Irby v. Steele

Filing 22

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that petitioner's motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) [# 20 ] is DENIED. Signed by District Judge Catherine D. Perry on 07/21/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DENNIS IRBY,

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Petitioner,
vs.
TROY STEELE,
Respondent.

Case No. 4:12CV501 CDP

MEMORANDUM AND ORDER
This state habeas case is before the Court on petitioner Dennis Irby’s motion
to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure. The time for response has passed, and so the motion is ripe for ruling.
Because the court finds that it did not commit any manifest errors of law, and
because Irby points to no new evidence that would require an amended judgment,
the court will deny the motion.
I.

Procedural History

Irby was charged by indictment in St. Louis County with one count of firstdegree murder and one count of armed criminal action. The jury found him guilty
of both charges. Irby was sentenced to life imprisonment without the possibility of
parole for the first-degree murder conviction, and he was sentenced to life
imprisonment for the armed criminal action conviction. The Missouri Court of

Appeals affirmed. Irby’s motion for post-conviction relief was denied after an
evidentiary hearing, and the Missouri Court of Appeals affirmed the denial of postconviction relief.
On March 16, 2012, Irby filed his petition for writ of habeas corpus under 28
U.S.C. § 2254 with the Court, asserting nine grounds for relief. This court denied
the petition on November 12, 2013, concluding that some of the grounds were
procedurally defaulted and that the remaining claims were without merit.
Subsequently, Irby filed this motion to alter or amend the judgment.
II.

Legal Standard

Federal Rule of Civil Procedure 59(e) was adopted to clarify a district
court’s power to correct its own mistakes in the time immediately following entry
of judgment. Norman v. Ark. Dep’t of Educ., 79 F.3d 748, 750 (8th Cir. 1996)
(citing White v. N.H. Dep’t of Employ’t Sec., 455 U.S. 445 (1982)). Rule 59(e)
motions serve a limited function of correcting “manifest errors of law or fact or to
present newly discovered evidence.” Innovative Home Health Care, Inc. v. P.T.O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (internal
quotation and citations omitted). Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments that could have been
offered or raised prior to entry of judgment. Id.

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III.

Discussion

Irby argues that the court erroneously denied his claims that trial counsel
was ineffective for failing to investigate witnesses and secure evidence establishing
his alibi defense. Irby also contests the denial of his claims that trial counsel erred
for failing to seek a change of venue or new venire panel.
A.

Alibi Defense

Irby argues that the state court unreasonably determined the facts relative to
his claim that trial counsel was ineffective for failure to develop evidence
necessary to assert an alibi defense. Specifically, Irby contends that when ruling
on his post-conviction-relief appeal, the court erroneously determined that Irby had
not informed his trial counsel “who was the cashier working at JR Cigars.” This
finding, Irby argues, represents a manifest error of fact contrary to evidence
adduced during the evidentiary hearing, where “trial counsel conceded that he did
not investigate petitioner’s alibi defense even though he was aware that this
evidence existed.”
“[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
(8th Cir. 2003) (internal quotations and citations omitted).

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Contrary to Irby’s arguments, the Missouri Court of Appeals did not make
an unreasonable factual determination. Irby did testify at the post-conviction-relief
motion hearing that he had informed his trial counsel of the identity – “Tina W.” –
of the cashier who might provide an alibi, and that he and Tina W. knew each
other. However, his trial counsel testified that Irby had been unable to identify
anyone at JR Cigar who could corroborate Irby’s alibi. There is sufficient record
evidence to support the state court’s finding that Irby had not informed his counsel
of the identity of the cashier; as such, it was a reasonable determination of facts.
See Boyd v. Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001).
In finding the Missouri court had reasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), this court emphasized that neither the deficiency
prong nor the prejudice prong of Strickland had been satisfied. See id. at 687–88.
Thus, even if Irby could attribute error to the finding that his counsel’s
performance was not constitutionally deficient, Irby’s claim on this ground would
still fail for lack of prejudice.
B.

Venue and Venire Panel

Irby argues that the state court ignored the “highly inflammatory publicity”
that accompanied his case, and so the court made an unreasonable determination of
the facts when it considered his claims that his counsel was ineffective for failing
to seek a change of venue or strike the venire panel.

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This court already rejected Irby’s arguments that the high level of pretrial
publicity surrounding his case rendered his counsel ineffective for failing to seek a
new venue or venire panel. In making that decision, this court again stressed that
neither prong of Strickland was satisfied. Counsel made a rational decision not to
attempt moving the case out of the largest county in Missouri; the same rationality
applies to counsel’s decision not to seek a new venire panel. Either case could
have resulted in a jury less favorable to Irby. This court also noted that Irby failed
to establish prejudice from his counsel’s decision – either presumptive prejudice or
actual prejudice. The court finds no error in its previous analysis and conclusion.
The state court’s application of Strickland was reasonable, and trial counsel’s
conduct did not fall below that standard of reasonableness.
Petitioner has not established any manifest errors in the court’s previous
denial of his petition for writ of habeas corpus.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e) [# 20] is DENIED.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 21st day of July, 2014.
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