King v. Norman

Filing 26

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the petitions of Antoine King for writ of habeas corpus [# 1 , 14 , 22 ] pursuant to 28 U.S.C. § 2254 are DENIED. IT IS FURTHER ORDERED that the petitioner's moti on to amend his petition by deleting Ground 8 [# 25 ] is GRANTED. IT IS FURTHER ORDERED that the petitioner's motion to appoint counsel [# 23 ] is DENIED. IT IS FURTHER ORDERED that the petitioner's motion related to a particular trial exhibit [# 16 ] is DENIED. IT IS FURTHER ORDERED that petitioner's motion to amend or correct his petition [# 21 ] is DENIED AS MOOT. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not grant a Certificate of Appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 03/12/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTOINE KING,
Petitioner,
vs.
JEFF NORMAN,
Respondent.

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Case No. 4:12 CV 002 CDP

MEMORANDUM AND ORDER
Petitioner Antoine King is currently incarcerated at the Jefferson City
Correctional Center in Jefferson City, Missouri. King was convicted by a jury of
two counts of first-degree murder, two counts of armed criminal action, one count
of first-degree robbery, and one count of first-degree assault. He received a
sentence of life imprisonment without the possibility of parole for each murder
count, 30 years’ imprisonment for each count of armed criminal action, 30 years’
imprisonment for the robbery, and 15 years’ imprisonment for the assault.
This matter is before the Court on King’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. King raises ten grounds for relief. One of those ten
grounds is procedurally defaulted, and the other nine grounds fail on the merits. I
will therefore deny his petition for the writ.

I.

Factual Background
The evidence presented at trial showed that on August 4, 1997, co-defendant

Cleveland Jackson was on the phone in his basement, speaking to someone about
plans to rob a person named Dennis. Cleveland Jackson’s cousin, Enoch Bolden,
was also in the basement and overheard Jackson’s end of the conversation.
Bolden testified at trial that the other person on the phone was “Twan,” the
petitioner, and they planned to meet up with another man named “Jet” – later
identified as Christopher Ford – to commit a robbery that night. Bolden said that
Jackson was picked up from the house that night and left to commit the robbery.
The three men – Cleveland Jackson, petitioner Antoine King, and
Christopher Ford – arrived at the apartment building where Dennis McAlister and
his wife, Tracy McAlister, resided. They got into the locked building when
Kenyon Jackson, another resident, opened the door to walk his girlfriend out to her
car. Kenyon Jackson testified that the three men rushed by him and went inside.
Adrian McAlister – Dennis McAlister’s daughter, who was ten years old at the
time – testified that the three men burst through the door of the McAlisters’
apartment, armed with guns. They ordered Dennis McAlister to get on the living
room floor and dragged Tracy McAlister out of the bedroom and into the living
room. They ordered her on the ground, and she laid down and pulled a comforter
off the couch to cover herself and Adrian McAlister. Dennis McAlister stated

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numerous times, “Don’t hurt my pregnant wife and daughter.” He also said,
“Chris, why it got to be like this?”
When the McAlisters were on the ground, the gunmen shot Dennis
McAlister three times and Tracy McAlister four times. Adrian McAlister was not
injured. The men left the apartment, and on their way out, they ran past Kenyon
Jackson again. Adrian stayed under the blanket for some time before calling her
mother for help, and when the police arrived, she gave a description of the
gunmen. She later identified King and Cleveland Jackson in lineups.
Cleveland Jackson, King, and Ford returned to Cleveland Jackson’s home.
They went into the basement and changed their clothes, and they divided the
money they had in their pockets, which was close to $15,000. They gave Enoch
Bolden, who was still in the basement, $250 and a gold chain, which he later
pawned. Cleveland Jackson also said he needed to get rid of two pistols, and he
gave them to Bolden. Bolden took the guns and discarded two bullets in a park on
his way home. Later, Cleveland Jackson contacted Bolden to see if he still had the
weapons. By that time, Bolden had heard about the murders and assumed that
Cleveland Jackson, King, and Ford committed them, so he contacted a St. Louis
County detective to turn in the weapons. He met with St. Louis City homicide
detectives at that time and gave an interview.

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The bullets recovered from the victims’ bodies were tested and found to be
fired from the two weapons turned in by Bolden – a Jennings .22 long rifle
calibered semi-automatic pistol and a Lorcin .380 automatic calibered semiautomatic pistol. The police also found a note at the scene with “Twan R. King”
written on it, along with Antoine King’s address. There was testimony that
Dennis McAlister had been seen with Ford months before the incident, and that he
knew King from growing up together. King was also seen with Cleveland Jackson
on occasion.
II.

Procedural Background
King was charged by indictment with two counts of first-degree murder, two

counts of armed criminal action, one count of first-degree robbery, and one count
of first-degree assault. King was tried with co-defendant Cleveland Jackson, but
the trial court granted Christopher Ford’s motion to sever. At trial, in addition to
the evidence presented by the state as explained above, the defendants presented
witnesses in their defense, including alibi witnesses for the night of the incident.
The jury found King guilty on all six charges. At the penalty phase of the
capital case, the jury assessed punishment as life imprisonment without the
possibility of parole on the first-degree murder counts. The judge then sentenced
King to life imprisonment without the possibility of parole for each murder count,
30 years’ imprisonment for each count of armed criminal action, 30 years’

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imprisonment for the robbery, and 15 years’ imprisonment for the assault. All five
sentences were to run consecutively.
King appealed his conviction to the Missouri Court of Appeals, arguing that:
(1) the trial court erred in permitting Enoch Bolden to testify and refusing to grant
King’s request for a continuance related to this testimony; (2) the trial court erred
in excluding King’s evidence that Adrian McAlister failed to correctly identify
Christopher Ford in a lineup; (3) the trial court erred in excluding King’s evidence
that Adrian McAlister identified two different people in lineups that both
contained King; (4) the trial court erred in allowing Bolden to testify about the
reasons for his request to be placed in witness protection; (5) the trial court erred
in excluding evidence that government witness Mark Smith lied under oath in a
previous trial; (6) there was insufficient evidence to support the first-degree
murder convictions; and (7) the trial court erred in allowing Adrian McAlister’s
testimony that her father said, “Don’t hurt my pregnant wife.” The Missouri Court
of Appeals affirmed the conviction in a per curiam unpublished opinion on
January 16, 2001. State v. King, 41 S.W.3d 528 (Mo. Ct. App. 2001) (Resp. Exh.
E).
On July 23, 2001, Barnes filed a pro se motion in the trial court for postconviction relief under Missouri Rule 29.15. Counsel was appointed to represent
King, and an amended motion for post-conviction relief was filed on July 24,

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2003. The amended motion raised sixteen claims of ineffective assistance of
counsel: (1) trial counsel failed to cross-examine Adrian McAlister regarding her
selection of someone other than King from a photo lineup; (2) trial counsel failed
to call Demetrious Sanders to testify regarding a conversation he had with Kenyon
Jackson, in which Jackson provided information contrary to his trial testimony; (3)
trial counsel failed to call Quentin Womack as an alibi witness; (4) trial counsel
failed to call David Stokely as a defense witness; (5) trial counsel failed to object
when Kenyon Jackson suggested that he was in future danger from the defendants;
(6) trial counsel failed to object to the state’s questions that vouched for Enoch
Bolden’s truthfulness; (7) trial counsel failed to call Evelyn Harris as an alibi
witness; (8) trial counsel failed to demonstrate that King was not residing at the
address found on a piece of paper at the victims’ residence; (9) trial counsel failed
to supply the Court of Appeals with plaintiff’s exhibit 3 from the suppression
hearing and state’s exhibit 87; (10) trial counsel failed to make an offer of proof
regarding Adrian McAlister’s misidentification of Christopher Ford; (11) trial
counsel failed to object to Enoch Bolden’s testimony regarding his desire to be
placed in witness protection and failed to renew the motion to sever when this
information was elicited; (12) trial counsel failed to call King to testify on his own
behalf; (13) trial counsel failed to ensure that King was present for parts of the
voir dire, including the exercise of strikes for cause and peremptory challenges;

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(14) trial counsel impermissibly waived King’s rights to a speedy trial; (15) trial
counsel failed to safeguard King’s rights to a fair trial before a fair and impartial
judge; and (16) appellate counsel failed to assert on appeal that the trial court erred
in declining to sever King’s trial from Cleveland Jackson’s. The motion court
held an evidentiary hearing and denied all of King’s claims on July 28, 2010.
King appealed the denial of his motion to the Missouri Court of Appeals,
asserting four arguments: (1) the motion court erred in denying his ineffective
assistance of trial counsel claim for failing to cross-examine Adrian McAlister
regarding her previous identification of someone other than King in a photo lineup
as the perpetrator; (2) the motion court erred in denying his ineffective assistance
of trial counsel claim for failing to call Quentin Womack as an alibi witness; (3)
the motion court erred in denying his ineffective assistance of trial counsel claim
for failing to object to testimony from Kenyon Jackson and Enoch Bolden
regarding their fear of retaliation from defendants; and (4) the trial court erred in
denying his ineffective assistance of appellate counsel claim for failing to appeal
the denial of King’s motion to sever. On May 24, 2011, the Missouri Court of
Appeals affirmed the denial of King’s post-conviction motion. King v. State, 341
S.W.3d 806 (Mo. Ct. App. 2011) (Resp. Exh. K).
On March 3, 2012, King filed a motion with the Missouri Court of Appeals
for recall of the mandate because of a conflict of interest of Judge Gary Gaertner,

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who sat on the panel of his post-conviction appeal. The court granted the motion
and vacated its earlier opinion, and it resubmitted the appeal to a new panel on
April 2, 2012. On April 10, 2012, the new panel of the Missouri Court of Appeals
again affirmed the denial of King’s post-conviction motion. King v. State, 364
S.W.3d 260 (Mo. Ct. App. 2012) (Resp. Exh. J).
III.

Grounds Raised
King now seeks federal habeas corpus relief, asserting the following ten

grounds:
(1)
The trial court erred in permitting the hearsay testimony of
Enoch Bolden regarding telephone conversations between Cleveland
Jackson and another person because it violated the Confrontation
Clause, and he received ineffective assistance of appellate counsel for
failing to raise this claim on direct appeal;
(2)
His right to confront witnesses was violated by the trial court’s
decision to allow Enoch Bolden to testify and to deny King’s motion
for a continuance based on this testimony, and the state committed
prosecutorial misconduct for failing to produce letters written by
Bolden in advance of his testimony;
(3)
His right to confront witnesses was violated by the trial court’s
exclusion of King’s evidence regarding Adrian McAlister’s
misidentification of former co-defendant Christopher Ford;
(4)
His right to confront witnesses was violated by the trial court’s
exclusion of King’s evidence regarding Adrian McAlister’s
misidentification of King;
(5)
His right to confront witnesses was violated by the trial court’s
exclusion of King’s evidence that Mark Smith lied under oath in a
different trial;

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(6)
There was insufficient evidence of King’s guilt as to the firstdegree murder charges;
(7)
King’s trial counsel was ineffective for failing to call Quentin
Womack as an alibi witness;1
(8)
King’s trial counsel was ineffective for failing to object to
Kenyon Jackson’s testimony that he feared the defendants and to
Enoch Bolden’s testimony that he entered the witness protection
program because of a fear of retaliation from the defendants;
(9)
King’s trial counsel was ineffective in cross-examining Adrian
McAlister by failing to show her a lineup in which she had previously
identified someone other than King as the perpetrator; and
(10) All of the judges on King’s original panel for his postconviction appeal – Judges Gary Gaertner, Patricia Cohen, and Mary
Kay Hoff – should have recused themselves from the re-hearing of
King’s appeal because of Judge Gaertner’s conflict of interest.
IV.

Discussion
Respondent argues that Count 1 is procedurally barred because King failed

to properly exhaust his state remedies.2 Regarding the remaining grounds,
respondent argues that they fail on the merits.
Exhaustion of Remedies and Procedural Bar: Ground 1
1

In King’s first amended petition, filed May 17, 2012, he included an additional
allegation, labeled as Ground 8: he received ineffective assistance of trial counsel for failing to
make an offer of proof regarding Adrian McAlister’s misidentification of former co-defendant
Christopher Ford. However, he removed this ground when he filed his second amended
petition on August 30, 2012. He also filed a motion to delete Ground 8 from his first amended
petition on January 11, 2013, which I will grant. This claim therefore will not be considered in
his motion for relief.
2

Respondent argues that Ground 8 of King’s amended petition is also procedurally
barred, but because King withdrew that claim in his second amended petition, I need not
consider it.
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To preserve issues for federal habeas review, a state prisoner must fairly
present his or her claims to state courts during direct appeal or in post-conviction
proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). Under Missouri
law, “allegations of trial court error, reviewable on direct appeal, are not
cognizable in a post-conviction motion.” Oden v. State, 320 S.W.3d 198, 201
(Mo. Ct. App. 2010). Failure to raise a claim in a post-conviction appeal results in
abandonment of that claim. Sweet, 125 F.3d at 1150 (citing Reese v. Delo, 94 F.3d
1177, 1181 (8th Cir. 1996)).
A state prisoner who fails “‘to follow applicable state procedural rules [for]
raising the claims’ . . . is procedurally barred from raising them in a federal habeas
action, regardless of whether he has exhausted his state-court remedies.” Sweet,
125 F.3d at 1151 (citation omitted) (citing Coleman v. Thompson, 501 U.S. 722,
731-32 (1991)). “[A] prisoner must ‘fairly present’ not only the facts, but also the
substance of his federal habeas corpus claim.” Abdullah v. Groose, 75 F.3d 408,
411 (8th Cir. 1996) (en banc) (citation omitted) (citing Anderson v. Harless, 459
U.S. 4, 6 (1982) (per curiam)). “Fairly present” means that state prisoners are
required to “‘refer to a specific federal constitutional right, a particular
constitutional provision, a federal constitutional case, or a state case raising a
pertinent federal constitutional issue’ . . . .” Id. at 411-12 (quoting Ashker v.
Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993)). A state law claim raised in state

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court that “is merely similar to the federal habeas claim is insufficient to satisfy the
fairly presented requirement.” Id. at 412 (citing Duncan v. Henry, 513 U.S. 364,
366 (1995) (per curiam)).
The Supreme Court has held that a state prisoner can overcome procedural
default if he or she can “demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.” Coleman,
501 U.S. at 750. The Court explained that “‘the existence of cause for a
procedural default must ordinarily turn on whether the prisoner can show that
some objective factor external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.’” Id. at 753 (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)). Furthermore, to establish actual prejudice, a petitioner must
demonstrate that the errors “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). In order to assert the fundamental miscarriage
of justice exception, “a petitioner must make a showing of actual innocence.”
Weeks v. Bowersox, 119 F.3d 1342, 1350 (8th Cir. 1997) (citing Schlup v. Delo,
513 U.S. 298, 321 (1995)).
In Ground 1, King argues that the trial court violated King’s rights under the
Confrontation Clause by allowing Enoch Bolden to testify, and he received

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ineffective assistance of appellate counsel for failing to raise this claim on direct
appeal. This argument is different from the related argument he raised on direct
appeal: that the trial court erred in permitting Enoch Bolden to testify and refusing
to grant King’s request for a continuance related to this testimony. Though his
argument on direct appeal referenced the Confrontation Clause, it centered on
King’s opportunity to investigate Bolden’s testimony and adequately prepare for
trial. Similarly, the only argument he raised on his post-conviction appeal related
to Bolden’s testimony was that he received ineffective assistance of trial counsel
for failure to object to Bolden’s testimony regarding his fear of retaliation from the
defendants. This substantive Confrontation Clause claim was not raised either on
direct appeal or in his postconviction appeal. King did not fairly present Ground 1
to the state court, so the issue was not preserved for federal habeas review.
Therefore, his claim is procedurally defaulted.
King does allege ineffective assistance of appellate counsel as the cause for
his procedural default. However, his opportunity to raise this ineffective
assistance of counsel claim was in his post-conviction motion before the trial
court. He did not raise that claim before the trial court so, to the extent that it
raises a separate claim of ineffective assistance of counsel, it is procedurally
defaulted. Thus, it may not be used to excuse the procedural default of his

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substantive Confrontation Clause claim. Therefore, Ground 1 cannot be
considered for habeas review.
Remaining Grounds for Relief
Under section (d) of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, when a claim has been adjudicated on the
merits in state court, an application for a writ of habeas corpus shall not be granted
unless the state court 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).
In Shafer v. Bowersox, the Eighth Circuit articulated the standards for
subsection (1) as follows:
The “contrary to” clause is satisfied if a state court has arrived “at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law” or “confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent” but
arrives at the opposite result. A state court “unreasonably applies”
clearly established federal law when it “identifies the correct
governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.” A case cannot be overturned merely because it incorrectly
applies federal law, for the application must also be “unreasonable.”

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329 F.3d 637, 646-47 (8th Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362,
405, 411, 413 (2000)).
Under subsection (2), “a state court decision involves ‘an unreasonable
determination of the facts in light of the evidence presented in state court
proceedings,’ only if it is shown by clear and convincing evidence that the state
court’s presumptively correct factual findings do not enjoy support in the record.”
Lomholt v. Iowa, 327 F.3d 748, 752 (quoting 28 U.S.C. § 2254(d)(2)) (citing 28
U.S.C. § 2254(e)(1); Boyd v. Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001)).
Ground 2: Permitting Bolden to Testify and Denying Motion to Continue
In Ground 2, King raises numerous arguments regarding Enoch Bolden’s
testimony, several of which raise only state law issues. He argues that the trial
court erred in allowing Bolden to testify, that he should have been able to conduct
additional voir dire on issues related to Bolden’s testimony, that the trial court
erred in denying his motion for a continuance to prepare for Bolden’s testimony,
and that the trial court should have excluded Bolden’s testimony because of
prosecutorial misconduct. The entirety of this claim was presented on direct
appeal and rejected by the Missouri Court of Appeals.
In this petition, King also raises allegations that these actions by the trial
court violated his rights under the Confrontation Clause. Specifically, he argues
that the court’s actions in allowing Bolden to testify and denying a continuance for

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him to prepare for Bolden’s testimony denied him a reasonable opportunity to
confront Bolden and prepare a defense.
As to the claim regarding King’s desire to voir dire the jury on snitch
testimony, the Missouri Court of Appeals stated:
[King] initially contends that Bolden should not have been
permitted to testify because he was held in contempt before trial and
excluded as a witness on the fifth day of trial, due to his refusal to
testify. [King] argues that he detrimentally relied on the court’s ruling
excluding Bolden as a witness because it was in effect throughout voir
dire, thereby obviating his need to voir dire the venire panel on “snitch
testimony.”
. . . [I]n light of the evidence against [King], we find it unlikely
that the outcome of the trial was affected by [King’s] inability to voir
dire the panel on snitch testimony. In addition to Bolden’s testimony,
two witnesses identified [King] as one of the gunmen seen in the
McAlisters’ apartment and fleeing from the scene of the crimes. There
was also a piece of paper in the McAlisters’ apartment with [King’s]
address and the name “Twan R. King” written on it. Accordingly, we
cannot say the trial court abused its discretion in failing to exclude
Bolden as a witness on this basis.
Resp. Ex. E, at 2-3. Regarding the request for a continuance to prepare for
Bolden’s testimony, the Missouri Court of Appeals rejected the claim as follows:
The trial court reversed its decision to exclude Bolden on the day
opening statements were given. [King] maintains the court should have
excluded Bolden or granted a continuance until he could better prepare
for his opening statement by deposing Bolden. The record indicates,
however, that [King] was able to depose Bolden prior to trial.
Although Bolden refused to answer questions pertaining to his
girlfriend, [King] was subsequently able to depose her as well prior to
trial. [King] does not contend that Bolden’s recalcitrance deprived him
of any other relevant information. Thus, [King] was aware of the
nature of Bolden’s testimony prior to opening. As such, we find that the
trial court did not abuse its discretion or prejudice [King] by refusing to
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exclude Bolden or grant a continuance so as to give [King] additional time
to depose Bolden prior to opening statements.
Resp. Ex. E, at 3-4. As to Bolden’s claims of prosecutorial misconduct, he first
argues that the government failed to timely disclose letters written by Bolden to
the prosecution. The Missouri Court of Appeals ruled that King did not suffer any
prejudice from the late disclosure of these letters:
The record indicates that [King] was aware of the existence of
the letters prior to trial, thus he cannot claim surprise. On the day after
opening, [King] requested that the State disclose any communications
in which Bolden requested benefits in exchange for his testimony. The
State turned over four letters to the trial court, which it reviewed in
camera. The court then ordered the disclosure of three of the letters to
the defense prior to Bolden’s testimony. [King] had the opportunity to
depose Bolden about the letters on the evening prior to his testimony.
During trial, [King] attacked Bolden’s credibility based upon his
demands in the letters for numerous benefits from the State in
exchange for his testimony. Defendant does not specify what more, if
anything, he would have done had the letters been disclosed earlier. . .
.
Resp. Ex. E, at 4-5. Finally, King argued that the state committed prosecutorial
misconduct by inducing the United States Attorney to file federal charges against
Bolden to coerce him to testify. The court rejected the claim on the basis that the
allegation was purely speculative, and on the basis that there is no authority stating
that the government cannot bring valid charges against its witness to induce that
witness to testify. Resp. Ex. E, at 5.
King argues in his petition that the trial court’s alleged errors violated his
rights under the Confrontation Clause. His first argument is that the court should
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not have allowed Bolden to testify after he was held in contempt for refusing to
testify and refusing to take the oath. The Supreme Court has held:
The Confrontation Clause contains no guarantee that every witness
called by the prosecution will refrain from giving testimony that is
marred by forgetfulness, confusion, or evasion. To the contrary, the
Confrontation Clause is generally satisfied when the defense is given a
full and fair opportunity to probe and expose these infirmities through
cross-examination, thereby calling to the attention of the factfinder the
reasons for giving scant weight to the witness’ testimony.
Delaware v. Fensterer, 474 U.S. 15, 21-22 (1985). In this case, King’s counsel
had ample opportunity to cross-examine Bolden at trial, and she did so through
several rounds of re-cross examination. These questions covered all aspects of
Bolden’s testimony, including his potential federal charges, the letters he wrote to
the prosecution, and his refusal to testify for several weeks before trial.
Furthermore, he did take an oath to tell the truth before he testified on direct and
cross-examination before the jury, even if he had previously refused to do so.
Therefore, I find that there is no merit to King’s allegation that his rights under the
Confrontation Clause were violated.
In reality, King’s allegation regarding the trial court’s decision to allow
Bolden to testify primarily amounts to a claim of evidentiary error by the state
court, which King is trying to turn into a Confrontation Clause violation. “A state
court’s evidentiary rulings can form the basis for federal habeas relief under the
due process clause only when they were so conspicuously prejudicial or of such

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magnitude as to fatally infect the trial and deprive the defendant of due process.”
Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996). This evidentiary ruling did
not deprive the defendant of due process, and King is not entitled to habeas relief
for this state law evidentiary ruling. First, King has not articulated exactly what
could have been erroneous about the state court’s decision to allow Bolden to
testify after previously being held in contempt. Once Bolden decided to take the
oath and testify in court, there is no basis for deeming him incompetent to testify.
Furthermore, even had this ruling been erroneous, King has not shown that he was
prejudiced by the decision to allow Bolden to testify given the weight of evidence
against him. There is no basis for King’s bare allegation that the trial court erred
by allowing Bolden to testify.
King also argues that he did not have an opportunity to voir dire the jury
panel regarding snitch testimony, as it related to Bolden’s testimony. “[T]he
conduct of voir dire is generally left to the trial court’s sound discretion.”
Nicklasson v. Roper, 491 F.3d 830, 835 (8th Cir. 2007). In order for particular
questioning to be “constitutionally compelled . . . it is not enough that such
questions might be helpful. Rather, the trial court’s failure to ask these questions
must render the defendant’s trial fundamentally unfair.” Id. (quoting Mu’Min v.
Virginia, 500 U.S. 415, 425-26 (1991)).

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The decision of the Missouri state court regarding King’s claimed inability
to voir dire jury panel members regarding snitch testimony was not contrary to or
an unreasonable application of these federal law principles. As the Missouri Court
of Appeals stated, King does not explain the particular questions he would have
asked the jury, other than merely referencing “snitch” testimony. This lack of
specificity makes it difficult to analyze his claim on the merits. However,
regardless of whether Bolden should have been excluded from testifying because
of King’s inability to question potential jurors about snitch testimony, King has
not demonstrated any prejudice from the trial court’s decision to allow Bolden to
testify on this basis. The weight of the evidence against King was overwhelming,
notwithstanding Bolden’s testimony. King has not demonstrated that his inability
to voir dire jurors regarding one particular witness’s testimony rendered his trial
fundamentally unfair. Therefore, habeas relief is not warranted on this basis.
King alternatively argues that when the trial court decided to allow the
testimony of Enoch Bolden, it should have granted his motion for a continuance to
prepare for that testimony. He argues that he was deprived of a meaningful right
to confront Bolden by his inability to adequately prepare for Bolden’s testimony.
The Supreme Court has stated that “[t]he matter of continuance is traditionally
within the discretion of the trial judge, and it is not every denial of a request for
more time that violates due process even if the party fails to offer evidence or is

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compelled to defend without counsel.” Ungar v. Sarafite, 376 U.S. 575, 589 (U.S.
1964). Thus, “a constitutional violation occurs only where the court exhibits an
unreasoning and arbitrary insistence upon expeditiousness in the face of
justificable request for delay.” United States v. Bonilla-Siciliano, 643 F.3d 589,
591 (8th Cir. 2011) (internal quotation marks and citation omitted). “To prevail,
[King] must establish that the court’s decision was so egregious that it was
fundamentally unfair.” Id. (internal quotation marks and citation omitted).
The decision of the Missouri state court to deny King’s motion for a
continuance was not contrary to or an unreasonable application of federal law.
The denial was not fundamentally unfair because King’s counsel did, in fact, have
an opportunity to depose Bolden prior to his testimony. He also received the
letters written by Bolden to the prosecution before he testified and was able to
impeach him with their contents.3 King presents no basis for his claim that the
denial of a continuance prejudiced him in any way. Therefore, this claim is
without merit.
As to his remaining claim of prosecutorial misconduct, King argues that the
state impermissibly coerced Bolden to testify by working with the federal
government to bring charges against him related to his conduct in this case. King
3

Because King was able to use these letters in his cross-examination of Bolden, he did
not suffer any prejudice by their late production by the government. Thus, there is no basis for
his argument that Bolden’s testimony should have been excluded based on this allegation of
prosecutorial misconduct.
- 20 -

does not cite any authority that prohibits the federal government from bringing
charges that are appropriate under the law and supported by a proper factual basis.
This sort of inducement does not appear to be substantially different from granting
a witness immunity from prosecution in exchange for his testimony. Therefore,
this claim does not warrant habeas relief. The entirety of King’s Ground 2 is
without merit.
Ground 3: Exclusion of Evidence Regarding Adrian McAlister’s Misidentification
of Ford
King argues in Ground 3 that the trial court erred in excluding evidence
regarding Adrian McAlister’s misidentification of former co-defendant
Christopher Ford. He claims that the exclusion of this evidence violated his rights
under the Confrontation Clause to meaningfully confront this witness, as the
reliability of her identification was never put before the jury.
At trial, King sought to cross-examine Adrian McAlister regarding her
misidentification of Christopher Ford in a live lineup – by using a photograph of
that lineup as an exhibit – and then argue that her inability to identify Ford cast
doubt on her ability to accurately identify King in a lineup. This claim was
presented to the Missouri Court of Appeals on direct appeal, but that court ruled
that the claim was not preserved for appellate review because King failed to make
an adequate offer of proof when the trial court prohibited the requested cross-

- 21 -

examination. However, it then went on to consider his claim on the merits, so I
will consider it in my review as well. See Sweet v. Delo, 125 F.3d 1144, 1150 (8th
Cir. 1997) (“When a state court decides an issue on the merits despite a possible
procedural default, no independent and adequate state ground bars consideration
of that claim by a habeas court.”).
Regarding his argument under the Confrontation Clause, King alleges that
he was denied the opportunity meaningfully confront Adrian McAlister regarding
the reliability of her identification of Christopher Ford in the live lineup.
Although the Sixth Amendment protects a broad right to cross-examine witnesses,
“this guarantee . . . is not without limitation.” United States v. Triplett, 104 F.3d
1074, 1079 (8th Cir. 1997). “[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” United States v. Klauer, 856 F.2d 1147, 1149 (8th Cir.
1988). “Reversal of a [trial] court’s decision to limit cross-examination is
warranted, therefore, only where there has been clear abuse of discretion, and a
showing of prejudice to the defendant.” Triplett, 104 F.3d at 1079 (internal
quotation marks and citation omitted).

- 22 -

In deciding to exclude cross-examination into this area of Adrian
McAlister’s testimony, the trial court concluded that it was “too big of a leap” to
suggest that because she misidentified Christopher Ford in a live lineup, she also
could have been mistaken when she correctly identified King and Jackson. The
court explained that there could be many different explanations for Adrian
McAlister’s misidentification of Ford. Because King was able to elicit the same
information – namely, Adrian McAlister’s misidentification of Christopher Ford in
a live lineup – through another witness as he sought to elicit through crossexamination of Adrian McAlister, he did not suffer any prejudice from the trial
court’s determination that the cross-examination was not appropriate. King has
not demonstrated that the outcome of his trial would have been different had he
been able to cross-examine Adrian McAlister about this misidentification. This
evidentiary claim therefore does not implicate the Confrontation Clause.
As with Ground 2, this claim essentially challenges a state-law evidentiary
ruling, which King is attempting to convert into a Confrontation Clause violation.
When the Missouri Court of Appeals addressed this issue as a state-law
evidentiary question, it held that King “suffered no prejudice from his inability to
cross-examine Adrian regarding her misidentification of Ford, as the evidence was
later introduced by other means,” as King was able to “elicit[] the
misidentification on cross-examination of a police detective and reference[] it in

- 23 -

closing argument.” Resp. Ex. E, at 7. In making this decision, the Missouri Court
of Appeals did not rule contrary to federal law or unreasonably determine the facts
based on the above analysis. Therefore, I conclude that this evidentiary ruling did
not violate King’s due process rights, and Ground 3 is without merit.
Ground 4: Exclusion of Evidence Regarding Adrian McAlister’s Misidentification
of King
King argues in Ground 4 that the trial court erred in excluding evidence
regarding Adrian McAlister’s misidentification of King in a lineup. King raised
the same claim in his direct appeal. In this petition, he also argues that the
exclusion of this evidence violated his rights under the Confrontation Clause. The
circumstances surrounding this argument are confusing, but the Missouri Court of
Appeals summarized them and rejected King’s claim as follows:
On direct examination, Adrian was shown a photograph of
[King’s] lineup, marked “State’s Exhibit 87.” Adrian correctly
identified [King] as the person in position number three.
On cross-examination, [King] sought to impeach Adrian’s
identification of [King] with an allegedly inconsistent statement from a
prior hearing on Defendant’s motion to suppress identification.
During the hearing on the motion to suppress, Adrian was
shown two identical photographs of [King’s] lineup. One of the
photographs was marked “State’s Exhibit 3,” while the other
photograph was marked “Plaintiff’s Exhibit 3.” When shown “State’s
Exhibit 3,” Adrian correctly identified [King] as the person in position
number three. When shown “Plaintiff’s Exhibit 3,” however, Adrian
identified the person on the end.
On cross-examination, [King] sought to point out the
inconsistency . . . .
...
- 24 -

Here, [King] failed to ask Adrian any questions during trial
concerning “Plaintiff’s Exhibit 3.” [King] only asked her about the
identification she made from “State’s Exhibit 3,” which was not
inconsistent with her identification of [King] from “State’s Exhibit 87”
during trial. Under these circumstances, we find that the trial court did
not abuse its discretion in refusing to allow [King] to “impeach”
Adrian with evidence of Adrian’s misidentification of [King] from
“Plaintiff’s Exhibit 3.”
Resp. Ex. E, at 7-10. In affirming the trial court’s exclusion of this evidence, the
Missouri Court of Appeals analyzed this proffered evidence as a prior inconsistent
statement. Because it held that King’s counsel did not adequately question Adrian
to lay the foundation for impeachment by a prior inconsistent statement, the court
affirmed the exclusion of trial testimony from the court reporter present at the
suppression hearing regarding Adrian’s answers to questions about “Plaintiff’s
Exhibit 3.”
As explained in Ground 3 above, a trial court’s decision to limit crossexamination only violates the Confrontation Clause if it constituted a “clear abuse
of discretion” or “prejudice[d] the defendant.” Triplett, 104 F.3d at 1079. Adrian
McAlister correctly identified King in the photograph of the lineup shown at trial,
as well as in “State’s Exhibit 3” at the suppression hearing. Further, other
witnesses also identified King as one of the perpetrators. Allowing crossexamination into Adrian McAlister’s misidentification of King in “Plaintiff’s
Exhibit 3” likely would not have affected the outcome of the trial given the weight
of the other evidence against him. In fact, it may have confused the jury regarding
- 25 -

which identifications even occurred, given the confusion between use of the
exhibit names “State’s Exhibit 3” and “Plaintiff’s Exhibit 3” in the suppression
hearing. At best, the jury could have used this impeachment evidence to conclude
that Adrian McAlister misidentified King in a photograph of a lineup – a lineup in
which she correctly identified King when she participated live – shown to her for a
second time in the suppression hearing. The value of this potential impeachment
is marginal, and the state court’s decision to exclude this evidence did not
prejudice King. Therefore, this ruling by the trial court did not violate King’s
rights under the Confrontation Clause.
Rather, this issue is more appropriate analyzed as a state-law evidentiary
ruling. The trial court’s ruling restricting examination into Adrian McAlister’s
misidentification of King and the appellate court’s decision affirming that ruling
were based on Missouri evidentiary law for admission of prior inconsistent
statements. “It is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.” Brown v. Luebbers, 371 F.3d 458,
466 (8th Cir. 2004) (internal quotation marks and citation omitted). Therefore,
this evidentiary claim can only rise to the level of a constitutional violation such as
to support habeas relief if it was “so conspicuously prejudicial or of such
magnitude as to fatally infect the trial and deprive the defendant of due process.”
Parker, 94 F.3d at 460. Again, because I found above that King was not

- 26 -

prejudiced by this decision, I conclude that the Missouri Court of Appeals’s
decision was not contrary to or an unreasonable application of federal law.
Therefore, I conclude that the claim raised in Ground 4 of King’s petition is
without merit.
Ground 5: Exclusion of Evidence that Mark Smith Lied Under Oath in a Different
Trial
In Ground 5, King argues that the trial court erred in excluding evidence that
government witness Mark Smith lied under oath in a previous trial. He claims that
this restriction on his cross-examination of Mark Smith violated his rights under
the Confrontation Clause. At trial, King was able to elicit testimony from Smith
that he and Dennis McAlister had been co-defendants in a drug case, in which
Smith testified that all of the drugs belonged to him. The trial court did not allow
King to elicit further testimony that Smith later told his parole officer that some of
the drugs belonged to Dennis McAlister. King sought to introduce that
information as evidence of Smith’s bias in favor of the victim in this case. King
raised this claim in his direct appeal, but the Missouri Court of Appeals rejected it
and stated:
Here, the trial court limited the evidence of bias by allowing the
defendants to elicit that Smith previously testified on Dennis
McAlister’s behalf, but not that Smith may have lied under oath. Even
assuming, without deciding, that the trial court abused its discretion,
we find that any such error was harmless beyond a reasonable doubt. .
..
- 27 -

The State’s purpose in calling Smith was to strengthen the
connection between the defendants and Dennis McAlister. Smith’s
testimony linked [King] and Jackson to Dennis McAlister at various
times prior to the commission of the crimes charged. Smith’s
testimony, however, was not essential to [King’s] conviction.
[King] was identified at the scene of the crimes by Adrian
McAlister and Kenyon Jackson. Enoch Bolden testified that he knew
[King] as “Twan,” that [King] participated in planning to rob Dennis
McAlister, and that [King] participated in dividing the spoils after the
robbery. Moreover, a piece of paper was found in Dennis McAlister’s
apartment that had [King’s] address and the name “Twan R. King”
written on it. This evidence was sufficient to support [King’s]
conviction, notwithstanding the limitation on Smith’s crossexamination.
Resp. Ex. E, at 12-13.
King has not shown that the decision of the Missouri Court of Appeals was
contrary to or an unreasonable application of federal law. The exclusion of this
evidence did not rise to the level of a violation of King’s constitutional rights
under the Confrontation Clause. Regarding limits on cross-examination into a
potential bias of a witness specifically, the Supreme Court has stated:
[T]he exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right of crossexamination. . . . It does not follow, of course, that the Confrontation
Clause of the Sixth Amendment prevents a trial judge from imposing
any limits on defense counsel’s inquiry into the potential bias of a
prosecution witness. On the contrary, trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination . . . .
Delaware v. Van Arsdall, 475 U.S. 673, 679-680 (1986). The Court in Van
Arsdall further held that even where there is constitutional error in regard to the

- 28 -

Confrontation Clause, “an otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt.” Id. at 681. Factors to consider
when deciding whether such an error is harmless include the “importance of the
witness’ testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the
testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution’s case.”
Id. at 684.
I conclude that the limit on this testimony did not violate King’s rights under
the Confrontation Clause. The trial court did not limit all questioning into Mark
Smith’s prior testimony. It allowed King’s counsel to elicit the fact that Mark
Smith had previously testified on behalf of Dennis McAlister, which is sufficient
to show any bias Mark Smith may have had when testifying at King’s trial. Any
additional questioning into the fact that he was lying when he testified on behalf of
Dennis McAlister would have been of marginal value, as it would not have cast
any additional doubt on the reliability of Mark Smith’s testimony beyond that
raised by any alleged bias. Thus, the trial court did not violate King’s rights under
the Confrontation Clause by excluding this marginally relevant evidence.

- 29 -

Furthermore, even if the trial court erred in excluding this evidence, I
conclude that it would constitute harmless error beyond a reasonable doubt. The
testimony of Mark Smith played a relatively minor role in the prosecution’s case,
given the strong evidence against King from multiple eyewitnesses and physical
evidence found at the scene. The prosecution’s case did not rely on Smith’s
evidence regarding prior interactions between Dennis McAlister and the victims in
order to prove King’s guilt as to these murders. Any additional evidence of
Smith’s bias elicited from the proposed cross-examination would not have affected
the outcome of the trial. Therefore, I conclude that the state appellate court’s
determination that the restriction on King’s cross-examination of Mark Smith was
harmless – if erroneous at all – was not contrary to or an unreasonable application
of federal law, and Ground 5 of King’s petition is without merit.
Ground 6: Insufficiency of the Evidence for First-Degree Murder
In Ground 6, King claims that there was insufficient evidence to support the
two counts of first-degree murder for which he was convicted because there was
no evidence of deliberation. This ground was raised on direct appeal and rejected
by the Missouri Court of Appeals. The due process clause prohibits the conviction
of an accused “except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In re Winship, 397
U.S. 358, 364 (1970). In the § 2254 setting, the petitioner “is entitled to habeas

- 30 -

corpus relief if it is found that upon the record evidence adduced at the trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 324 (1979). “All conflicting inferences that
arise from the historical facts must be resolved in favor of the prosecution.”
Nance v. Norris, 392 F.3d 284, 290 (8th Cir. 2004).
Here, King was charged with first-degree murder, among other charges. As
cited by the Missouri Court of Appeals, “to convict a defendant of first-degree
murder on a theory of accomplice liability, the State must prove that the defendant
personally deliberated upon the murder. [State v.] Rousan, 961 S.W.2d [831], 841
[(Mo. Ct. App. 1998)].” Section 565.002(3) of the Missouri Revised Statutes
provides that “[d]eliberation means cool reflection for any length of time no matter
how brief.” There are three circumstances under which deliberation may be
inferred for an accomplice liability theory of first-degree murder:
[F]irst, the defendant or a co-defendant in the defendant’s presence
made a statement or exhibited conduct indicating an intent to kill prior
to the murder; second, the defendant knew that a deadly weapon was
to be used in the commission of a crime and that weapon was later
used to kill the victim; and third, the defendant participated in the
killing or continued with a criminal enterprise after it was apparent that
a victim was to be killed.
Rousan, 961 S.W.2d at 841.

- 31 -

The Missouri Court of Appeals summarized the evidence presented at trial
and held that deliberation may be inferred in this case under all three of the above
circumstances, as follows:
After planning to rob the McAlisters, [King], Cleveland
Jackson, and Christopher Ford armed themselves with guns and burst
through the McAlisters’ door. At gunpoint, they ordered Dennis
McAlister to get on the living room floor, then dragged Tracy
McAlister from her bed to the living room floor as she kicked her feet
in desperation. While on the floor, Tracy pulled a blanket off the
couch and used it to cover herself and Adrian. Then, despite the
McAlisters’ submissiveness and Dennis McAlister’s numerous pleas
not to harm his pregnant wife or daughter, the men proceeded to shoot
them multiple times. After the shootings, the men then continued the
criminal enterprise by fleeing the scene and returning to Cleveland
Jackson’s basement where they changed clothes and divided up the
cash and jewelry taken from the McAlisters’ residence. They made no
effort to check on the victims or procure aid for them. On these facts,
there is sufficient evidence from which a reasonable juror could have
found beyond a reasonable doubt that [King] participated in and
deliberated on the deaths of Dennis and Tracy McAlister.
Resp. Ex. E, at 14-15.
Petitioner has not shown that the decision of the Missouri Court of Appeals
was contrary to federal law or resulted from an unreasonable determination of the
facts. The evidence presented at trial through numerous witnesses and physical
evidence was consistent with the findings of the jury. Though King presented an
alibi witness on his behalf, the jury made a credibility determination and found
beyond a reasonable doubt that King was present and participated in these
murders. The testimonial evidence also supported a finding that King deliberated

- 32 -

on this offense. On this record, I cannot conclude that no rational trier of fact
could have found proof beyond a reasonable doubt that King participated in and
deliberated on the deaths of Dennis and Tracy McAlister. Therefore, his claim
that there was insufficient evidence to support his murder convictions fails.
Ground 7: Ineffective Assistance of Trial Counsel for Failure to Call Quentin
Womack as an Alibi Witness
In Ground 7, King alleges that he received ineffective assistance of counsel
because his trial counsel failed to call Quentin Womack as an additional alibi
witness.4 The Supreme Court set out the standard for ineffective assistance of
counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). According to
Strickland, a petitioner alleging ineffective assistance of counsel must make two
showings. Id. at 687. First, the petitioner must “show that counsel’s performance
was deficient” in that it “fell below an objective standard of reasonableness.” Id.
at 687-88. In this regard, petitioner must overcome a “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional

4

King’s trial counsel called Wendy Womack, King’s fiancee, as an alibi witness, but did
not call her brother Quentin Womack as an additional alibi witness. Wendy Womack testified
that she had been with King, Quentin Womack, and Quentin Womack’s girlfriend at Raging
Rivers on the evening of August 4, 1997. After leaving the water park and driving home
through traffic, they arrived at Wendy’s parents’ house to pick up their daughter and a few other
items. She testified that they then got ready for bed at their apartment and went to sleep a little
after midnight, and King slept there the whole night.
- 33 -

assistance.” Id. at 689. The Court in Strickland cautioned that “judicial scrutiny
of counsel’s performance must be highly deferential.” Id.
In addition to showing that counsel’s assistance was deficient, a petitioner
must also demonstrate that he or she was actually prejudiced. Id. at 687.
According to Strickland, “[t]his requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial . . . .” Id. In order to satisfy the
“actual prejudice” standard, a petitioner must show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
King raised the same claim in his post-conviction motion and on appeal after
its denial. Applying the Strickland standard in this case, the Missouri Court of
Appeals concluded that King’s trial counsel was not ineffective for failing to call
Quentin Womack to testify. Specifically, the appellate court stated:
The motion court concluded that Womack could not have provided an
alibi for [King] at the time the murders occurred; we agree with that
conclusion. The State’s evidence established that the crimes for which
[King] was convicted occurred just after midnight on August 5, 1997.
However, during the evidentiary hearing on [King’s] PCR Motion,
[King] and Womack both testified that [King] was present at
Womack’s parents’ home until around 10:30 p.m. on August 4, 1997.
Womack did not testify that he knew where [King] was after [King]
left Womack’s parents’ home. Consequently, because Womack’s
potential trial testimony could not have provided [King] with an alibi
but, at best, would merely have been cumulative to Womack’s sister’s
testimony regarding the trip to the water park and the time [King] left
Womack’s parents’ home, Trial Counsel was not ineffective for failing

- 34 -

to call Womack at trial, and the trial court did not err in denying this
claim.
Resp. Ex. J, at 9.
The decision of the Missouri appellate court with regard to this claim is not
contrary to or an unreasonable application of federal law. “The decision not to
call a witness is a ‘virtually unchallengeable’ decision of trial strategy . . . .”
United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (citations omitted).
Counsel’s strategy at trial was not contrary to what other reasonable attorneys may
have decided to pursue. Though there were alternative strategies available to King
and his counsel at the time of trial, his counsel’s choice of strategy must be given
great deference, even if King now believes that a different strategy may have been
more beneficial.
King has not produced any evidence to show that the outcome of his trial
would have been any different had Quentin Womack been called to testify, given
Womack’s inability to provide him with an alibi for the time of the murders, and
given the fact that any benefit to King’s alibi defense that may have been gained
through this testimony would have been cumulative to evidence already elicited
from another witness. Because King has failed to demonstrate that trial counsel’s
performance was deficient and that he was prejudiced as a result of such
performance, Ground 7 is without merit.

- 35 -

Ground 8: 5 Ineffective Assistance of Trial Counsel for Failure to Object to
Testimony that Kenyon Jackson and Enoch Bolden Feared the Defendants
In Ground 8, King alleges that he received ineffective assistance of counsel
because his trial counsel failed to object to Kenyon Jackson’s testimony that he
feared for his life after cooperating with authorities and to Enoch Bolden’s
testimony that he entered the witness protection program because he feared
retaliation from these defendants. King argues that this testimony constituted
prejudicial evidence regarding his propensity to commit other crimes.
King raised the same claim on appeal from the denial of his post-conviction
motion. Applying the Strickland standard, the Missouri Court of Appeals
concluded that King’s trial counsel was not ineffective for failing to object to this
testimony. Specifically, the appellate court concluded:
[T]he motion court concluded that Trial Counsel’s failure to object to
Kenyon Jackson’s statements did not affect the outcome of [King’s]
trial given that the statements were not specific to [King] and “given
the brutal nature of the murders, fear of the perpetrators would be a
normal reaction.” We agree with the motion court’s conclusion. . . .
Furthermore, ample other evidence linked [King] to the crimes:
Kenyon Jackson had seen [King] with Cleveland Jackson and Ford
entering the victims’ apartment building immediately prior to and
immediately after the shooting; [Adrian McAlister], who was an
eyewitness to the murders, identified [King] as one of the participants;

5

This ground was originally labeled as Ground 9 in King’s first amended petition.
However, because he removed the claim originally labeled as Ground 8 when he filed his
second amended petition, I will now consider this claim as Ground 8. Similarly, the remaining
claims in this Order are also discussed using this change in numbering based on King’s removal
of Ground 8 from his original petition.
- 36 -

Bolden identified [King] as one of the men who returned to Cleveland
Jackson’s home and divided cash and jewelry; a piece of paper was
found in the victims’ apartment on which was written a form of
[King’s] name and his address. Consequently, in light of all this
evidence, we cannot say that Kenyon Jackson’s testimony regarding
his reason for moving out of his apartment altered the outcome at trial.
Second, Bolden had agreed to testify for the State in exchange
for placement in a witness protection program. [King’s] co-defendant’s
attorneys cross-examined Bolden about the agreement under which he
was testifying. On redirect, the State asked Bolden why he had
requested witness protection. Bolden replied that he feared retaliation
from [King], Cleveland Jackson, and Ford. Trial Counsel did not
object to this testimony. On direct appeal, this Court found that the
defense had opened the door to Bolden’s testimony by cross examining
him about his agreement with the State and that the State was entitled
to explain or to counteract a negative inference raised by the cross
examination; thus, this Court held, an objection to Bolden’s redirect
testimony regarding his reason for requesting witness protection would
have been overruled. Consequently, in this related proceeding for
post-conviction relief, Trial Counsel will not be deemed ineffective for
failing to make a non-meritorious objection. See Smith v. State, 324
S.W.3d 497, 500 (Mo. Ct. App. 2010).
Resp. Ex. J, at 10-11.
The conclusion of the Missouri Court of Appeals that King did not receive
ineffective assistance of counsel based on the failure to object to this testimony is
not contrary to or an unreasonable application of federal law. As to Kenyon
Jackson, even assuming arguendo that the failure to object to this testimony
constituted deficient performance, his trial counsel’s failure to object does not rise
to the level of ineffective assistance under the second prong of Strickland. The
evidence presented to the jury concerning King’s involvement in the murders was
strong, and as the motion court stated, fear of the perpetrators of these actions
- 37 -

would be a normal response. There is no reasonable probability that the verdict
would have been different if his trial counsel had objected.
As to the testimony regarding Enoch Bolden, the state court concluded that
the objection would not have had any merit because the testimony was admissible,
given that defense counsel had opened the door by asking about Bolden’s
agreement with the government. King’s claim essentially challenges an
evidentiary ruling by the state court. As discussed above, state evidentiary rulings
may only warrant habeas relief if the ruling deprived the petitioner of due process.
See Parker, 94 F.3d at 460.
As with the testimony from Kenyon Jackson, King’s evidentiary challenge
does not implicate a federal constitutional right as he has not established that the
outcome of his trial would have been different had his counsel objected to this
testimony. Even assuming arguendo that the evidentiary ruling was erroneous, the
weight of the evidence against King and the natural response of Bolden to fear
retaliation from these defendants after observing their actions about which he
testified, this statement did not alter the outcome of his trial. Accordingly, Ground
8 of King’s petition is without merit.
Ground 9: Ineffective Assistance of Trial Counsel for Failure to Use the Correct
Exhibit to Impeach Adrian McAlister’s Identification of King

- 38 -

Ground 9 of King’s petition is closely related to Ground 4 above, which is a
claim that the trial court erred in precluding evidence of Adrian McAlister’s
misidentification of King in a lineup. In Ground 9, King argues that he received
ineffective assistance of trial counsel for failure to impeach Adrian McAlister’s
identification of King through evidence of a prior misidentification at the
suppression hearing. King presented this claim in post-conviction motion, and his
trial counsel testified at the evidentiary hearing that it was not a strategic decision
to use State’s Exhibit 3 rather than Plaintiff’s Exhibit 3. She testified that it
caused some confusion, and she “should have used the same photo that the state
was using. That would have made it certainly much more clear.” Resp. Ex. F, at
57-58. King advanced this claim on his appeal from the denial of his postconviction motion. The Missouri Court of Appeals held that King’s trial counsel
was not ineffective under Strickland and rejected the claim as follows:
At the hearing on [King’s] PCR Motion, Trial Counsel testified
that Plaintiff’s Exhibit 3 was exactly the same as the State’s Exhibit 3
and that using two exact copies of the same photograph and using the
term “Plaintiff’s Exhibit” caused some confusion. Trial Counsel also
testified that she had tried to impeach [Adrian McAlister] at trial by
questioning [Adrian McAlister’s] conflicting previous identifications
of [King] in the State’s Exhibit 3 and of the man standing in the fifth
position in Plaintiff’s Exhibit 3. When [Adrian McAlister] responded
that she did not remember identifying anyone other than [King], Trial
Counsel tried to refresh [Adrian McAlister’s] recollection by showing
[Adrian McAlister] the State’s Exhibit 3, which was an exact copy of
Plaintiff’s Exhibit 3. [Adrian McAlister] repeated that she did not
remember identifying anyone other than [King].

- 39 -

Based on the record before us, [King] has failed to establish that
the outcome of trial would have been different had Trial Counsel used
Plaintiff’s Exhibit 3 instead of the State’s Exhibit 3 in attempting to
impeach [Adrian McAlister’s] identification of [King]. Significantly,
Trial Counsel testified that the State’s Exhibit 3 was an exact copy of
Plaintiff’s Exhibit 3. Trial Counsel also testified that Plaintiff’s
Exhibit 3 was actually a defense exhibit. Furthermore, as the State
notes in its responsive brief, impeaching [Adrian McAlister] by
showing her Plaintiff’s Exhibit 3 would have done nothing to alter the
outcome of trial given the ample other evidence pointing to [King’s]
guilt. Kenyon Jackson, a resident in the victims’ apartment building
who had observed [King], Jackson, and Ford entering the apartment
building just before the shooting and then fleeing shortly after the
shooting, identified [King]. Bolden, Cleveland Jackson’s cousin,
identified [King] as one of the three men who returned to Jackson’s
home after the shooting and divided cash and jewelry taken from the
victims. A piece of paper was found in the victims’ apartment which
contained [King’s] name and his address.
Consequently, because there is no reasonable probability that the
outcome of [King’s] trial would have been different had Trial Counsel
shown [Adrian McAlister] Plaintiff’s Exhibit 3, the trial court did not
err in denying this claim.
Resp. Ex. J, at 6-7.
The conclusion of the Missouri Court of Appeals that King did not receive
ineffective assistance of counsel based on the failure to use Plaintiff’s Exhibit 3 to
impeach Adrian McAlister’s identification of King was not contrary to or an
unreasonable application of federal law. Even if trial counsel erred in failing to
use Plaintiff’s Exhibit 3 to refresh Adrian McAlister’s recollection of her prior
misidentification of King, petitioner has not demonstrated under the second prong
of Strickland that the outcome of his trial would have been different had counsel
done so. Adrian McAlister did not remember identifying the fifth man in the
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lineup when King’s trial counsel showed her State’s Exhibit 3, which was an exact
copy of Plaintiff’s Exhibit 3. There is no reason to believe that she would have
conceded her prior misidentification had she been shown a copy of the exact same
photograph, simply labeled with a different exhibit number. Furthermore, even if
King’s trial counsel had laid the proper foundation to impeach Adrian McAlister’s
identification through the testimony of the court reporter from the suppression
hearing, there was ample evidence supporting King’s guilt on these charges, as
discussed in Ground 4 above. There is not a reasonable probability that the jury
verdict would have been different but for trial counsel’s failure to use Plaintiff’s
Exhibit 3. Therefore, this claim of ineffective assistance of counsel is without
merit.
Ground 10: Recusal of Appellate Panel for Conflict of Interest
In Ground 10, King argues that he was denied the right to a conflict-free and
meaningful review on appeal because Judge Gary Gaertner – who was the
Assistant United States Attorney involved in the federal charges against Enoch
Bolden – sat on the panel for his post-conviction appeal. He also argues that
Judges Patricia Cohen and Mary Kay Hoff could not be impartial because they sat
on the same panel as Judge Gaertner. By the time that King filed his second
amended petition, the Missouri Court of Appeals had already granted his motion
to recall the mandate. The court withdrew its previous opinion and resubmitted

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the case to a new panel without Judge Gaertner, but including the same two judges
that previously heard the case: Judge Cohen and Judge Hoff. As to Judge
Gaertner’s conflict of interest, I conclude that King has already received relief on
this claim, as his claim has been resubmitted and evaluated by a panel that did not
include Judge Gaertner. Therefore, I do not find any basis for habeas relief on this
claim.
As to the alleged bias of the other panel members, Judge Cohen and Judge
Hoff, King does not provide any basis for claiming that they should have recused
themselves from the second panel. To the extent that this challenges a state
court’s decision on state procedural rules for conflicts of interest, it is not
cognizable on habeas review. See Smith v. Lockhart, 882 F.2d 331, 334 (8th Cir.
1989) (holding that the petitioner did not allege a valid due process violation for
an “alleged violation of a state rule concerning post-conviction proceedings, an
area in which a defendant is not necessarily afforded constitutional protections”).
Therefore, I conclude that this claim is not a valid subject for habeas review, and I
will not consider it.
V.

Pending Motions
King has also filed a motion for the appointment of counsel and a motion

requesting the court consider a certain trial exhibit as an exhibit to his petition. He

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also filed a motion to amend or correct his first amended petition. He is not
entitled to appointment of counsel, and his additional motions are without merit.
There is no constitutional or statutory right to appointed counsel in a civil
case. Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir.
1984). In determining whether to appoint counsel, the Court considers several
factors including (1) whether the plaintiff has presented non-frivolous allegations
supporting his prayer for relief; (2) whether the plaintiff will substantially benefit
from the appointment of counsel; (3) whether there is a need to further investigate
and present the facts related to the plaintiff’s allegations; and (4) whether the
factual and legal issues presented by the action are complex. See Battle v.
Armontrout, 902 F.2d 701, 702 (8th Cir. 1990); In re Lane, 801 F.2d 1040, 104344 (8th Cir. 1986); Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986);
Nelson, 728 F.2d at 1005.
Upon consideration of the above-listed factors, I find that appointment of
counsel is not warranted in this case. The claims and underlying facts of this case
are relatively straightforward and do not involve any complex legal issues.
Moreover, based on petitioner’s presentation of the issues in his petition, he seems
quite capable of litigating this action on his own. Therefore, his motion for
appointment of counsel will be denied.

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Petitioner also requests that I accept trial exhibit 97, which is a letter written
from Enoch Bolden to the prosecution, as petitioner’s Exhibit G to his petition. I
do not need to consider each individual exhibit presented at trial in order to
understand the legal issues presented in King’s petition. To the extent that this
motion requests that I order the state of Missouri to produce that particular piece
of evidence, I do not believe such action is necessary. Therefore, I will deny the
motion.
King also filed a motion to amend or correct his first amended petition.
After that filing, King did file a second amended petition. Therefore, I will deny
his motion to file a second amended petition as moot, as I have already considered
the claims raised in his second amended petition.
VI.

Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals

from the final order in a 28 U.S.C. § 2254 proceeding unless a circuit justice or
judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant
such a certificate, the justice or judge must find a substantial showing of the denial
of a federal constitutional right. Id. § 2253(c)(2); see Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.

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1997). I find that reasonable jurists could not differ on any of King’s claims, so I
will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petitions of Antoine King for writ of
habeas corpus [#1, 14, 22] pursuant to 28 U.S.C. § 2254 are DENIED.
IT IS FURTHER ORDERED that the petitioner’s motion to amend his
petition by deleting Ground 8 [#25] is GRANTED.
IT IS FURTHER ORDERED that the petitioner’s motion to appoint
counsel [#23] is DENIED.
IT IS FURTHER ORDERED that the petitioner’s motion related to a
particular trial exhibit [#16] is DENIED.
IT IS FURTHER ORDERED that petitioner’s motion to amend or correct
his petition [#21] is DENIED AS MOOT.
IT IS FURTHER ORDERED that the petitioner has not made a substantial
showing of a denial of a constitutional right and this Court will not grant a
Certificate of Appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.
___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 12th day of March, 2013.
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