Simmons v. Norman

Filing 41

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Jay Cassady, Warden of the JCCC where Petitioner is incarcerated, is SUBSTITUTED for the originally named Respondent. IT IS FURTHER ORDERED that the attachment to Petitioner's Petition [Doc. [1-1]] , as well as Respondent's exhibits 2, 3, and 4, be placed and maintained under seal. IT IS FURTHER ORDERED that the Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. IT IS FINALLY ORDERED that no certificate of appealability shall issue. 28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 6/17/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICHARD C. SIMMONS,
Petitioner,
vs.
JAY CASSADY, Warden of the
Jefferson City Correctional Center,
Respondent.1

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Case no. 4:12cv01138 TCM

MEMORANDUM AND ORDER
This matter is before the Court for review and final disposition of a petition for writ of
habeas corpus filed by Richard C. Simmons ("Petitioner") pursuant to 28 U.S.C. § 2254 to
challenge a 2009 judgment entered following a trial in which the jury found Petitioner guilty
of first-degree murder and armed criminal action in the January 2008 death of Pamela Pugh
("Victim").2 Respondent filed a response [Doc. 11] to the petition, including materials from
the underlying state court proceedings [Doc. 12].3 Petitioner attached copies of several state
court materials to his petition [Doc. 1-1] and filed a traverse [Doc. 26].

1

Petitioner is reportedly incarcerated at the Jefferson City Correctional Center (JCCC), where
Jay Cassady is now the warden. Therefore, the Court will substitute Jay Cassady for the originally
named Respondent. See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts. Because Petitioner is not subject to consecutive sentences imposed by the trial court
for the conviction he is challenging in this federal habeas proceeding, the Court will not add Chris
Koster, the Attorney General of the State of Missouri, as a named respondent in this proceeding. See
Rule 2(b) of the Rules Governing Section 2254 Cases in the United States District Courts.
2

This matter is before the undersigned United States Magistrate Judge on consent of the
parties. 28 U.S.C. § 636(c).
3

The Court will require that the attachment to Petitioner's Petition [Doc. 1-1], as well as
Respondent's exhibits 2, 3, and 4 be placed and maintained under seal as they contain personally
identifying information.

Petitioner presents four grounds for relief in his petition: that the pre-trial court4 erred
in not allowing Petitioner's attorney to withdraw or in not granting a continuance shortly before
the start of trial (ground one); that his trial attorney provided ineffective assistance of counsel
by failing to call as a witness Estress Lindsay in apartment 33, as well as the unidentified
tenants of apartments 30 and 31, and "the maintenance man for the apartments" in the building
on Greenwood where Petitioner and Victim once lived ("Greenwood apartments") (ground
two); that the trial court erred in allowing the jury to see Petitioner in the courtroom in
handcuffs (ground three); and that Petitioner's trial attorney provided ineffective assistance of
counsel in failing to elicit testimony from Petitioner that Victim had assaulted him in 2007 and
that Petitioner was under the influence of several prescription medications and alcohol at the
time of the January 2008 incident (ground four).
After careful consideration, the Court will deny the petition upon finding no merit in
the part of ground four contending that Petitioner's trial attorney provided ineffective assistance
of counsel in failing to elicit testimony from Petitioner about Victim's prior assaults on
Petitioner, and concluding that the remaining claims are procedurally barred and may not be
considered on their merits.
Background
In mid-December 2008, Petitioner was charged, as a prior and persistent offender, with
one count of first-degree murder in violation of Mo. Rev. Stat. § 565.020 and one count of
armed criminal action in violation of Mo. Rev. Stat. § 571.015 for causing the death of Victim

4

References to the pre-trial court are references to the court and judge handling Petitioner's
criminal case before the case was assigned to another judge for trial, which will be referred to as the
trial court.
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on January 17, 2008, by striking her with a dangerous instrument.5 (Indictment, Resp't Ex. 2,
at 8-9.) Petitioner was arraigned on those charges on January 6, 2009. (Docket entry, dated
Jan. 6, 2009, Legal File, Resp't Ex. 2, at 1.)
On January 13, 2009, over the objection of the State, Petitioner requested a continuance
of the January 20, 2009, trial date because he had recently been arraigned on the first-degree
murder charge and "need[ed] time to adjust trial strategy or negotiate plea agreement." (Order,
filed Jan. 13, 2009, Legal File, Resp't Ex. 2, at 15.) By order, dated January 14, 2009, the pretrial court rescheduled trial for February 9, 2009. (Order, filed Jan. 14, 2009, Legal File, Resp't
Ex. 2, at 14.) On February 6, 2009, the pre-trial court denied Petitioner's trial attorney's motion
to withdraw "to allow private counsel . . . to enter" his appearance for Petitioner. (Order, filed
Feb. 6, 2009, Legal File, Resp't Ex. 2, at 26; see also colloquy between Petitioner and the trial
court, outside the presence of the venire panel, discussing Petitioner's desire to have a private
attorney represent him, Trial Tr., Resp't Ex. 1, at 150-56.) Petitioner reports that the new
attorney requested a continuance of the trial date.
In addition to playing the recordings of the 911 telephone calls (Trial Tr., Resp't Ex. 1,
at 205) and introducing numerous exhibits, the State presented fourteen witnesses during its
case-in-chief and rebuttal at the three-day trial that began on February 9, 2009. (Trial Tr.,
Resp't Ex. 1.) Petitioner testified in defense of the charges. (Id. at 294-370.)

5

The record reveals that Petitioner was originally charged in early 2008 for the incident
resulting in Victim's death. (See copy of part of original Indictment available at Doc. 1-1 at 3;
Sentencing Tr., Resp't Ex. 1 at 460; Post-Conviction Mot. Hr'g Tr., Resp't Ex. 6, at 10-11; see also
copy of part of docket sheet provided as Exhibit 13 to Pet'r Pro Se Post-Conviction Mot., Legal File,
Resp't Ex. 7, at 22.) In particular, after a complaint was filed, Petitioner was charged by an indictment
filed in February 2008 with murder in the second degree and armed criminal action for Victim's death.
(See Post-Conviction Mot. Hr'g Tr., Resp't Ex. 6, at 8-12.) The State subsequently filed a
memorandum of nolle prosequi with respect to the second-degree murder and armed criminal action
charges. (See Post-Conviction Mot. Hr'g Tr., Resp't Ex. 6, at 18-20.)
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Victim's mother, Bernice Tolbert, testified, in relevant part, that Petitioner made threats
to her through telephone calls Petitioner repeatedly made to her at night in late 2007 after
Victim had stopped staying with Petitioner. (Id. at 168-72.) In those calls, Petitioner
threatened to kill her or Victim. (Id. at 171.) In an effort to stop those telephone calls, Tolbert
applied for a restraining order against Petitioner. (Id. at 172.) The telephone calls ended after
Victim began staying with Petitioner again. (Id. at 178.)
Oscar Davis stated that, before her death, Victim came to his home five days a week to
take care of him for three hours in the late afternoon each day. (Id. at 269-70.) Davis noted
that Petitioner called Victim on Davis' home telephone every day she was there. (Id. at 27071.) On January 16, 2008, Petitioner called and told Davis that he was going to "knock" the
"bitch," which Davis took as a threat to "tak[e Victim's] life." (Id. at 272-74.)
During January 2008 Queena Johnson lived on the second floor of the Page Avenue
apartment building where Petitioner and Victim lived on the third floor. (Id. at 188-89.) She
saw Petitioner and Victim as they left the building to walk to a store and when they returned,
with chips, between 4:00 p.m. and 5:00 p.m. on January 16, 2008. (Id. at 190-93; 197-98.) She
did not notice that Victim had any injuries on those occasions. (Id. at 191-93.) That evening
she stayed in her apartment. (Id. at 194.) After awhile she heard what sounded like furniture
being moved, voices, and then Victim saying "Don't put your hands on me no more." (Id. at
194-96.) The sound woke her up at about 2:00 a.m. on January 17th. (Id. at 196.)
Petitioner's sister, Sherrion Zinn, testified that Petitioner called her early the morning
of January 17, 2008, telling her that Victim was lying on the bathroom floor; and she called
911, after that call and after a subsequent call from Petitioner, to report that Victim was on the
bathroom floor and to assist the responders in locating the correct apartment. (Id. at 179-88.)
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Zachary Welker, an officer with the St. Louis Metropolitan Police Department ("City
Police Department"), testified that at approximately 9:15 a.m. on January 17, 2008, he received
a call to investigate a "sudden death" in the 5300 block of Page Avenue. (Id. at 201-02.) The
call to respond resulted from two 911 calls that had been received earlier. (Id. at 202-03.) He
was originally directed to 5354 Page Avenue, learned that address did not exist, and reported
that 5356 Page matched the description that had been provided and would be the location he
checked. (Id.) He knocked on the door of apartment 303 at 5356 Page Avenue and Petitioner
answered. (Id. at 206-07.) Petitioner let Officer Welker in the apartment, which did not appear
to be in disarray, and motioned toward the bathroom, where Officer Welker noticed a naked
black female lying on the floor, blood smeared on the bathtub and floor, and the presence of
"chip or snack bags" as well as cleaning supplies. (Id. at 208-09.) Officer Welker handcuffed
Petitioner, who did not appear to have any injuries and had a tear in the t-shirt he was wearing.
(Id. at 210, 213.)
Tom Carroll, a homicide detective with the City Police Department, responded to the
scene at apartment 303 of 5356 Page Avenue on January 17, 2008, noticed some blood in the
bedroom and found the bathroom "covered in blood." (Id. at 277-78.) Additionally, he saw
Victim, with a chip bag and a knife by her body, and several cleaning items, in the bathroom.
(Id. at 282-83.) Petitioner was at the scene in handcuffs, and appeared to have no injuries but
several holes in the t-shirt he was wearing. (Id. at 286-88.)
Dawn Albers, a police officer with the City Police Department who works in that
Department's crime lab, testified that she arrived at the crime scene and noticed blood splatter
on the floor, walls, and television in the bedroom and in numerous places in the bathroom, and
took pictures of the scene. (Id. at 233-36). She swabbed the blood splatter and seized a cane

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she found in the bedroom, as well as various items, including a knife, she found in the
bathroom. (Id. at 237-45.)
Erin Duke, a forensic biologist with the City Police Department crime lab, found
possible biologic fluids on the cane, swabs, and other items seized from the bathroom and
bedroom, and stored them for later DNA analysis. (Id. at 248-59.)
Karen Preiter, a DNA analyst for the City Police Department, tested swabs from the cane
and other items seized from the bathroom, swabs of splatter at the scene, Petitioner's clothing
samples, and items from Victim, against known samples from Victim and Petitioner. (Id. at
261-268.) Her analysis revealed that Victim was the major contributor of the DNA on the
cane, blood spatter samples, and on cuttings from the jeans and t-shirt worn by Petitioner. (Id.)
Dr. Ariel Goldschmidt, a forensic pathologist who worked at the City of St. Louis
medical examiner's office, performed an autopsy on Victim. (Id.) Dr. Goldschmidt described
Victim's injuries as including several lacerations and contusions on her head, specifically, on
her scalp, face, ears, and tongue; bleeding under her scalp and on her brain; and injuries all over
her body, including two fractured ribs in the back as well as contusions and abrasions on her
chest, arms, back, and front. (Id. at 216-224.) She testified that the injuries to Victim's face
could have been caused by a fist or a cane, and opined Victim died from "blunt trauma of [or
strong force on] the head and back." (Id. at 227-28.)
After the State rested, Petitioner unsuccessfully presented a motion for judgment of
acquittal at the close of the State's evidence, and waived an opening statement. (See id. at 293,
294.) Petitioner then testified. (Id. at 295.)
Petitioner said he and Victim began living together at the end of 2006, in the
Greenwood apartments and then, starting in November 2007, in an apartment on Page Avenue.

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(Id. at 313-14, 331.) They lived apart for a short while in December 2007, and then moved back
in together that month. (Id. at 314.)
On January 16, 2008, Petitioner testified he was using a cane to walk because his gout
had "flared." (Id. at 325.) During that evening Petitioner and Victim were drinking alcohol and
arguing in their apartment. (Id. at 319-20.) Petitioner had been treated with radiation and
chemotherapy for throat cancer about five months earlier, lost one hundred pounds, and took
several medications that proscribed drinking alcohol while taking the medications. (Id. at 32023.) Petitioner reported that, when he was on his medications and drank alcohol, he felt
weaker, uncoordinated, confused, and drowsy. (Id. at 322-23.) The night of January 16, 2008,
Victim, who weighed more than Petitioner, started "swinging a knife" at Petitioner; he "tr[ied]
to hit her and hit her with [his] cane" "to stop her from swinging the knife"; at some point, she
dropped the knife; then she fell into the bathtub, and got out and "passed out," so Petitioner
thought she had had a heart attack. (Id. at 323-29; 350.) He tried to call his sister who is a
nurse "to find out how to do CPR," but called a different sister, and then "passed out." (Id. at
329-30.) He knew that Victim, Victim's mother, and another woman had sought orders of
protection against him; in early January 2008 he went to one court proceeding that had been
scheduled to address those orders, and that proceeding was rescheduled for January 17th. (Id.
at 340-42.)
During rebuttal, the State presented the testimony of five witnesses. George Boggs, an
officer with the City Police Department, testified that he responded in April 2007 to a call of
"a cutting" and found Victim "bleeding from the right side of her cheek" where there was a cut
that was approximately an inch long. (Id. at 385-87.) She told Officer Boggs that Petitioner
had cut her. (Id. at 386.) Scott Sailor, an officer with the City Police Department who was a

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detective in May 2007, testified that he was present when Petitioner was arrested in May 2007
for first-degree assault and armed criminal action for the incident involving Victim. (Id. at 38890.) Detective Sailor's partner, who was arresting Petitioner at that time, advised Petitioner of
his Miranda rights and Petitioner stated that he understood them. (Id. at 390.) Petitioner then
told Detective Sailor that "she had forgiven him for the incident and that they were okay." (Id.)
Linda Russo, a latent print examiner for the City Police Department, testified that she
examined the knife found in the bathroom for the presence of identifiable latent prints and
found none. (Id. at 394-96.)
Detective Carroll took the stand again and testified that, when he returned to the
homicide office around noon on January 17, 2008, he advised Petitioner of his Miranda rights
and Petitioner indicated that he understood those. (Id. at 398-99.) Petitioner then told
Detective Carroll that Victim was dropped off at the Page Avenue apartment at about 9:30 p.m.
on January 16th, after she was in a fight on Romaine Place; Petitioner went to bed; Petitioner
heard Victim slip and fall in the bathroom a couple of times; then called his sister to tell her that
Victim "had slipped and f[a]ll[en] in the bathroom" and later called his sister again to say "he
thought [Victim] was . . . dead on the bathroom floor. " (Id. at 400-01.) Petitioner also told
Detective Carroll that Victim "came at him with a knife [and h]e hit her in the hand to knock
the knife away," although he did not indicate whether it "was an isolated hit or [part of] an
ongoing struggle." (Id. at 401; see also id. at 405.) Petitioner said he was "mad" at Victim for
being at Romaine Place because "she was supposed to be at work [and] ha[d] a boyfriend
there"; and reported to Detective Carroll that he "had hit [Victim] before" and there were
restraining orders "from [Victim's] people." (Id. at 402.) Finally Petitioner told Detective
Carroll that after he woke up on January 17th he "found [Victim] dead on the bathroom floor.

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There was blood everywhere, he started to clean it up" and then stopped to call his sister. (Id.
at 402-03.) Upon investigation, Detective Carroll learned that a place at 5889 Romaine Place
may have a connection to Victim, but it was a vacant building. (Id. at 403-04.)
Finally, Victim's younger sister, Kimberly Boehm, testified that Victim loved Petitioner
and was not dating anyone else while she dated Petitioner; and that her father owned the
property at 5889 Romaine Place, where their family had lived years before, but it was a vacant
building in January 2008. (Id. at 406-08.)
Petitioner submitted a motion for judgment of acquittal at the close of all the evidence,
which the trial court denied; and the trial court found Petitioner to be a prior and persistent
offender. (Id. at 410-11.)
The jury found Petitioner guilty of the charged offenses of first-degree murder and
armed criminal action. (Verdict Forms, Legal File, Resp't Ex. 2, at 50 and 51.) The trial court
subsequently denied Petitioner's motion for judgment of acquittal notwithstanding the verdict
of the jury or in the alternative motion for a new trial; and sentenced Petitioner to concurrent
terms of imprisonment of life without the possibility of probation or parole for the first-degree
murder offense and twelve years for the armed criminal action offense. (Sentencing Tr., Resp't
Ex. 1, at 453, 457; J., Legal File, Resp't Ex. 2 at 71-74.)
Petitioner presented two points in his direct appeal. (See Pet'r Br., Resp't Ex. 3, at 15,
16, 17, 24.) First, Petitioner contended that his rights to due process and a fair and impartial
trial as guaranteed by the Fifth and Fourteenth Amendments were violated in that there was
insufficient evidence to establish the corpus delicti of first-degree murder and armed criminal
action because there was insufficient evidence that Petitioner directly caused Victim's death by
beating her. (Id. at 15, 17.) For his second point, Petitioner argued that the trial court violated

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his rights to due process and to a fair and impartial trial as guaranteed by the Fifth, Sixth, and
Fourteenth Amendments in that evidence of the earlier cutting incident was used to show
Petitioner's propensity to commit the crimes and to impeach Petitioner's credibility. (Id. at 16,
24.)
The Missouri Court of Appeals for the Eastern District affirmed the trial court's
judgment in a summary order, supplemented by a memorandum sent only to the parties setting
forth the reasons for the decision. (State v. Simmons, No. ED92822, Per Curiam Order and
Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Apr. 13, 2010, Resp't
Ex. 5.) In its memorandum, the state appellate court found the facts as follows:
Factual and Procedural Background
Viewed in the light most favorable to the jury verdict, the following
evidence was adduced at trial. On April 22, 2007, [Petitioner] confronted his
girlfriend, [Victim], and told her he wanted her to return a coat of his. [Victim]
gave [Petitioner] the coat, and [Petitioner] cut [Victim]'s right cheek with a knife.
For this attack, [Petitioner] was arrested for first-degree assault and armed
criminal action.
In November 2007, [Petitioner] and [Victim] moved into an apartment
together. Shortly thereafter, [Victim] moved out. [Petitioner] called [Victim]'s
mother's residence numerous times, threatening [Victim] and her mother, stating
that he was going to kill one of them. [Victim]'s mother obtained a restraining
order against [Petitioner]. Towards the end of 2007, [Victim] moved back in
with [Petitioner]. In the late afternoon of January 16, 2008, [Victim] was
caretaking for Oscar Davis (Davis) at Davis's residence. [Petitioner] called
Davis's house, threatening [Victim]'s life, saying that he was going to "knock the
bitch." Later that same evening, Queena Johnson (Johnson), a resident of the
floor below [Petitioner] and [Victim]'s apartment, heard furniture moving and
arguing coming from their apartment. Johnson heard [Victim] yell, "Don't put
your hands on me no more." Johnson went to bed at approximately 11:00 p.m.,
but was woken up at about 2:00 a.m. by the noise of furniture moving again in
[Petitioner] and [Victim]'s apartment. At 3:00 a.m. [Petitioner] called his sister,
Sherrion Zinn (Zinn), and told her that he had beaten [Victim] with a cane. Zinn
called 911 and told the operator, and the paramedics, that [Petitioner] had told
her that he had beaten [Victim] over the head with a cane and that she was dead
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on the floor.
Officer Zachary Welker (Welker) responded to [Petitioner]'s apartment,
where at [Petitioner]'s direction, he found [Victim] lying naked on the bathroom
floor, dead, bruised and bloody. Blood was smeared all over the bathroom floor,
bathtub, and shower curtain. Blood and hair were in the sink. On the bathroom
floor were bloody mops, buckets, rags, and clothing, and a kitchen knife with no
visible blood on it. Blood splatter were also discovered in [Petitioner]'s
bedroom, and a walking cane was seized from [Petitioner]'s bedroom that had
blood on it. Subsequent testing of DNA on the cane matched that of [Victim]
and [Petitioner].
[Victim]'s autopsy revealed that she had suffered two fractured ribs in her
back; contusions on her tongue, left ear, front upper chest, back and arms;
lacerations on her face and right side of her scalp; and internal bleeding
underneath her scalp and on the surface of her brain. The medical examiner
concluded that [Victim] died of blunt trauma to the head and back, and that her
lacerations were such that they could have been caused by a cane.
[Petitioner] was charged and convicted by a jury of first-degree murder
and armed criminal action. The trial court sentenced [Petitioner] to concurrent
terms of life imprisonment without the possibility of parole for the murder and
12 years' imprisonment for armed criminal action. . . .
(Id. at 2-3.)
With respect to Petitioner's argument that his rights to due process and a fair and
impartial trial were violated because there was insufficient evidence that he beat Victim to
death, the Missouri Court of Appeals stated,
Only when there is insufficient evidence to support a guilty verdict is a
directed verdict of acquittal authorized. State v. Sanchez, 186 S.W.3d 260, 266
(Mo. banc 2006). In reviewing the sufficiency of evidence underlying a jury
verdict, we must determine whether there was sufficient evidence from which a
reasonable juror could have found each element of the offense to have been
established beyond a reasonable doubt. State v. Reed, 181 S.W.3d 567, 569 (Mo.
banc 2006). On review, we view the evidence in the light most favorable to the
verdict, including favorable inferences that may be drawn from the evidence, and
disregard all evidence and inferences to the contrary. Id. We defer to the jury's
superior position to assess the credibility of witnesses and the weight and value
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of their testimony. State v. Johnson, 244 S.W.3d 144, 152 (Mo. banc 2008).
To be convicted of first-degree murder, a defendant must (1) knowingly,
(2) cause the death of another person, (3) after deliberation upon the matter.
State v. Roe, 6 S.W.3d 411, 414 (Mo. [Ct.] App. . . . 1999); State v. Ervin, 835
S.W.2d 905, 923 (Mo. banc 1992). The corpus delicti in a homicide case
consists of two elements: (1) proof of the death of the victim and (2) evidence
that the criminal agency of another was the cause of the victim's death. State v.
Edwards, 116 S.W.3d 511, 544 (Mo. banc 2003).
The State preseneted evidence that [Victim] (1) died, (2) by being
repeatedly struck and beaten to death by another with a cane, such fatal injuries
being blows to her head and back. [Petitioner] claims that the evidence presented
at trial established that it was just as likely that [Victim] died as a result of hitting
her head in the bathtub. The only evidence at trial that [Victim] hit her head in
the bathtub was [Petitioner]'s own testimony. We give deference to the superior
position of the jury to assess the credibility of witnesses and the weight and value
of their testimony. Johnson, 244 S.W.3d at 152. Furthermore, this inference is
contrary to the jury verdict. We view the evidence in the light most favorable to
the judgment, granting the State all reasonable inferences from the evidence and
disregarding any contrary evidence. Id.
There are three elements to the crime of first-degree murder: "A person
commits the crime of murder in the first degree if he (1) knowingly (2) causes the
death of another person (3) after deliberation upon the matter." Section 565.020;
State v. O'Brien, 857 S.W.2d 212, 217 (Mo. banc 1993).
Johnson testified that she heard [Petitioner] and [Victim] fighting
throughout the evening and into the morning of the murder. [Petitioner] called
Zinn immediately after the crime and told her he beat [Victim] with a cane. Zinn
told the 911 operator and paramedics that [Petitioner] had beaten [Victim] with
a cane and she was dead on the floor of the bathroom. [Petitioner]'s cane was
covered with blood from both [Victim] and [Petitioner]. The medical examiner
testified that [Victim] had contusions all over her body, indicating multiple blows
had been inflicted on her. [Victim] died from blunt trauma to the head and back,
according to the medical examiner's testimony. The medical examiner stated that
the trauma to [Victim]'s head could have been caused by a cane. We find that the
foregoing constitutes sufficient evidence from which a reasonable juror could
have found that [Petitioner] knowingly killed [Victim] beyond a reasonable
doubt. Reed, 181 S.W.3d at 569.
Proof of deliberation is ordinarily a function of evidence of the
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circumstances surrounding the killing. State v. Johnston, 957 S.W.[2]d 734. 747
(Mo. banc 1997). The infliction of multiple blows constitutes circumstances
surrounding the killing indicating deliberation. While the evidence of multiple
wounds is not conclusive, numerous wounds or repeated blows may support an
inference of deliberation. State v. Cole, 71 S.W.3d 163, 169 (Mo. banc 2002).
Deliberation requires only a brief moment of "cool reflection" and may be
inferred from the fact that a defendant had the opportunity to terminate an attack
after it began. Id. Here, there was also an all-night period of fighting that
became physical leading up to the murder. Furthermore, [Petitioner] had made
several threats to kill [Victim] before he actually did it. Again, we find this
evidence sufficient to cause a reasonable juror to find, beyond a reasonable
doubt, that [Petitioner] deliberated upon the murder of [Victim]. Reed, 181
S.W.3d at 569.
Based on the foregoing, Point I is denied.
(Simmons, No. ED92822, Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b),
dated Apr. 13, 2010, Resp't Ex. 5, at 4-6.)
In denying Petitioner's second point on appeal, in which he contended that his rights to
due process and a fair and impartial trial were violated by the admission of the earlier cutting
incident, the state appellate court found that
Evidence of prior bad acts is not admissible for the purpose of showing
the propensity of the defendant to commit the charged crimes. State v. Burns,
978 S.W.2d 759, 761 (Mo. banc 1998). Evidence of prior bad acts may be
admissible, however, if it is logically relevant in that it has some tendency to
establish directly the defendant's guilt of the charged crimes and if its probative
value outweighs its prejudicial effect. Id.
In murder cases, prior misconduct by the defendant toward the victim is
logically relevant to show motive, intent, or absence of mistake or accident.
State v. Tolliver, 101 S.W.3d 313, 315 (Mo. [Ct.] App. . . . 2003). Such evidence
is only admissible for those purposes, however, if the defendant puts motive,
intent, mistake or accident at issue in the case. Id. Otherwise, the prejudicial
effect of admitting the evidence is substantial. Id.
In the instant case, [Petitioner] introduced at trial the issue of his motive
and intent in striking [Victim] because he claimed that he struck [Victim] with
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his cane in self-defense. Therefore, it was permissible for the State to present
evidence that [Petitioner] had cut [Victim]'s cheek with a knife on a prior
occasion. Raising self-defense to an assault or murder charge "puts motive and
intent squarely at issue, thereby making evidence of prior assaults against the
same victim relevant." [Id.] at 315. This evidence tended to show that he was the
initial aggressor in the fight with [Victim] that led to her death. As such, it was
admissible.
Accordingly, Point II is denied.
Simmons, No. ED92822, Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b),
dated Apr. 13, 2010, Resp't Ex. 5, at 6-8. The state appellate court issued its mandate on May
6, 2010. State v. Simmons, No. ED92822, May 6, 2010 docket entry (Docket sheet available
at https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited June 1, 2015). The
Missouri Court of Appeals' docket sheet for Petitioner's direct appeal reveals that Petitioner did
not seek review in a higher court.6 (See subsequent docket entries on Petitioner's direct appeal
docket sheet, id.)
Petitioner filed a timely pro se motion for post-conviction relief, in which he set forth
numerous claims, including seven claims that his trial attorney provided ineffective assistance
of counsel, a claim that the pre-trial court erred in denying his trial attorney's motion to
withdraw and his private attorney's request for a continuance; a claim that the change in charges
from second-degree murder and armed criminal action to first-degree murder and armed

6

That docket sheet does disclose that, in 2013, Petitioner filed in the Missouri Court of
Appeals two unsuccessful motions to recall the mandate and one unsuccessful motion to file an out-oftime post-conviction motion under Missouri Supreme Court Rule 29.15(b) ("motion for post-conviction
relief"). (See State v. Simmons, No. ED92822, docket entries dated June 17, 2013, June 18, 2013,
July 18, 2013, Aug. 6, 2013, Oct. 15, 2013, and Oct. 30, 2013 entry (Docket sheet available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited June 1, 2015).)
-14-

criminal action was "without jurisdiction," and several claims of trial court error. (Pet'r Pro Se
Post-Conviction Mot., Legal File, Resp't Ex. 7, at 4-31.)
For the ineffective assistance of counsel claims, Petitioner contended that his trial
attorney failed to interview or investigate prosecution witnesses, Tolbert and Davis, and failed
to investigate records about the telephone calls Petitioner reportedly made to Tolbert and Davis;
failed to investigate prosecution witness Boehm regarding the address on Romaine Place; failed
to call, interview, or investigate witnesses who would assist with Petitioner's defense,
specifically, Lindsay and two other unnamed residents who lived in the Greenwood apartments,
along with the property manager and maintenance man for that property; failed to interview or
investigate prosecution witness Johnson, or file a motion for production of favorable evidence,
"to show Ms. Johnson lied on the stand in exchange for a favor from the prosecution" because
she first stated she heard furniture moving and then said she heard someone say "don't hit me
no more, through the floor with [Petitioner's] t.v. on, with a nice volume, that stays on every
night"; failed to investigate the competence of prosecution witness Zinn; failed to investigate
or object to rebuttal witness Officer Boggs's testimony regarding Victim's out-of-court
statement to him, failed to investigate or object to rebuttal witness Officer Sailor's testimony
that Petitioner said Victim had told Petitioner that she forgave him for the cut on her cheek,
failed to investigate Victim's report to Maplewood police that Petitioner was harrassing her, and
failed to obtain Maplewood police department records from that incident and from "the
num[]erous . . . times [Petitioner] . . . call[ed] them on [Victim] for abuse and disturbance"; and
put Petitioner "on the stand [to] lie" that he "lost it" or "panicked" during the January 2008

-15-

incident. (Id. at 10-12.)
For the claim that the pre-trial court improperly denied Petitioner's trial attorney's motion
to withdraw, along with his private attorney's request for a continuance, Petitioner urges that
his attorney should have had at least 120 days after the new indictment to seek a continuance
and he was well within that time when, on February 6, 2009, he sought to have a new attorney
enter an appearance and that attorney requested a continuance of the February 9, 2009 trial date.
(Id. at 12.)
With respect to the claim that the trial court was without jurisdiction to increase the
murder charge, Petitioner contended that it was not permissible to make such a change because
the change increased the degree of the murder offense and the range of punishment. (Id. at 13.)
As to the alleged trial court errors, Petitioner argued that the court erroneously granted
the State's motion to strike five African-American venirepersons who had not disclosed a prior
arrest; the trial court erroneously overruled Petitioner's objection to the State's
mischaracterization of circumstantial evidence, which included physical evidence, during voir
dire; the trial court erroneously allowed the Sheriff to bring Petitioner into the courtroom while
still handcuffed; the trial court erroneously denied Petitioner's motion to suppress statements
made at the scene prior to Petitioner being given Miranda rights and at the police station after
Petitioner awakened and was given the Miranda rights; the trial court erred in granting the
State's motion in limine that Petitioner not be allowed to name the medications "whose
influence he was under at the time of th[is] incident"; the trial court erred in sustaining the
State's objections to questions that would allow Petitioner to testify to his intent or state of mind

-16-

at the time of the incident; the trial court erroneously overruled Petitioner's objection to Russo's
rebuttal testimony that no fingerprints were on the knife found at the scene; the trial court
erroneously granted the State's motion in limine precluding evidence of Victim's sexual
activity; and the trial court erroneously denied Petitioner's motions for judgment of acquittal
at the close of the State's evidence and at the close of all the evidence. (Id. at 13, 14, 18-19, 21,
29-31.)
In an amended motion for post-conviction relief filed by Petitioner's appointed attorney,
Petitioner requested an evidentiary hearing and presented four claims that his trial attorney
provided ineffective assistance of counsel and his rights to due process, to present a defense,
and to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments were violated
by that attorney's challenged conduct. (Pet'r Am. Post-Conviction Mot., Legal File, Resp't Ex.
7, at 35-65.) Specifically, Petitioner asserted his trial attorney failed to file a motion to dismiss
the first-degree murder and armed criminal action charges based on prosecutorial
vindictiveness, id. at 38-44; failed to elicit, during direct examination of Petitioner, testimony
about specific acts of violence that Victim committed against Petitioner prior to the January
2008 incident giving rise to the charges, id. at 44-51; failed to locate and call Lindsay to testify
"about his observations of [Victim]'s aggression toward" Petitioner when they lived in the
Greenwood apartments, id. at 51-56; and failed to request a mistrial after the venire panel
reportedly "observed [Petitioner] in handcuffs in the custody of two sheriffs," id. at 56-61.
The post-conviction motion court7 held an evidentiary hearing at which Petitioner's trial
7

The judge presiding over Petitioner's post-conviction motion proceeding had also presided
over Petitioner's criminal trial and sentencing proceedings.
-17-

attorney and Petitioner testified. Post-Conviction Mot. Hr'g Tr., Resp't Ex. 6 at 20-147. In
relevant part, Petitioner's trial attorney testified as follows
Q

Did [Petitioner] ever discuss with you that he felt as though he had
acted in self-defense in killing [Victim]?

A

. . . [M]any times [he expressed] a desire that we should . . . Use
the defense of self-defense . . . .

Q

In discussing with [Petitioner] the defense that he should present at trial,
did you have a recommendation as to what defense you felt was best?

A

Yes.

Q

What was the defense?

A

I felt that his best defense would be to show evidence of a sudden
passion to get a lesser charge.

Q

Are you talking about to get . . . voluntary manslaughter?

A

Voluntary manslaughter or murder second.
*

*

*

Q

Given the extent of [Victim]'s injuries and [Petitioner]'s testimony
that, in fact, she had dropped the knife and she had then fallen and
that's what caused her injuries, did you even believe that deadly
force was probable as a defense in this case?

A

No . . . .
*

*

*

A

I'm pretty sure he even testified he hit her with the cane a couple
times and knocked the knife out of her hand. So what I tried to
explain to him what I thought he finally understood was at that
point that threat was over.

Q

([Prosecutor]) Given that that was his statement about what had
taken place, if you had tried to pursue self-defense, you actually
-18-

had a concern that the State would bring in the prior assault first
that [Petitioner] had been arrested for assaulting [Victim]?
A

Yes.

(Id. at 17-18, 38-39.)
Thereafter, the post-conviction motion court concluded Petitioner's trial attorney was not
ineffective, and denied Petitioner's amended post-conviction motion. Post-Conviction Mot. Ct.
J., Legal File, Resp't Ex. 7, at 76-82.
In his post-conviction appeal, Petitioner pursued two points challenging the effectiveness
of his trial attorney's assistance. Pet'r Br., Resp't Ex.8, Pet'r Substitute Br., Resp't Ex. 9. First,
Petitioner argued that his trial attorney provided ineffective assistance of counsel and denied
his rights to due process and a fair trial, in violation of the Fifth, Sixth, and Fourteenth
Amendments, by failing to file a motion to dismiss the first-degree murder and armed criminal
action counts on the grounds of prosecutorial vindictiveness. Id. at 16-17, 20-21. For his
second point on appeal, Petitioner urged his trial attorney provided ineffective assistance of
counsel and violated his rights to due process, to present a defense, and to a fair trial, as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments, by failing to elicit from Petitioner
on direct examination testimony about Victim's specific acts of violence toward Petitioner
before the incident resulting in the charges. Id. at 18-19, 33.
The Missouri Court of Appeals for the Eastern District affirmed the motion court's
decision in a summary order, supplemented by a memorandum sent only to the parties setting
forth the reasons for the decision. Per Curiam Order and Mem. Supplementing Order
Affirming J. Pursuant to Rule 84.16(b), dated Feb. 21, 2012, Resp't Ex. 11. In its opinion, the
-19-

state appellate court found:
I.

BACKGROUND

In February 2008, the State initially indicted [Petitioner] for seconddegree felony murder and armed criminal action in the death of [Victim] in
January 2008. [Petitioner] told his attorney he was not interested in accepting a
plea agreement but wanted to go to trial. He instructed his attorney to prepare
a self-defense strategy for trial. In December 2008, the State filed a superseding
indictment charging [Petitioner] with first-degree murder and armed criminal
action.
A jury convicted [Petitioner] . . . of first-degree murder and armed
criminal action. The court sentenced [Petitioner] as a prior and persistent
offender to life imprisonment without possibility of parole on the first-degree
murder charge and twelve years on the armed criminal action charge, the
sentences to run concurrently. This Court affirmed his convictions. State v.
Simmons, 308 S.W.3d 273 (Mo. [Ct.] App. . . . 2010). [Petitioner] filed a motion
for post-conviction relief pursuant to Rule 29.15, which was denied after an
evidentiary hearing. [Petitioner] now appeals.
II. DISCUSSION
*

*

*

B. Ineffective Assistance of Counsel Claims
In order to establish a claim of ineffective assistance of counsel,
[Petitioner] must show that: (1) his counsel's performance failed to conform to
the degree of skill, care, and diligence of a reasonably competent attorney; and
(2) as a result, he was prejudiced. Strickland v. Washington, 466 U.S. 668, 687
(1984); Barnes v. State, 334 S.W.3d 717, 721 (Mo. [Ct.] App. . . . 2011). To
prove prejudice, [Petitioner] must show there is a reasonable probability that, but
for his counsel's poor performance, the result of the proceeding would have been
different. Barnes, 334 S.W.3d at 721. "To establish deficient performance,
[Petitioner] must overcome the strong presumption that counsel acted
professionally and that all decisions were based on sound trial strategy." Id.
Trial strategy cannot serve as the basis for a claim of ineffective assistance of
counsel. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). Decisions
made after considering the law, facts, and alternative strategies generally will not
be disturbed by our Court on review. Id.

-20-

1. Motion to Dismiss Indictment
In his first point on appeal, [Petitioner] claims the motion court erred in
denying his request for post-conviction relief because trial counsel was
ineffective for failing to file a motion to dismiss the first-degree murder and
armed criminal action charges on the grounds of prosecutorial vindictiveness.
Specifically, he argues the prosecutor's decision to file the superseding
indictment charging [Petitioner] with first-degree murder "was motivated by a
desire to punish [Petitioner] for choosing to go to trial." Furthermore,
[Petitioner] contends that his trial counsel's failure to file the motion to dismiss
the first-degree murder charge[] resulted in [Petitioner's] conviction of a greater
offense.
A defendant must show that the prosecutor's actual purpose in bringing
enhanced charges was to penalize the defendant for exercising a constitutional
right. State v. Sapien, 337 S.W.3d 72, 79 (Mo. [Ct.] App. . . . 2011). Wellestablished law has generally refused to apply the presumption in a pretrial
setting. Id. "As a general proposition, a presumption of prosecutorial
vindictiveness does not apply where enhanced charges are filed against a
defendant in connection with pretrial plea negotiations." Id.
Here, at the evidentiary hearing, [Petitioner's] trial counsel testified the
State initially indicted [Petitioner] on second-degree murder and armed criminal
action. Counsel testified she recommended to [Petitioner] that he allow her to
negotiate a plea agreement for second-degree murder consistent with the State's
offer. However, [Petitioner] told her he wanted to go to trial. Subsequently, the
prosecuting attorney advised [Petitioner's] counsel that, based on thorough
review of the evidence, the State was planning to file a superseding indictment
charging [Petitioner] with first-degree rather than second-degree murder along
with the armed criminal action. Counsel testified [Petitioner] still wanted to take
his case to trial.

[Petitioner's] counsel testified she did not consider filing a motion to
dismiss the superseding indictment for first-degree murder on the basis of
prosecutorial vindictiveness because she could not have "filed such a motion in
good faith." Counsel was not ineffective for failing to file a motion to dismiss
for prosecutorial vindictiveness if the motion would have been without merit and
not in good faith. Cf. Tisius v. State, 183 S.W.3d 207, 217 (Mo. banc 2006).
Moreover, [Petitioner] did not demonstrate the prosecutor's actual purpose in
filing the superseded indictment was to penalize him for choosing to go to trial
-21-

rather than accepting a plea agreement. The motion court did not err in not
finding [Petitioner's] counsel was ineffective for failing to file a motion to
dismiss. [Petitioner's] first point is denied.
2. Victim's Alleged Prior Acts of Aggression
In his second point on appeal, [Petitioner] claims the motion court erred
in denying his request for post-conviction relief because trial counsel was
ineffective for failing to elicit [Petitioner's] testimony on direct examination that
[Victim] committed specific acts of violence against him. [Petitioner] argues the
testimony would have been relevant, material and admissible on the issue of selfdefense, and there is a reasonable probability the outcome of the trial would have
been different.
At the evidentiary hearing, trial counsel testified that [Petitioner] wanted
her to present a defense of self-defense as a trial strategy. Counsel testified she
thought [Petitioner's] best defense "would be to show evidence of a sudden
passion to get a lesser charge." Additionally, counsel testified she attempted to
explain to [Petitioner] that after his trial testimony that he hit [Victim] with his
cane and knocked the knife out of her hand, the threat was over and a claim of
self-defense would not be feasible. Under cross-examination, [Petitioner's] trial
counsel admitted she was concerned if she tried to pursue a self-defense theory,
the State would present evidence of his prior assault on [Victim], as well as a
pending charge for first-degree assault in St. Louis County. Trial counsel's
decision not to elicit testimony from [Petitioner] concerning [Victim]'s aggressive
acts toward him was reasonable trial strategy, and therefore, cannot serve as the
basis for a claim of ineffective assistance of counsel. Forrest, 290 S.W.3d at 708.
Thus, the motion court did not clearly err in denying [Petitioner's] motion for
post-conviction relief. Point two on appeal is denied.

-22-

Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated Feb. 21, 2012, Resp't
Ex. 11, at 2-6. The Missouri Court of Appeals issued its mandate on March 15, 2012. See
March 15, 2012 entry on docket sheet for Simmons v. State, No. ED96289 (Mo. App. filed
Feb.

10,

2011)

(docket

sheet

available

at

https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited June 1, 2015). That
docket sheet reveals that Petitioner did not seek review by a higher court, See docket sheet for
Simmons v. State, No. ED96289 (Mo. App. filed Feb. 10, 2011) (docket sheet available at
https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited June 1, 2015).
Petitioner subsequently filed his pending federal habeas petition, in which he sets forth
four grounds for relief. Petitioner contends that the pre-trial court erred in not allowing
Petitioner's attorney to withdraw or in not granting a continuance shortly before the start of trial
(ground one); that his trial attorney provided ineffective assistance of counsel by failing to call
as a witness at trial Lindsay, the unidentified tenants of apartments 30 and 31, and "the
maintenance man" for the Greenwood apartments (ground two); that the trial court erred in
allowing the jury to see Petitioner in the courtroom in handcuffs (ground three); and that
Petitioner's trial attorney provided ineffective assistance of counsel in failing to elicit testimony
from Petitioner that Victim had assaulted him in 2007 and that Petitioner was under the
influence of several prescription medications and alcohol at the time of the January 2008
incident (ground four).
Respondent counters that the first and third grounds are procedurally barred because
Petitioner did not pursue them in his direct appeal; the second ground as to Lindsay is

-23-

procedurally barred because Petitioner did not pursue it in his post-conviction appeal and is
barred as to any other witness because Petitioner did not present the state courts with his claim
about those witnesses; and the fourth ground lacks merit as to the prior assault and is
procedurally barred as to the medications and alcohol at the time of the January 2008 incident,
because he did not present that claim to the state courts.
Discussion
Procedural Default. In his first ground, Petitioner contends that the pre-trial court erred
in not allowing Petitioner's attorney to withdraw or in not granting a continuance shortly before
trial. For his third ground, Petitioner asserts that the trial court erred in allowing the jury to see
Petitioner in the courtroom in handcuffs. Respondent counters that these grounds for relief
based on lower court error are procedurally barred and may not be considered on their merits
because they were not pursued in Petitioner's direct appeal.
In his second ground, Petitioner argues that his trial attorney provided ineffective
assistance of counsel by failing to call Lindsay and three other witnesses from the Greenwood
apartments. Respondent urges that this claim is barred from consideration on its merits as to
Lindsay because Petitioner did not pursue it in his post-conviction appeal and as to the other
individuals because Petitioner cannot expand the factual and legal theory for a claim in a
federal habeas proceeding beyond the factual and legal theory presented to the state courts.
In ground four, Petitioner asserts that his trial attorney provided ineffective assistance
of counsel by failing to elicit testimony from Petitioner regarding Victim's 2007 assaults on
Petitioner ("prior assault testimony") and by failing to elicit Petitioner's testimony regarding his

-24-

use of prescription medications and alcohol around the time of the January 2008 incident
("substance use testimony"). Respondent argues that this claim is procedurally barred only to
the extent it focuses on a failure to elicit Petitioner's substance use testimony, because Petitioner
did not present that part of the claim to the state courts.
To avoid procedurally defaulting on a claim, a petitioner seeking habeas review must
have fairly presented the substance of the claim to the state courts, thereby affording the state
courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim.
Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and
citations omitted) (quoting, in part, Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam));
accord Baldwin v. Reese, 541 U.S. 27, 29 (2004). "A claim has been fairly presented when
a petitioner has properly raised the 'same factual grounds and legal theories' in the state courts
which he is attempting to raise in his federal habeas petition." Wemark, 322 F.3d at 1021
(quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). A petitioner must also
exhaust his state remedies, by giving "the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State's established appellate review
process." Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011) (internal quotation marks omitted)
(quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Claims that have not been
exhausted and fairly presented to the state courts are procedurally defaulted and may not be
considered on their merits by a federal habeas court. See Wemark, 322 F.3d at 1022-23.
To the extent Respondent challenges Petitioner's claims as procedurally barred,
Petitioner has not properly pursued the claims in the state courts. Missouri state law requires

-25-

the raising of constitutional claims at the first available opportunity in the state court
proceedings. See In re T. E., 35 S.W.3d 497, 504 (Mo. Ct. App. 2001). Alleged errors in a
lower court proceeding, including constitutional claims of trial error, must be raised on direct
appeal; for "[p]ost-conviction motions cannot be used as a substitute for direct appeal or to
obtain a second appellate review." State v. Clark, 859 S.W.2d 782, 789 (Mo. Ct. App. 1993);
accord State v. Twenter, 818 S.W.2d 628, 636 (Mo. 1991) (en banc) (a post-conviction
proceeding "is not a substitute for direct appeal, and matters that properly should have been
raised by direct appeal may not be litigated in a post-conviction proceeding"). "If the
allegations of [lower court] error are constitutional violations, they are not cognizable [in a
post-conviction proceeding] unless exceptional circumstances are shown which justify not
raising the constitutional grounds on direct appeal." Clark, 859 S.W.2d at 789; accord Amrine
v. State, 785 S.W.2d 531, 536 (Mo. 1990) (en banc). Such exceptional circumstances include
when, before the direct appeal, the petitioner lacked knowledge, due to a state actor's conduct,
of the information needed to make the claim. See, e.g., Frazier v. State, 431 S.W.3d 486, 49293 (Mo. Ct. App. 2014) (allowing consideration during a post-conviction proceeding of a
contention that a prosecutor violated Brady v. Maryland, 363 U.S. 83 (1963), by failing to
disclose that the victim, and only eyewitness, had three misdemeanor convictions and two
pending criminal cases).
Here, Petitioner failed to pursue on direct appeal any claim that the pre-trial court's
denial of his attorney's request to withdraw or denial of the request for continuance was error
and any claim regarding alleged error by the trial court in allowing the jury to see Petitioner in

-26-

the courtroom in handcuffs, the claims in grounds one and three. These alleged errors occurred
in pre-trial and trial court proceedings when Petitioner or his attorney was present. Petitioner
clearly was or should have been aware of the alleged lower court errors before and at the time
of his direct appeal. The mere fact that Petitioner's direct appeal attorney failed to raise those
alleged errors in Petitioner's direct appeal does not constitute an exceptional circumstance
justifying the raising of those errors in subsequent state court proceedings; otherwise, every
alleged lower court error omitted by an attorney from a direct appeal could be presented in
subsequent state court proceedings and the "exceptional circumstance" requirement would be
eliminated for such omitted errors. Therefore, grounds one and three are procedurally
defaulted.
Petitioner's remaining grounds, grounds two and four, are claims that his trial attorney
provided ineffective assistance. The earliest point and exclusive procedure for raising a claim
that an attorney provided ineffective assistance of counsel is in a post-conviction motion; a
motion court's decision on such motions are subject to appeal; and successive post-conviction
motions are not permitted. Mo. S. Ct. Rule 29.15(a), 29.15(k), and 29.15(l); Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006). Claims that should have been but were not
presented in a post-conviction motion or on appeal from a denial of a post-conviction motion
are procedurally defaulted and may not be considered in a federal habeas proceeding. See
Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006) (finding claims not presented in an
amended Rule 29.15 post-conviction motion or on appeal from the denial of that motion are
procedurally defaulted).

-27-

Petitioner presented in his amended post-conviction motion the claim in ground two that
his trial attorney provided ineffective assistance by failing to investigate or call Lindsay as a
witness. The post-conviction motion court denied that claim on its merits. Petitioner did not
pursue that ineffective assistance of trial counsel claim in his post-conviction appeal.
Petitioner presented in his pro se post-conviction motion the claim in ground two that
his trial attorney provided ineffective assistance by failing to investigate or call two tenants and
the "maintenance man" from the Greenwood apartments. That claim was not, however,
pursued as part of either Petitioner's amended post-conviction motion or Petitioner's postconviction appeal.
The claim in ground four that Petitioner's trial attorney was ineffective in failing to elicit
testimony from Petitioner that he was under the influence of several medications and alcohol
at the time of the January 2008 incident was not presented in Petitioner's pro se and amended
post-conviction motions, and was not pursued in Petitioner's post-conviction appeal. To the
extent Petitioner asserted in his pro se post-conviction motion error by the trial court when it
precluded the identification of medications Petitioner had taken at the time of the January 2008
incident, the legal basis of that alleged trial court error is not the same as the legal basis for
Petitioner's present ineffective assistance of counsel claim that the trial attorney failed to elicit
such testimony.
Under the circumstances, Petitioner did not fairly and properly present to the state courts
all of ground two and the part of ground four based on Petitioner's trial attorney's failure to
elicit testimony about Petitioner's substance use; Petitioner does not now have a remedy for

-28-

presentation of such claims to the state courts; and those grounds for relief are procedurally
defaulted. See id.; Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997) (finding one of the
petitioner's ineffective assistance of counsel claims defaulted because it was not presented at
any stage of his post-conviction proceedings and another such claim defaulted because the
petitioner "failed to raise it in his post-conviction appeal").
Therefore, all of grounds one, two, and three, as well as that portion of ground four that
focuses on the alleged ineffective assistance of Petitioner's trial attorney in failing to elicit
Petitioner's substance use testimony, are procedurally defaulted.
Absent a showing of cause and prejudice or a miscarriage of justice, a federal habeas
court may not reach the merits of a claim procedurally defaulted due to a petitioner's failure to
follow applicable state procedural rules in raising the claim in state court. Sawyer v. Whitley,
505 U.S. 333, 338-39 (1992); accord Skillicorn v. Luebbers, 475 F.3d 965, 976-77 (8th Cir.
2007) ("Unless a habeas petitioner shows cause and prejudice or that he is actually innocent of
the charges, a [federal habeas] court may not reach the merits of procedurally defaulted claims
in which the petitioner failed to follow applicable state procedural rules in raising the claims").
"Cause for a procedural default exists where 'something external to the petitioner, something
that cannot fairly be attributed to him[,] .. . 'impeded [his] efforts to comply with the State's
procedural rule.'" Maples v. Thomas, 132 S. Ct. 912, 922 (2012) (alterations in original)
(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). There is no exhaustive catalog of
the objective impediments "and the precise contours of the cause requirement have not been
clearly defined." Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir. 1999).

-29-

In his reply, Petitioner seems to argue that his failure to raise the lower court's alleged
errors on direct appeal results from his direct appeal attorney's failure to present those grounds,
and, based on that attorney's conduct, his failure to pursue those grounds should be excused
under Martinez v. Ryan, 132 S. Ct. 1309 (2012). Petitioner also contends that his postconviction appeal attorney's failure to present the procedurally defaulted ineffective assistance
of trial counsel claims in his post-conviction appeal should excuse that default.
While Martinez concluded an attorney's conduct in a state court proceeding may, under
limited circumstances, support a finding of "cause" for a petitioner's failure to present the state
courts with an ineffective assistance of trial counsel claim pursued in a federal habeas
proceeding, such as the procedurally defaulted claims in grounds two and four, that case is
inapplicable here because it did not address as "cause" the conduct of an attorney other than a
post-conviction motion attorney, whose conduct is not challenged by Petitioner as a basis for
cause. Therefore, any action of or omission by Petitioner's attorneys for his direct appeal or for
his post-conviction appeal may not constitute the cause needed to allow this Court to consider
the merits of Petitioner's procedurally defaulted claims. See Dansby v. Hobbs, 766 F.3d 809,
833-34 (8th Cir. 2014) (declining to extend Martinez to allegedly ineffective assistance by direct
appeal counsel), petition for cert. filed, ____ U.S.L.W. ____ (U.S. Mar. 5, 2015) (Nos. 14-8782
and 14A786); Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (not applying
Martinez to allegedly ineffective assistance by post-conviction appeal counsel). Additionally,
Martinez did not address an attorney's failure to raise a claim other than an ineffective
assistance of trial counsel claim; so, that case does not support a finding of cause with respect

-30-

to grounds one and three, which are based on alleged lower court errors rather than on the
allegedly ineffective assistance of Petitioner's trial attorney. Dansby, 766 F.3d at 833-34
(declining to extend Martinez to claims of trial error).
Because no cause has been established, it is unnecessary to consider whether Petitioner
has demonstrated prejudice. Abdullah v. Groose, 75 F.3d 408, 413 (8th Cir. 1996) (en banc).
Under the circumstances, no cause and prejudice has been established to permit consideration
of the merits of the procedurally defaulted claims in grounds one through four.
The merits of Petitioner's defaulted claims may be reached, despite the absence of a
showing of cause and prejudice for his procedural default, if he establishes that a failure to
consider the claims' merits will result in a fundamental miscarriage of justice. That exception
to a claim's procedural bar "requires a habeas petitioner to present new evidence that
affirmatively demonstrates that he is innocent of the crime for which he was convicted." Abdi
v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). Petitioner must show not only new evidence, but
"that 'it is more likely than not that no reasonable [fact-finder] would have convicted him in
light of th[at] new evidence.'" Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)); accord House v. Bell, 547 U.S. 518, 536-39 (2006)
(Schlup standard applies to determine whether defaulted claims in a first federal habeas petition
should be considered based on actual innocence). Evidence is "new" for purposes of this test
"if it was 'not available at trial and could not have been discovered earlier through the exercise
of due diligence.'" Osborne, 411 F.3d at 920 (quoting Amrine v. Bowersox, 238 F.3d 1023,
1029 (8th Cir. 2001)). "'Without any new evidence of innocence, even the existence of a

-31-

concededly meritorious constitutional violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.'"
Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup, 513 U.S. at 316).
Petitioner has not submitted any new evidence of his actual innocence so as to permit
this Court to consider the merits of Petitioner's defaulted claims.
Under the circumstances, grounds one through three and the substance use portion of
ground four are procedurally barred due to Petitioner's procedural default and failure to
demonstrate either cause and prejudice or a fundamental miscarriage of justice to support
consideration of the merits of those procedurally barred claims. Therefore, the undersigned will
deny those claims without further consideration of their merits.
The Court will proceed to consider the merits of the remaining claim, the portion of
ground four focusing on Petitioner's trial attorney's allegedly ineffective assistance of counsel
in failing to elicit testimony from Petitioner about Victim's 2007 assaults against him.
Standard of Review - Federal Habeas under 28 U.S.C. § 2254. "In the habeas setting,
a federal court is bound by the [Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA")] to exercise only limited and deferential review of underlying state court
decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a
federal court may not grant relief to a state prisoner unless the state court's adjudication of a
claim "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
"was based on an unreasonable determination of the facts in light of the evidence presented in

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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 Supreme] Court on a question
of law or . . . decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000) ("Taylor"). If the state
court's decision is not "contrary to" clearly established law, then the standard of
"unreasonableness" applies and is "meant to be difficult to meet, and 'even a strong case for
relief does not mean the state court's contrary conclusion was unreasonable.'" Williams v.
Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 102
(2011)). A state court decision is 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." Taylor, 529 U.S. at 407-08; see also id. at 413. "The unreasonable
application inquiry is an objective one." de la Garza v. Fabian, 574 F.3d 998, 1001 (8th Cir.
2009).
In reviewing state court proceedings to ascertain whether they are contrary to or involve
an unreasonable application of clearly established federal law, this Court "is limited to the
record that was before the state court that adjudicated the claim on the merits." Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). Additionally, this Court's review is limited to
consideration of the United States Supreme Court precedents at the time the state court issues
its decision on the merits. Greene v. Fisher, 132 S. Ct. 38 (2011) (relying on Cullen, supra);
accord Losh v. Fabian, 592 F.3d 820, 823 (8th Cir. 2010) ("[o]nly rulings in [United States]

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Supreme Court decisions issued before the state court acts are considered clearly established
federal law, for a state court does not act contrary to or unreasonably apply clearly established
federal law if there is no controlling [United States] Supreme Court holding on the point"
(citations omitted)). The state court does not need to cite to Supreme Court cases, "'so long as
neither the reasoning nor the result of the state-court decision contradicts them.'" Revels v.
Sanders, 519 F.3d 734, 739 (8th Cir. 2008)) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam)).
A state court decision involves an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings "only if it is shown that the state court's
presumptively correct factual findings do not enjoy support in the record." Ryan v. Clarke,
387 F.3d 785, 790 (8th Cir. 2004) (internal quotation marks omitted) (quoting Jones v.
Luebbers, 359 F.3d 1005, 1011-12 (8th Cir. 2004)). Importantly, "a determination of a factual
issue made by a State court shall be presumed to be correct" unless rebutted by the petitioner
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The deference owed by a federal
habeas court to a state court's findings of fact includes deference to state court credibility
determinations, Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc), and to "[a] state
court's findings of fact made in the course of deciding" an ineffective assistance of counsel
claim, Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004). Moreover, the presumption of
correctness of findings of fact applies to the factual determinations made by a state court at
either the trial or appellate levels. Smulls, 535 F.3d at 864-65. Importantly, the presumption
of correctness applies to a state court's explicit findings as well as to its implicit findings.

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Grass v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014).
For the remaining claim, the claim that this federal habeas Court may consider on its
merits, Petitioner asserts that his trial attorney provided ineffective assistance of counsel by
failing to elicit from Petitioner testimony that Victim assaulted him in 2007 (part of ground
four). Respondent counters that Petitioner is not entitled to federal habeas relief on this claim
because the Missouri Court of Appeals' decision denying this claim on its merits during
Petitioner's post-conviction appeal is not an incorrect or unreasonable application of
Strickland, supra.
In its rejection of this claim in Petitioner's post-conviction appeal, the Missouri Court
of Appeals concluded that Petitioner's trial attorney's decision not to elicit such testimony was
reasonable trial strategy. The state appellate court noted the trial attorney testified that her
position was that Petitioner's "best defense" was to establish "sudden passion to get a lesser
charge"; she had explained to Petitioner that, after he testified that he hit Victim with his cane
and knocked the knife out of her hand, "the threat was over and a claim of self-defense would
not be feasible"; and the attorney was "concerned if she tried to pursue a self-defense theory,
the State would present evidence of [Petitioner's] prior assault on Victim, as well as a pending
charge for first-degree assault in St. Louis County."
Standard of Review - Federal Habeas Claim that Trial Attorney Provided Ineffective
Assistance of Counsel. An accused's Sixth Amendment right to the assistance of counsel is
a right to the effective assistance of counsel. Marcrum v. Luebbers, 509 F.3d 489, 502 (8th
Cir. 2007) (citing Kimmelman v. Morrison, 477 U.S. 365, 377 (1986)). In Strickland, supra,

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the Supreme Court established a two-part test for determining whether or not an attorney
provided effective assistance of counsel.

The petitioner must establish both deficient

performance, i.e., that "counsel's representation fell below an objective standard of
reasonableness," and prejudice, i.e., that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Strickland, 466
U.S. at 687-88, 694. Importantly, to prevail on an ineffective assistance of counsel claim in a
§ 2254 habeas case, Petitioner
must do more than show that he would have satisfied Strickland's test if his claim
were being analyzed in the first instance, because under [28 U.S.C.] §
2254(d)(1), it is not enough to convince a federal habeas court that, in its
independent judgment, the state-court decision applied Strickland incorrectly.
Rather, he 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. 685, 698-99 (2002) (one citation omitted); Underdahl v. Carlson, 381
F.3d 740, 742 (8th Cir. 2004).
For the performance prong of an ineffective assistance of counsel claim, a petitioner
must demonstrate that "counsel's performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a reasonably competent attorney."
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) ("Armstrong") (citing Strickland,
466 U.S. at 687-89). "Only reasonable competence, the sort expected of the 'ordinary fallible
lawyer,' is demanded by the Sixth Amendment." White v. Helling, 194 F.3d 937, 941 (8th Cir.
1999) (quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir. 1992)). The court is highly
deferential in analyzing counsel's conduct and "'indulg[es] a strong presumption that counsel's
conduct falls within the wide range of reasonable professional judgment.'" Armstrong, 534
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F.3d at 863 (quoting Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006)).
To establish prejudice, there must be a showing of "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694; Armstrong v. Kemna, 590 F.3d 592, 595-96 (8th Cir. 2010)
("Kemna") (quoting McCauley-Bey v. Delo, 97 F.3d 1104, 1105 (8th Cir. 1996)). "'A
reasonable probability is [a probability] sufficient to undermine confidence in the outcome.'"
Kemna, 590 F.3d at 596 (quoting McCauley-Bey, 97 F.3d at 1105); accord Carroll v. Schriro,
243 F.3d 1097, 1100 (8th Cir. 2001) (quoting Strickland, 466 U.S. at 694). The petitioner bears
the burden of showing such a reasonable probability, Lawrence v. Armontrout, 961 F.2d 113,
115 (8th Cir. 1992); and, in determining whether or not there was prejudice, the federal habeas
court must consider the totality of the evidence, Kemna, 590 F.3d at 596.
The question of prejudice from counsel's performance need not be reached if the
performance was not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir. 1998).
Conversely, the question of counsel's allegedly deficient performance need not be reached if
a petitioner has failed to show prejudice. See Strickland, 466 U.S. at 697; Williams v. Locke,
403 F.3d 1022, 1025 (8th Cir. 2005).
The Missouri Court of Appeals concluded that, under the circumstances, it was
reasonable trial strategy not to pursue a defense that would permit inquiry about Victim's prior
assaults, and therefore, Petitioner's trial attorney did not provide ineffective assistance by
failing to elicit such testimony. Having carefully considered the record and applicable legal
principles, that decision is not an unreasonable or incorrect application of clearly established

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federal law. Moreover, the state court's factual findings on which that conclusion is based are
supported by the available record, and Petitioner has not shown by clear and convincing
evidence that the factual findings are incorrect.
CONCLUSION
The Court will deny Petitioner's federal habeas petition because grounds one through
three, as well as the substance use portion of ground four, are procedurally barred and may not
be considered on their merits; and the prior assaults portion of ground four is without merit.
Accordingly, after careful consideration,
IT IS HEREBY ORDERED that Jay Cassady, Warden of the JCCC where Petitioner
is incarcerated, is SUBSTITUTED for the originally named Respondent.
IT IS FURTHER ORDERED that the attachment to Petitioner's Petition [Doc. 1-1],
as well as Respondent's exhibits 2, 3, and 4, be placed and maintained under seal.
IT IS FURTHER ORDERED that the Petitioner's petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED.
IT IS FINALLY ORDERED that no certificate of appealability shall issue. 28
U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 17th day of June, 2015.

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