McFarland v. Wallace

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Report and Recommendation filed on January 15, 2015 18 is adopted and sustained in its entirety. IT IS FURTHER ORDERED that petitioner's objections to the Report and Recommendation 23 ar e overruled. IT IS FURTHER ORDERED that Petitioner's signed Petition for Writ of Habeas Corpus 4 is denied. IT IS FURTHER ORDERED that Petitioner's unsigned Petition for Writ of Habeas Corpus 1 is denied as moot. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date.. Signed by District Judge Rodney W. Sippel on 3/19/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DERRICK MCFARLAND,
Petitioner,
vs.
IAN WALLACE,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:12CV290 RWS

MEMORANDUM AND ORDER
This matter is before the Court on the petition for writ of habeas corpus
pursuant to 28 U.S.C. ' 2254 filed by Derrick McFarland. The Court referred this
matter to United States Magistrate Judge Thomas C. Mummert, III for a report and
recommendation on all dispositive matters pursuant to 28 U.S.C. ' 636(b). On
January 15, 2015, Judge Mummert filed his 48-page Report and Recommendation
that petitioner=s habeas petition should be denied. [Doc. #18]. Petitioner, through
counsel, objects to the Report and Recommendation. [Doc. #23]. Specifically,
petitioner objects to Judge Mummert’s determination that Grounds 2 and 3 of his
habeas petition should be denied as meritless.
I have conducted a de novo review of all matters relative to petitioner=s
objections. After careful consideration, I will adopt and sustain Judge Mummert=s
thorough Report and Recommendation in its entirety. I find that Judge Mummert

correctly decided that petitioner=s ineffective assistance of counsel claims were
meritless. As for Ground 2, Judge Mummert correctly set out the applicable law
regarding ineffective assistance of counsel claims arising out of trial counsel’s
failure to strike an allegedly biased juror and properly determined that the state
court’s factual determination regarding Huck’s bias was entitled to deference under
28 U.S.C. § 2254(e)(1). Moreover, the state court’s determination that trial
counsel’s decision to leave Huck on the jury was reasonable trial strategy is
properly entitled to deference, as Judge Mummert concluded. The record supports
the state court’s determination that Huck’s responses during voir dire were
ambiguous, that it was not clear that Huck was prejudiced against petitioner, and
that it was reasonable trial strategy to leave Huck on the jury panel. That petitioner
was later convicted does not render counsel’s decision unreasonable or otherwise
entitle petitioner to habeas relief. Like Judge Mummert, I am also not persuaded
by petitioner’s reliance on Hughes v. United States, 258 F.3d 453, 463 (6th Cir.
2001), and I find it inapplicable here for the same reasons discussed by Judge
Mummert in the Report and Recommendation. As there was no showing of either
the requisite deficient performance or resulting prejudice, Judge Mummert properly
recommended that petitioner’s ineffective assistance of counsel claim be denied.

2

I also find that Judge Mummert correctly decided that Ground 3 of
petitioner’s habeas petition should be denied. I agree with Judge Mummert that
petitioner cannot satisfy the prejudice prong of Strickland with respect to trial
counsel’s failure to object to the first-degree murder verdict director. As correctly
noted by Judge Mummert, the record amply supports the state court’s finding that
petitioner did not contest the element of deliberation, as highlighted in his closing
argument, because his theory of the case was that Henderson was lying about
petitioner’s involvement. Contrary to petitioner’s argument, trial counsel did not
testify during the Rule 29.15 hearing that a properly worded instruction would have
supported his defense. Instead, he actually testified that the jury instruction, even
if erroneous, would not have changed his defense strategy because the defense was
that Henderson was lying and “committed this murder without any instruction from
Mr. McFarland to do so.” [Doc. #8, Ex. F at 24-25]. Moreover, as Judge
Mummert also found, the evidence reveals that petitioner actually deliberated in that
he provided money and drugs to Henderson as payment for the shooting, provided
Henderson with the ammunition used in the shooting, and gave Henderson a ride to
and from the scene of the shooting. Under these circumstances, there is no
showing that the outcome would have been different even if petitioner’s trial
attorney had objected to the verdict director. This remains true even if the result of
3

this alleged error on petitioner’s direct appeal is considered, although I agree with
Judge Mummert’s procedural default analysis on this issue and adopt it here. As
there was no showing of requisite prejudice, Judge Mummert properly
recommended that petitioner’s ineffective assistance of counsel claim be denied.
For these reasons, I am overruling petitioner’s objections, adopting the Report and
Recommendation issued on January 15, 2015, and denying petitioner’s habeas
petition.
I have also considered whether to issue a certificate of appealability. To
grant a certificate of appealability, the Court must find a substantial showing of the
denial of a federal constitutional right. 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. 1997)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)). Because petitioner
has not made such a showing, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that the Report and Recommendation filed on
January 15, 2015 [#18] is adopted and sustained in its entirety.

4

IT IS FURTHER ORDERED that petitioner=s objections to the Report and
Recommendation [#23] are overruled.
IT IS FURTHER ORDERED that Petitioner=s signed Petition for Writ of
Habeas Corpus [#4] is denied.
IT IS FURTHER ORDERED that Petitioner’s unsigned Petition for Writ of
Habeas Corpus [#1] is denied as moot.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

__________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 19th day of March, 2015.

5