Dunn v. Wallace

Filing 23

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Ramell Dunn=s Petition under 28 U.S.C. ' 2254 for Writ of Habeas Corpus by a Person in State Custody, (ECF No. 1 ), is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Dunn 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). Signed by District Judge Jean C. Hamilton on 1/26/15. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAMELL DUNN,
Petitioner,
v.
IAN WALLACE,
Respondent.

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Case No. 4:12cv0766

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Ramell Dunn’s Petition for Writ of Habeas
Corpus, which Dunn filed on April 27, 2012 pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1).
The Petition has been fully briefed and is ready for disposition.
BACKGROUND
On February 15, 2008, Dunn was convicted by a St. Louis, Missouri jury on two counts:
(I) murder in the first degree and (II) armed criminal action (“ACA”). For the first-degree murder
count, Dunn received a sentence of life without parole. For the ACA count, he received a
sentence of thirty years. The sentences run consecutively.
The State’s position throughout Dunn’s trial was that the murder for which Dunn was
ultimately convicted occurred in St. Louis at 5:12 p.m. on May 15, 2005. (State PCR Order,
Resp. Exh. C, App. A at 2; PCR Appellate Order, Resp. Exh. E, at 2). “It was established very
early on in this case, that [Dunn] was going to rely upon the defense of alibi.” (State PCR Order
at 1). The alibi Dunn intended to rely on was that at the time of the murder he was at his
grandmother’s barbecue, which was several hundred yards from the scene, and therefore could
not have been the perpetrator. Id. at 2; (PCR Appellate Order at 2). Dunn’s attorney endorsed

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several witnesses who were willing to testify to this. (State PCR Order at 1-2). At trial, the first
witness Dunn’s attorney called was Delisa Hinton, the mother of Dunn’s child, who Dunn’s
attorney believed to be his best witness. (PCR Appellate Order at 2, 4). After perceiving
inconsistencies in Hinton’s testimony, Dunn’s attorney decided not to call any further alibi
witnesses. (State PCR Order at 2).
In the state post-conviction proceeding that Dunn filed pursuant to Missouri Supreme
Court Rule 29.15, Dunn made several claims. One was a claim for ineffective assistance of
counsel based on his trial counsel’s failure to call the remaining alibi witnesses. Id. 3. The state
post-conviction court found that Dunn had abandoned all claims other than his ineffective
assistance claim by failing to argue them. Id. at 3-4. It then denied Dunn’s ineffective assistance
claim on the merits. Id. at 10-11.
Dunn appealed the state post-conviction court’s order. In addition to challenging the postconviction court’s ruling on his ineffective assistance claim, Dunn argued for the first time on
appeal that his post-conviction counsel erred by abandoning him. (PCR Appellate Order, Resp.
Exh. E, at 3). The state post-conviction appeals court found both that Dunn had not followed the
correct procedure in bringing his abandonment claim and that the state post-conviction court did
not err in denying relief on his ineffective assistance claim. Id. at 4-5.
Dunn raises four claims in this Petition: (I) that he was denied due process when the state
post-conviction court failed to find that Dunn’s post-conviction counsel had abandoned him; (II)
that he was denied due process when his “Post-Conviction Counsel failed to fulfill his
obligations under Rule 29.15 (e)[;]” (III) that he was denied due process when the state postconviction court “failed to grant relief on his claim that Trial Counsel was ineffective for failing
to call more than ten Alibi Defense witness [sic] at his trial[;]” and (IV) that his trial counsel was

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ineffective in failing to call the additional alibi witnesses. (Petition, ECF No. 1, at 16, 21, 22-23,
27).
DISCUSSION
I. Grounds I and II
Dunn’s first two proposed grounds for relief are essentially indistinguishable. In both,
Dunn contends that his post-conviction counsel committed constitutional error by abandoning
him during the state post-conviction proceedings. (Petition at 16, 21). As noted above, this claim
was raised for the first time on Dunn’s appeal of the state post-conviction court’s ruling. The
post-conviction appeals court found:
The motion court retains jurisdiction over its final judgment on a Rule 29.15
motion for thirty days. Rule 75.01; Edgington v. State, 189 S.W.3d 703, 706
(Mo. App. W.D. 2006). The only exception to this limitation allows the
court to reopen a post-conviction proceeding to address a claim of
abandonment by post-conviction counsel. Grays v. State, 275 S.W.3d 392,
393 (Mo. App. E.D. 2009). Abandonment is limited to instances in which
post-conviction counsel: (1) failed to file an amended petition on movant’s
behalf without explanation, (2) filed an untimely amended motion, or (3)
filed a motion so patently defective that it amounted to a nullity. Id.
The proper method for raising a claim of abandonment would have
been to first bring a motion to reopen the PCR proceedings in the trial court.
Dunn instead raises this issue for the first time on appeal. Claims which
should have been presented to the motion court cannot be raised for the first
time on appeal. Stokes v. State, 671 S.W.2d 822, 824 (Mo. App. E.D. 1984).
As Dunn’s first claim is procedurally barred, we decline to reach the merits.
(PCR Appellate Order at 4).
Based on principles of comity, federal courts reviewing habeas petitions based on state
court convictions do not review claims “decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal question and adequate to support the
judgment.” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). “This rule applies whether the
state law ground is substantive or procedural.” Id. Thus, if a habeas petitioner failed to obtain
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relief in state court because he did not comply with a state procedural rule, that failure bars
habeas review of his claim. The claimant can avoid this bar only if he demonstrates “cause and
prejudice or a miscarriage of justice.” Morgan v. Javois, 744 F.3d 535, 538 (8th Cir. 2013).
Dunn argued before the state post-conviction appeals court that he was entitled to relief
because his motion counsel abandoned him. The court, as detailed above, found that Dunn failed
to raise this claim in the proper manner and declined to review it specifically for that reason.
Dunn has not attempted to demonstrate cause for failing to comply with state court procedures or
that a miscarriage of justice will occur if the Court does not review his first two claims. These
claims are therefore procedurally barred, and the Court will not review them on the merits.
II. Grounds III and IV
Like grounds I and II, Dunn’s third and fourth grounds are indistinguishable for purposes
of this Petition. Dunn’s contention is that he should be granted habeas relief because his trial
counsel was ineffective in failing to call a number of alibi witnesses who were available to
testify. (Petition at 23, 27). This claim was properly presented in state court and will therefore be
decided on the merits. In ruling on Dunn’s ineffective assistance claim, the post-conviction
appeals court found:
In this second claim, Dunn essentially argues defense counsel was
deficient by calling only one alibi witness, Delisa Hinton, when he had
endorsed fourteen. Testimony given at the PCR evidentiary hearing
revealed counsel’s motivations. Defense counsel stated at the hearing that
he made the decision to put Hinton on the stand first, even though other
endorsed witnesses were present at the trial, because she sounded the most
intelligent and presentable. However, when she took the stand, her
testimony conflicted with that of the remaining witnesses, including Dunn’s
sisters, by removing them from the scene of the barbeque where they
supposedly saw Dunn when the shooting occurred several hundred yards
away. Therefore, in order not to further damage the case by introducing
conflicting testimony, defense counsel made the strategic decision not to
call the remaining witnesses. This is clearly the type of decision that falls
within the range of reasonable trial strategy contemplated in Strickland, and
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under the deferential standard, Dunn is unable to establish the deficient
performance prong of the analysis. As such, there is no need address to
address [sic] the prejudice prong. Accordingly, motion court did not err in
denying Dunn’s claim of ineffective assistance of counsel.
(PCR Appellate Order at 4-5).
Federal court review of habeas corpus petitions filed based on state court convictions is
governed by 28 U.S.C. § 2254. Under that statute:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim B
(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). The two most common theories for habeas relief are established in
subsection (d)(1). Under the “contrary to” theory, a district court must conclude “that the state
court arrived at a conclusion opposite to that reached by the Supreme Court on a question of
law.” Yang v. Roy, 743 F.3d 622, 625-26 (8th Cir. 2014). Under the “unreasonable application”
theory, a district court must conclude that although the state court has identified the correct legal
principles, the state court’s application of those principles is objectively unreasonable. Id.
To prevail on an ineffective assistance of counsel claim, a claimant must show that his
attorney’s performance was “deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate counsel’s
deficiency, the claimant must prove that, “in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.” Id. at 690. To

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demonstrate prejudice, the claimant must show “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the
context of a § 2254 petition, the petitioner must show that the state court’s determination was
contrary to or based on an unreasonable of application of Strickland.
Dunn’s attorney explained his decision not to call more than one alibi witness during the
evidentiary hearing held in relation to Dunn’s Rule 29.15 motion. He testified on direct
examination as follows:
Q. And without trying to go word for word, in your analysis as a trial
attorney, what happened when [Delisa Hinton] testified?
A. Well, we tried to establish the time of the alibi and the place in
which the alibi would have been effective. She took essentially everybody
who we had endorsed or the number of people I recall and removed them
from the place where they should have been at the time they should have
been and moved everyone down the street and had them all together at a
different time.
Q. And that created a problem for you?
A. Yes. It pretty much negated the alibi defense with our very first,
quote, best witness.
Q. And did you make a decision at that time whether or not to call any
of the other potential alibi witnesses?
A. Yes. I decided not to, because the next person I would have called
would have said, no, what that person just said wasn’t true. Now I’m doing
the prosecutor’s job for them.
(PCR Hearing Transcript at 28-29).
On cross-examination, it was revealed that Dunn’s attorney had mischaracterized
Hinton’s testimony in his direct examination. Hinton had actually testified that she walked away
from the barbecue with some of her friends before the shooting. Id. at 34-35, 37-38. She did not
testify that all of the endorsed alibi witnesses walked with her, as Dunn’s attorney testified on
direct examination. Id. at 38. Hinton did, however, include both of Dunn’s sisters in the group of
people with whom she went for a walk. Id. at 37. To Dunn’s attorney, this meant Hinton had
“taken the other two best witnesses . . . , which were [Dunn’s] two sisters, and said that they also
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were walking with her at a time when there was a shooting, and that [Dunn] could not have been
with them, because they weren’t where he was supposed to be.” Id. at 37-38.
Regardless of the exact details of Hinton’s testimony, Dunn’s attorney believed he was
facing a situation in which most of his alibi witnesses would have had to contradict the word of
his first and best witness. He therefore made a strategic decision not to call any more alibi
witnesses because he believed doing so would only harm Dunn’s case. The state court
determined that Dunn’s attacks on that decision could not overcome the “‘strong presumption
that his counsel’s actions constituted reasonable trial strategy.’” Fretwell v. Norris, 133 F.3d 621,
627 (8th Cir. 1998) (quoting Snell v. Lockhart, 14 F.3d 1289, 1301 (8th Cir. 1994)); (see PCR
Appellate Order at 4-5). That determination was not contrary to or an unreasonable application
of Strickland and its progeny. Dunn’s third and fourth claims therefore provide no basis for relief
under § 2254.1
Accordingly,
IT IS HEREBY ORDERED that Ramell Dunn=s Petition under 28 U.S.C. ' 2254 for
Writ of Habeas Corpus by a Person in State Custody, (ECF No. 1), is DENIED, and his claims
are DISMISSED with prejudice.

A separate Order of Dismissal will accompany this

Memorandum and Order.

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Dunn also suggests that his trial attorney conducted an unreasonably limited investigation. Specifically,
he claims that three additional alibi witnesses were available and that his trial attorney did not interview
or contact any of them. (Petition at 29-31). This argument does not appear squarely to have been raised in
state court. But even if it is properly before the Court, the argument has no merit. Witness investigations
need not be unlimited. Strickland, 466 U.S. at 690-91 (“strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation”). Dunn’s trial attorney had already endorsed numerous alibi witnesses.
Adding three more to that list would have been cumulative. Moreover, the decision not to call more
witnesses was based on events at trial and likely would not have been different even had the three
additional witnesses been available to testify.

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IT IS FURTHER ORDERED that because Dunn 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).

Dated this 26th Day of January, 2015

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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