction (Grounds 4 & 7)

Grounds 4 and 7 must also be addressed together. In Ground 4 Petitioner asserts that trial
counsel rendered ineffective assistance of counsel by failing to object at trial to instruction
number 12, the self-defense instruction, on the grounds that it failed to include the withdrawal
paragraph (Doc. 1 at 13-14). Petitioner also argues in Ground 7 that the Motion Court erred in
rejecting Petitioner's claim that trial counsel was ineffective for failing to object to the lack of a
withdrawal paragraph (Doc. 1 at 14).
Again, the Court "does not 'second-guess' trial strategy or rely on the benefit of
hindsight, . . . , and the attorney's conduct must fall below an objective standard of
reasonableness to be found ineffective[.]" Williams v. United States, 452 F.3d 1009, 1013 (8th
Cir. 2006) (citations omitted). The Motion Court determined that there was insufficient evidence
to support inclusion of the withdrawal clause, and therefore counsel did not err in refusing to ask
for that clause to be included in the instruction (Ex. G at 78). The Motion Court reviewed the
trial court testimony of several witnesses, including Petitioner, and found that:
[O]ne gets to the withdrawal clause only if we accept Ms. Moore's testimony that
[Petitioner] was the initial aggressor and reject [Petitioner's] testimony to the contrary, if
we accept Ms. Moore's testimony that [Petitioner] withdrew and ignore [Petitioner's]
testimony that there was no aggression for him to withdraw from, and accept
[Petitioner's] testimony that he shot in self-defense and ignore Ms. Moore's testimony
that suggests otherwise. And we have no evidence of any kind that [Petitioner] clearly
indicated a withdrawal to Mr. Dansler.
(Ex. G at 77) (emphasis in original).
The Motion Court further concluded, "Even if there was sufficient evidence to justify

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using the withdrawal clause, [Petitioner] suffered no prejudice by the failure to do so" (Id). The
Motion Court specifically found:
For a jury to have returned a verdict of not guilty on the assault charge because they
believed that [Petitioner], though he was the initial aggressor, had withdrawn and then
acted in self-defense, would have required that the jury reject central aspects of
[Petitioner's] own account, which failed to depict him as an initial aggressor and failed to
depict him as having withdrawn. It is highly improbable that a jury would have rejected
[Petitioner's] account, and yet found him not guilty.
(Ex. G at 78). The Appellate Court determined that the Motion Court had not clearly erred in
denying Petitioner's claim (Ex. J at 4-5).
The Missouri courts reasonably applied Strickland. Counsel's decision not to object at
trial to instruction number 12, the self-defense instruction, on the grounds that it failed to include
the withdrawal paragraph did not prejudice Petitioner given the conflicting accounts and issues
with Petitioner's credibility.

Accordingly, the Court finds that neither state court issued a

decision that was contrary to federal law or an unreasonable application of federal law.
Therefore, Grounds 4 and 7 are denied.

3. Failure to Submit an Instruction on Voluntary Manslaughter (Grounds 5 & 8)
Finally, Grounds 5 and 8 must be addressed together. In Ground 5, Petitioner asserts that
trial counsel rendered ineffective assistance of counsel by failing to submit an instruction on
voluntary manslaughter (Doc. 1 at 14). Petitioner correspondingly argues in Ground 8 that the
Motion Court erred in rejecting Petitioner's claim that trial counsel was ineffective for failing to
submit a jury instruction on voluntary manslaughter (Doc. 1 at 15).
The Motion Court concluded that counsel "cannot be condemned for failing to offer a
voluntary manslaughter instruction" as there was no evidence of adequate cause (Ex. G at 7879). The Motion Court further determined that Petitioner was not prejudiced by counsel's failure

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to offer the instruction because the jury found Petitioner guilty of first-degree murder, which
requires a finding of deliberation, a finding inconsistent with the sudden passion element of
voluntary manslaughter (Ex. G at 79). The Appellate Court concluded that the Motion Court's
decision was "not clearly erroneous as there is not reasonable probability the jury would have
found differently had counsel offered an instruction for the lesser-included offense of voluntary
manslaughter" (Ex. J at 6) (citing State v. Rutter, 93 S.W.3d 714, 731 (Mo. bane 2002) (finding
that "[w]hen a jury is given the option to convict a defendant of first-degree and second degree
murder, and opts to convict on first-degree murder, there is no reasonable basis to contend the
jury would have found differently had voluntary manslaughter instructions been submitted")).
The Missouri courts reasonably applied Strickland. Counsel's decision not to submit an
instruction on voluntary manslaughter did not prejudice Petitioner given the jury's decision to
convict him of first-degree murder. Accordingly, the Court finds that neither state court issued a
decision that was contrary to federal law or an unreasonable application of federal law.
Therefore, Grounds 5 and 8 are denied.

III.

Conclusion

Accordingly,
IT IS HEREBY ORDERED that Petitioner Robert Stewart's Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
FURTHER the Court finds 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).
A judgment dismissing this case is filed herewith.
Dated this 26th day of March, 2015.

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~.ROSS

ED STATES DISTRICT JUDGE

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