Matthews v. Bowersox

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no Certificate of Appeala bility shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order.. Signed by Magistrate Judge Shirley P. Mensah on 9/8/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRYL MATTHEWS,

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Petitioner,
vs.
TOM VILLMER, 1
Respondent.

No. 4:12-CV-901-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Darryl Matthews’
(“Petitioner’s”) pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c)(1). (Doc. 16). After reviewing the case, the Court has determined
that Petitioner is not entitled to relief, and the petition will be dismissed.
I.

FACTUAL BACKGROUND
On the evening of May 6, 2003, David Salvato was taking out the trash at his café when

he was confronted by an individual (later identified as Petitioner) who demanded Salvato’s
money and said he had a pistol in his belt. Resp’t Ex. A at 177-79. Salvato observed a silver
automatic pistol in the individual’s waist band. Id. at 180. Although Salvato initially refused, he
eventually gave the individual his money and cell phone. Id. at 180-81. The two men were two to
three feet apart during the entire ten minute encounter, the parking lot was “well lit,” and Salvato
stated that he was able to see the individual “very easily.” Id. at 179-82. Salvato testified that
1

Since the filing of his petition, Petitioner has been transferred to Farmington Correctional
Center, where Tom Villmer is the Warden. Tom Villmer will therefore be substituted as the
proper respondent. See Rule 2(a), Rules Governing Section 2254 Cases in the United States
District Courts.
1

during the encounter he was “trying to get a good ID on [the robber].” Id. at 180. After the
robber left, Salvato called 911, described the robber, and said he could identify the robber. Id. at
183-85. Officers came to the scene, and Salvato gave a more complete description. Id. at 185.
Upon obtaining Salvato’s description of the robber at the scene, officers went to the
University City Police Department with Salvato’s description, and they were given Petitioner’s
name as a possibility. Id. at 146-47. Officers then used a computer system to create a photo
spread containing Petitioner’s photograph along with photographs of five other individuals with
similar physical characteristics. Id. at 131-34; Resp’t Ex. B at 286-87.
On the following evening, May 7, 2003, Sherryl Washington had just exited her car when
she was approached by an individual (later identified as Petitioner) who came toward her with a
gun and told her to get down. Resp’t Ex. A at 206-09. Washington saw that he was holding a
silver hand gun. Id. at 210. Her robber stood over her and pointed his gun at her head, demanding
her money and credit cards. Id. at 211. The encounter lasted for approximately nine minutes,
during which time the robber stood right in front of Washington and faced her, and she “was
looking at him the whole time.” Id. at 212-13. After the robber fled, Washington called the police
and described the incident and the robber. Id. at 213-15.
When the police arrived to interview Washington that night, they brought along the photo
lineup that had been created based on Salvato’s description of his robber from the night before.
Id. at 132. Although the police had initially intended to show the photo lineup to Salvato, they
showed it to Washington instead after overhearing a broadcast of her robbery, which had
occurred near the first robbery and involved a similar suspect description. Id. at 132-33. The
police told Washington that her robber may or may not be in the lineup. Id. at 136. She
immediately selected Petitioner’s photo from the lineup and signed and dated her selection. Id. at

2

137. This identification occurred at around 11:00 p.m. which was within an hour of the initial
call to police about Washington’s robbery. Id. at 214, 219.
After Washington’s identification, the police located Petitioner near his known hangout
spot in a local parking lot and detained him. Resp’t Ex. B at 266-67, 270. The police then
brought Washington to that lot on the same night. Resp’t Ex. A at 159. She stayed in a police car
while police shined a light on Petitioner and asked her if she recognized him. Id. at 160. She said
yes, because she recognized his face and clothes and it was very clear he was the person who had
robbed her. Id. Washington was one hundred percent certain of her identification, and the police
did not tell her that they believed Petitioner to be the robber or that they wanted her to pick him.
Id. at 160-61. This identification took place a little over an hour after the robbery. Id. at 162.
By the next day, May 8, 2003, police had prepared another six-photo lineup to show to
Salvato. Id. at 138. Salvato was told before viewing the photo lineup that his robber might or
might not appear therein. Id. at 139. Salvato selected Petitioner’s photo and initialed and dated
his selection. Id. at 140. Salvato was one hundred percent certain of his selection and stated that
the police did not help him at all in identifying Petitioner. Id. at 202. The police at this point also
prepared a live lineup to show Salvato, composed of individuals from the police holdover with
physical characteristics similar to Petitioner’s. Id. at 141. When Salvato viewed this live lineup,
the police again advised him that his robber might or might not be present; Salvato selected
Petitioner from this live lineup as the person who had robbed him. Id. at 143. According to
Salvato’s testimony at trial, Petitioner did not stand out in any way from the other members of
either the photo lineup or the live lineup. Id. at 189-90.

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II.

PROCEDURAL BACKGROUND
On February 9, 2005, a jury found Petitioner guilty of two counts of first-degree robbery.

Resp’t Ex. B at 369-70. On April 29, 2005, a judge in the Circuit Court of St. Louis, Missouri
sentenced Petitioner to two 20-year sentences to run concurrently. Resp’t Ex. C at 84-86. The
Missouri Court of Appeals affirmed Petitioner’s conviction on June 6, 2006. Resp’t Ex. F. On
August 1, 2006, Petitioner filed a motion for post-conviction relief under Missouri Rule 29.15,
Resp’t Ex. G at 3, which was amended by counsel on April 3, 2007, id. at 17. Petitioner’s motion
for post-conviction relief was granted in part and denied in part without a hearing. 2 Resp’t Ex. G
at 74. On June 21, 2011, the Missouri Court of Appeals affirmed the decision of the motion
court. Resp’t Ex. J. On April 28, 2012, Petitioner filed the instant habeas corpus petition. (Doc.
1).
III.

LEGAL STANDARD
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

§ 2254, governs federal habeas petitions filed by state prisoners. Federal habeas review exists
only “as ‘a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.’” Woods v. Donald, 135 S. Ct. 1372,
1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).
Accordingly, “[i]n the habeas setting, a federal court is bound by AEDPA to exercise only
limited and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d
748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254). By limiting federal habeas review of state
court decisions, AEDPA aims “to prevent federal habeas retrials and to ensure state-court

2

The trial court partially granted Petitioner post-conviction relief by striking his “prior offender”
designation from the sentence and judgment, but denied Petitioner’s motion in all other respects.
Resp’t Ex. G at 74.
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convictions are given effect to the extent possible under the law.” Abernathy v. Hobbs, 748 F.3d
813, 816 (8th Cir. 2014) (citing Colvin v. Taylor, 324 F.3d 583, 586 (8th Cir. 2003)).
Under AEDPA, a federal court may not grant relief to a state prisoner unless the state
court’s adjudication of a claim “(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). A state court decision is “contrary to” clearly established Supreme Court
precedent “if the state court arrives at a conclusion opposite to that reached by [the United States
Supreme] Court on a question of law or if the state court decides a case differently than [the
United States Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000); see also Bell v. Cone, 535 U.S. 685, 694 (2002). A state
court decision involves an “unreasonable application” of clearly established federal law if it
“correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Williams, 529 U.S. at 407-08; see also Bell, 535 U.S. at 694. “Finally,
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 that the state court’s presumptively
correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005,
1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins,
546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless
the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C.
§ 2254(e)(1)).

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IV.

DISCUSSION
Petitioner asserts three grounds for habeas relief. In Ground One, Petitioner argues that

the trial court erred in denying Petitioner’s motion to suppress the out-of-court identifications
made by Salvato and Washington. In Ground Two, he contends that he was denied effective
assistance of counsel in violation of the Sixth Amendment because his trial counsel failed to file
a motion to sever the counts related to the robbery of Salvato from those related to the robbery of
Washington before the first day of trial. In Ground Three, Petitioner argues that he was denied
effective assistance of counsel in violation of the Sixth Amendment in that his trial counsel failed
to object to a prosecutor’s remark about Petitioner’s future dangerousness during closing
arguments. The Court will address each ground in turn.
A.

Ground One: Failure to Suppress Out-of-Court Identification Testimony

Petitioner argues in Ground One that the trial court erred in denying his motion to
suppress the out-of-court identifications made by Salvato and Washington. Petitioner has not
specified precisely which of the four out-of-court identifications in the record he intends to
challenge, nor has he set forth supporting facts relating to his challenges. In his direct appeal,
Petitioner made arguments regarding only three of the identifications: Washington’s photo lineup
identification, Washington’s show-up identification, and Salvato’s live lineup identification.
Resp’t Ex. D at 16-21. Thus, to the extent that Petitioner raises a claim based on the fourth
identification (the photo lineup identification by Salvato), it is procedurally defaulted, and
Petitioner offers no basis for excusing the procedural default. 3 The Court will therefore address

3

A federal habeas court reviewing a state conviction under 28 U.S.C. § 2254 may only consider
claims that the petitioner has presented in state court in conformity with state procedural rules.
Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012). “In Missouri, a claim must be
presented at each step of the judicial process to avoid default.” Id. at 1087. (citing Jolly v.
Gammon, 28 F.3d 51, 53 (8th Cir. 1994)). Here, however, Petitioner failed to present his
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only the three out-of-court identifications that were raised by Petitioner and denied by the
Missouri Court of Appeals on the merits. Resp’t Ex. F.
1. Washington’s photo lineup identification
Petitioner first argued in his direct appeal that Washington’s photo lineup identification
was unduly suggestive because it was based on a lineup created using Salvato’s description of
his robber (rather than hers) and because the police created a sense of urgency by approaching
her with the photo lineup only minutes after the robbery occurred. Resp’t Ex. D at 16-18.
The Supreme Court has recognized that there is “a due process check on the admission of
eyewitness identification, applicable when the police have arranged suggestive circumstances
leading the witness to identify a particular person as the perpetrator of a crime.” Perry v. New
Hampshire, 132 S. Ct. 716, 720(2012). However, even if there is “[a]n identification infected by
improper police influence,” it “is not automatically excluded.” Id. If “the indicia of reliability are
strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances,
the identification evidence ordinarily will be admitted.” Id. A “totality of the circumstances”
approach is used to assess the reliability of an identification, and the factors to be considered
include “‘the opportunity of the witness to view the criminal at the time of the crime, the
witness’ degree of attention, the accuracy of his prior description of the criminal, the level of
certainty demonstrated at the confrontation, and the time between the crime and the
confrontation.’” Id. at 725 & n.5 (quoting Manson v. Braithwaite, 432 U.S. 98, 114 (1977)).

challenge to Salvato’s photo lineup identification in the Missouri Court of Appeals.
Consequently, it is procedurally defaulted unless Petitioner can show either (1) cause for the
default and actual prejudice as a result of the constitutional violation, or (2) that a failure to
consider the claim would result in a fundamental miscarriage of justice. Murphy v. King, 652
F.3d 845, 850 (8th Cir. 2011) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
Petitioner has offered no argument that either condition for excusing procedural default is met.
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Applying the first step of inquiry described in Perry, the Missouri Court of Appeals
found that the identification was not improperly suggestive, reasoning that “nothing in the record
suggests that Washington based her identification on the procedures employed by the police or
that she felt pressured to make a selection.” Resp’t. Ex. F at 3. As the state court noted, the photo
lineup included six photos of individuals with physical characteristics similar to those of
Petitioner, and the officer who showed her the photographs cautioned her that her robber might
or might not appear in the lineup. Resp’t Ex. A at 131-36, Resp’t. Ex. B at 286-87. Moreover,
Washington testified that no one was rushing her when she identified Petitioner’s photo, that the
officers did not tell her that they wanted her to pick Petitioner, that the decision was hers, and
that she selected Petitioner’s photo because “I saw the picture of the man that robbed me.”
Resp’t Ex. A at 160-61, 236. The state court’s finding that the circumstances were not suggestive
was not an unreasonable application of federal law. See United States v. Triplett, 104 F.3d 1074,
1079-80 (8th Cir. 1997) (lineup not suggestive where witness was shown five individuals with
similar physical characteristics and asked whether he recognized them, where the detectives did
not suggest that any particular person in the lineup was implicated and did not indicate that the
witness should identify any specific person).
Applying the second step of the inquiry described in Perry, the Missouri Court of
Appeals found that even assuming that this identification involved suggestive circumstances, it
was nonetheless independently reliable in light of the five reliability factors identified by the
Supreme Court. Resp’t Ex. F at 6-7; Perry, 132 S. Ct. at 725 & n.5. That determination was
reasonable. First, Washington had a good opportunity to view her robber at the time of the crime,
viewing him for approximately nine minutes at close range. Resp’t Ex. A at 212-13. Second,
Washington paid close attention to Petitioner during her robbery, looking at his face “the whole

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time.” Resp’t Ex. A at 213. Third, the Missouri Court of Appeals found that Washington gave an
accurate description of Petitioner, and Petitioner has not established that that was an
unreasonable finding. 4 Fourth, Washington testified that she was 100% certain of her
identification. Resp’t Ex. A at 161, 237-38. Fifth, Washington made her identification within
about an hour of the time she was robbed, which enhances its reliability. In light of this record,
the Missouri Court of Appeals’ conclusion that this identification was sufficiently reliable to be
admissible was not an unreasonable application of federal law and did not involve an
unreasonable determination of the facts. See, e.g., Briscoe v. Cty. of St. Louis, Mo., 690 F.3d
1004, 1012 (8th Cir. 2012) (identification reliable where the victim “had ample opportunity to
view her attacker during the prolonged and well-lit encounter,” “focused on his face in order to
identify him later,” gave a “pre-identification description of her attacker’s face [that] was fairly
consistent with [the lineup] photo,” “expressed complete confidence in her identification,” and
“made the identification within hours of the attack”).
2. Washington’s show-up identification
Second, Petitioner argued that Washington’s show-up identification was impermissibly
suggestive because (1) Petitioner was handcuffed and standing next to a police officer during the
encounter and the police were shining lights on him, and (2) the show-up identification occurred
shortly after Washington viewed the photo lineup in which Petitioner had appeared. Resp’t. Ex.
D at 18-19. Applying the first step of the inquiry, the Missouri Court of Appeals found that
Washington’s show-up identification was not impermissibly suggestive. Resp’t Ex. F at 3-4.
That conclusion did not involve an unreasonable application of federal law or an unreasonable

4

Washington described her robber as a black male, 5’10” to 5’11”, with a medium build and
medium complexion. Resp’t Ex. A at 233-34. She testified Petitioner appeared heavier at trial
than he had when he robbed her. Resp’t Ex. A at 240-42.
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determination of the facts. In United States v. Pickar, 616 F.3d 821, 827-28 (8th Cir. 2010), the
Eighth Circuit held that an identification was not unduly suggestive even though the suspect was
shown to witnesses while standing handcuffed next to a uniformed police officer with a
flashlight being shined in his face. The court noted that “‘absent special elements of unfairness,
prompt on-the-scene confrontations do not entail due process violations.’” Id. (quoting United
States v. King, 148 F.3d 968, 970 (8th Cir. 1998)). See also United States v. Martinez, 462 F.3d
903, 910-11 (8th Cir. 2006) (show-up identification not unduly suggestive where the suspect was
handcuffed, police officers were present, and the suspect had been driven to the scene in a police
car). The facts of this case are quite similar to those in Pickar and Martinez. In addition, the
Eighth Circuit has held that a live lineup is not unduly suggestive merely because the defendant
was the only individual to appear in both that lineup and an earlier photo lineup. See Briscoe,
690 F.3d at 1014. Given the Eighth Circuit’s precedents in Pickar, Martinez, and Briscoe, the
Court cannot say that the Missouri Court of Appeals’ ruling involved an unreasonable
application of clearly established federal law or an unreasonable determination of the facts.
Moreover, applying the second step of the inquiry, the Missouri Court of Appeals found
that even assuming that this identification involved suggestive circumstances, it was nonetheless
independently reliable in light of the five reliability factors identified by the Supreme Court, as
discussed above with respect to Washington’s photo lineup identification. Resp’t Ex. F at 6-7.
Notably, the show-up identification was made within about an hour of the robbery, and
Washington testified that she was 100% sure that the person she saw at the show-up
identification was the person that robbed her. Resp’t Ex. A at 222. The Missouri Court of
Appeals’ determination was reasonable in light of the record and was not an unreasonable
application of federal law. Thus, even assuming arguendo that the show-up identification was

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impermissibly suggestive, Petitioner would not be entitled to relief based on admission of this
identification.
3. Salvato’s live lineup identification
Third, Petitioner argued that Salvato’s live lineup identification was impermissibly
suggestive because it was made after Salvato had already picked Petitioner’s photo out of a
lineup and Salvato therefore knew who he was looking for. Resp’t Ex. D at 19-20. However, as
the Missouri Court of Appeals found and as the Eighth Circuit recognized in Briscoe, the fact
that a live lineup identification was conducted after a photo lineup does not, standing alone,
make the resulting identification impermissibly suggestive. Resp’t Ex. F at 5-6; Briscoe, 690
F.3d at 1014. As the Missouri Court of Appeals reasonably found, nothing in the record suggests
that Salvato’s identification at the live lineup arose from the earlier photo lineup identification,
and so it was not impermissibly suggestive.
In addition, applying the second step of the inquiry, the Missouri Court of Appeals found
that even assuming that the identification was suggestive, it was nonetheless independently
reliable in light of the relevant reliability factors. Resp’t Ex. F at 6-7. That determination was
reasonable. First, Salvato had a good opportunity to view Petitioner at the time of the crime,
viewing him from two to three feet away for approximately ten minutes in a “well lit” parking
lot. Resp’t Ex. A at 179, 181-82. Second, Salvato paid close attention to the robber during the
encounter, testifying that he “was trying to get a good ID on [the robber].” Id. at 180. Third, the
Missouri Court of Appeals found that Salvato gave an accurate description of Petitioner, which

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was not an unreasonable finding in light of the record. 5 Fourth, Salvato’s identification was made
only two days after the robbery. Id. at 138-41.
For all of the above reasons, the Missouri Court of Appeals’ conclusions with regard to
the challenged identifications did not involve an unreasonable application of federal law or an
unreasonable determination of the facts. Thus, Ground One must be denied.
B.

Ground Two: Ineffective Assistance of Counsel—Failure to File Pretrial
Motion to Sever

In Ground Two, Petitioner contends that he was denied effective assistance of counsel in
violation of the Sixth Amendment because his trial counsel failed to file a motion to sever the
counts related to the robbery of Salvato from those related to the robbery of Washington before
the first day of trial. (Counsel did make an oral motion to sever on the first day of trial, which the
trial court considered and denied on the record. Resp’t. Ex. A at 4-6.) Petitioner raised this claim
in his motion for post-conviction relief and his appeal from the denial of that motion, and the
Missouri Court of Appeals denied the claim on the merits. Resp’t Ex. J at 4-6.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective
assistance of counsel, Petitioner must show that (1) “[his] counsel’s performance was deficient,”
and (2) “the deficient performance prejudiced the defense.” Id. at 687; see also Paulson v.
Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). With regard to the performance prong,
the Supreme Court in Strickland instructed that “[j]udicial scrutiny of counsel’s performance
must be highly deferential.” Id. at 689. Consequently, to prevail on the performance prong,
Petitioner bears a heavy burden in overcoming “a strong presumption that counsel’s conduct falls
5

Salvato described his robber as a black male, 5’8”, with a slender build and dark complexion.
Resp’t. Ex. A at 183, 197. He testified that Petitioner appeared heavier at trial than he had when
he robbed them. Resp’t Ex. A at 204-06.
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within the wide range of reasonable professional assistance” and “might be considered sound
trial strategy.” Id. (citation and internal quotation marks omitted). With regard to the prejudice
prong, deficient performance prejudices a petitioner’s defense only when “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
When this Court reviews claims of ineffective assistance of counsel in the habeas context,
it must bear in mind that “[t]aken together, AEDPA and Strickland establish a ‘doubly
deferential standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting
Cullen v. Pinholster, 131 S. Ct 1388, 1410 (2011)). In the context of a habeas claim, it is not
sufficient for a petitioner to “show that he would have satisfied Strickland’s test if his claim were
being analyzed in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he
must show that the [state appellate court] applied Strickland to the facts of his case in an
objectively unreasonable manner.” Id. at 699.
In denying Petitioner relief on Ground Two, the Missouri Court of Appeals first found
that Petitioner could not establish the performance prong of Strickland because he had failed to
show any error by his trial counsel. The court noted that Petitioner’s trial counsel did file a
motion to sever that was considered and denied by the trial court and that Petitioner could not
show that filing the motion earlier would have led to a different result. Resp’t. Ex. J at 4. Second,
the Missouri Court of Appeals found that Petitioner could not establish the prejudice prong,
because “the record shows [Petitioner’s] offenses were properly joined” under Missouri state law
and therefore the motion “would not have been successful.” Id. at 5-6. The Missouri Court of
Appeals made this determination based on its interpretation of Mo. Rev. Stat. §§ 545.140(2) and

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545.885, as well as Rules 23.05 and 24.07 of the Missouri Rules of Criminal Procedure. Id. at 56.
The Missouri Court of Appeals’ decision was not contrary to, or an objectively
unreasonable application of, Strickland. The state court properly articulated the Strickland
standard and properly articulated the requirement for showing deficient performance and
prejudice under Strickland. It was not objectively unreasonable for the state court to find that
trial counsel did not err by filing a motion on the first day of trial that would have been
unsuccessful under Missouri law regardless of when it was filed, nor was it objectively
unreasonable for the state court to find that Petitioner was not prejudiced under Strickland by his
counsel’s failure to file a motion that would have been unsuccessful under Missouri law.
“Determinations of state law made by a state court are binding on a federal court in habeas
proceedings.” Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir. 2005). This court cannot “secondguess the decision of a Missouri state court on Missouri law.” Arnold v. Dormire, 675 F.3d 1082,
1086 (8th Cir. 2012). See also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state law
questions.”).
For all of the above reasons, Ground Two must be denied.
C.

Ground Three: Ineffective Assistance of Counsel—Failure to Object to
Prosecutor Remark

In Ground Three, Petitioner argues that he was denied effective assistance of counsel in
violation of the Sixth Amendment in that his trial counsel failed to object to the following
statement by the prosecutor during closing argument: “Ladies and gentlemen, there is no doubt
that [Petitioner] did what he did. And these vile and heinous actions need to be held accountable.
He cannot be allowed to walk the streets and do this again.” Resp’t Ex. B at 361. Petitioner
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raised this claim in his motion for post-conviction relief and his appeal from the denial of that
motion, and the Missouri Court of Appeals denied the claim on its merits. Resp’t Ex. J at, 6-8.
As discussed above, to prevail on a claim of ineffective assistance of counsel, Petitioner
must show that (1) “[his] counsel’s performance was deficient” and (2) “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. at 687. Because the
state court has already addressed this claim, Petitioner also “must show that the [state appellate
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Bell v.
Cone, 535 U.S. at 699. This assessment is made in light of the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
The Missouri Court of Appeals articulated the Strickland standard and found that neither
prong was satisfied. First, it found that counsel was not deficient, because the decision not to
object to the statement was a reasonable trial strategy based on a desire not to highlight a
problematic area. Resp’t Ex. J at 7. Second, the court found no prejudice because in light of the
overwhelming evidence against Petitioner, there was no reasonable probability that the
prosecutor’s comment affected the outcome of the trial. Id.
The Missouri Court of Appeal’s decision did not involve an objectively unreasonable
application of Strickland. As to the performance prong, when trial counsel decides not to object
to a prosecutor’s statement in a summation, courts will generally presume it to have been a
strategic choice. Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir. 1994). Only when a
prosecutor’s comments were so improper that trial counsel’s only defensible choice was to object
will a failure to do so constitute deficient counsel performance under the first prong of
Strickland. Id. Here, it was not objectively unreasonable for the state court to find that trial
counsel’s decision not to object to this statement was a reasonable trial strategy, because

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objecting might have focused the jury’s attention on the comment or annoyed the jury. See id.
(“Counsel’s decision to object during the summation must take into account the possibility that
the court will overrule it and that the objection will either antagonize the jury or underscore the
prosecutor’s words in their minds.”); Dansby v. Hobbs, 766 F.3d 809, 836 (8th Cir. 2014)
(“Whether to object during opposing counsel’s summation to the jury is a matter of trial strategy
. . . Strategic decisions like this one are virtually unchallengeable, and we see no substantial
argument that [the attorney’s] decision was outside the wide range of reasonable professional
assistance.”) (internal citations and quotation marks omitted). As to the prejudice prong, it was
not unreasonable for the Missouri Court of Appeals to determine that given the substantial
evidence against Petitioner, there was no reasonable probability that the jury would have
acquitted Petitioner but for the prosecutor’s arguably objectionable comment.
For all of the above reasons, Ground Three must be denied.
V.

CONCLUSION
For all of the above reasons, Petitioner is not entitled to federal habeas relief. 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 judge or district judge issues a Certificate of
Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the
petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);
Tiedman 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) (citation
omitted). The Court finds that reasonable jurists could not differ on Petitioner’s claim, so the
Court will not issue a Certificate of Appealability. Accordingly,

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IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no Certificate of Appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.
/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 8th day of September, 2015.

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