Sittner v. Bowersox et al

Filing 27

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Johnny Sittner's petition for writ of habeas corpus 1 14 pursuant to 28 U.S.C. § 2254 is denied. IT IS FURTHER ORDERED that a Certificate of Appealability will not is sue in this action because petitioner has not made a substantial showing of a denial of a constitutional right. A separate Judgment in accordance with this Memorandum and Order is filed herewith. Signed by District Judge Catherine D. Perry on 11/17/2017. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHNNY D. SITTNER,
Petitioner,
vs.
MICHAEL BOWERSOX,
Respondent.

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Case No. 4:12 CV 1156 CDP

MEMORANDUM AND ORDER
Petitioner Johnny Sittner was convicted of statutory rape in the first degree,
statutory sodomy in the first degree, and two counts of incest. The trial court
sentenced Sittner to consecutive life terms for statutory rape and statutory sodomy
and to consecutive terms of four years for the two counts of incest. Sittner is
incarcerated at the South Central Correctional Center in Licking, Missouri.
This matter is before the Court on his amended petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Sittner raises twelve grounds for relief. For
the reasons stated below, Sittner’s request for federal habeas corpus relief will be
denied.
Factual Background
On direct appeal, the Missouri Court of Appeals summarized the evidence
adduced at trial as follows:

On 28-29 April 2009 Sittner was tried before the Honorable Judge
Kenneth Wayne Pratte of charges of first-degree statutory rape, first-degree
sodomy, and two counts of incest. Prior to trial, a licensed clinical social
worker at the Children’s Advocacy Center of East Central Missouri, Dina
Vitoux, performed an extended evaluation of victim S.S. During this
evaluation, S.S. communicated, with considerable detail, the acts Sittner was
alleged to have subjected her to.
Vitoux was called as a witness and the trial court recognized her as a
witness in the field of child sex abuse and forensic counseling. Vitoux
testified to what she and other experts used to determine the accuracy of a
child’s disclosure. She listed four factors, one of which was an unusual
sexual knowledge for their age. Over objection, Vitoux stated that S.S. had
such unusual knowledge. During a bench conference prior to defense
counsel’s cross-examination of Vitoux, defense counsel requested
permission to ask Vitoux questions regarding the other men who had abused
S.S. in order to show S.S. had an alternative source for her unusual sexual
knowledge. The State argued that this evidence was barred by the rape
shield statute, § 419.015. The court considered both arguments and
determined S.S.’s knowledge was not overly emphasized, was not used in
the State’s opening argument, and from that point forward in the trial that
area was “off limits.” Both the State and Defense Counsel complied.
Sittner was convicted by a jury on all of the charges against him.
(Resp’t Ex. 20 at 1-3).
Procedural History
Sittner appealed his conviction and sentence before the Missouri Court of
Appeals, arguing the trial court erred in not allowing Sittner to introduce evidence
that other individuals had sexually abused the victim. Sittner alleged that, because
Dina Vitoux, a licensed clinical social worker, testified about the significance of
unusual sexual knowledge by child sexual abuse victims in assessing the credibility

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of their statements, the State had opened the door to evidence of alternative sources
of sexual knowledge. On September 29, 2009, the Missouri Court of Appeals,
Eastern District affirmed the conviction.
Sittner also filed a pro se motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15. Post-conviction counsel was appointed. In
Sittner’s amended post-conviction motion, he alleged that trial counsel was
ineffective for failing to object to Dina Vitoux’s testimony about the factors used
to evaluate the accuracy of a child victim’s statements. Sittner further alleged trial
counsel was ineffective for not cross-examining Vitoux about the source of S.S.’s
unusual sexual knowledge. The motion court denied Sittner’s claims without an
evidentiary hearing.
Sittner appealed the denial of his motion for post-conviction relief. In his
sole point on appeal, Sittner alleged the motion court erred in denying his claim
that trial counsel was ineffective for not objecting to the testimony by Vitoux. The
Missouri Court of Appeals denied relief in an unpublished opinion dated
November 23, 2010.
On March 18, 2011, Sittner filed his first habeas petition in the Circuit Court
of Texas County, Missouri. The Circuit Court denied this petition. On June 26,
2012, Sittner filed a motion, and subsequently an amended motion, to re-open his
post-conviction case due to abandonment. Sittner’s amended motion alleged his
3

post-conviction case should be re-opened as his first post-conviction counsel failed
to include several grounds for relief in his first amended 29.15 motion. The
motion court found Sittner did not allege a recognized ground for reopening a postconviction case and denied Sittner relief without an evidentiary hearing; Sittner
appealed and the Missouri Court of Appeals affirmed the judgment of the motion
court.
Sittner then filed a second habeas petition in the Circuit Court of Texas
County, Missouri. He asserted five claims of ineffective assistance of counsel. The
Texas County court found Sittner’s claims were defaulted as they had not been
raised in his Rule 29.15 motion. The court then addressed Sittner’s claims ex gratia
and found they were without merit. Sittner also filed a third and fourth habeas
petition in the Missouri Court of Appeals, and the Missouri Supreme Court,
respectively. Both courts summarily denied relief.
Grounds Raised
Sittner filed his original federal habeas petition in this case asserting the
following nine grounds for relief: 1) the trial court violated Sittner’s sixth
amendment right to present defensive evidence by excluding evidence of other
individuals who had abused S.S.; 2) the trial court erred in allowing Dina Vitoux to
testify about S.S.’s credibility; 3) trial counsel was ineffective for failing to
adequately object to Vitoux’s testimony; 4) trial counsel was ineffective for not
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cross-examining Vitoux about the potential for other sources of S.S.’s sexual
knowledge; 5) trial counsel was ineffective for not introducing evidence of S.S.’s
reputation for dishonesty; 6) trial counsel was ineffective for not calling Sittner’s
wife, D.S., to testify about S.S.’s reputation for dishonesty and problems with
discipline; 7) trial counsel was ineffective for not calling J.S. as a witness; 8)
appellate counsel was ineffective for not raising a claim of plain error related to
Vitoux’s testimony about S.S.’s credibility; and 9) appellate counsel was
ineffective for not raising a claim of error related to social worker Jamie Pinson’s
testimony regarding S.S.’s statements.
On August 3, 2015, Sittner filed a motion to amend his petition and a proposed
amended petition. In his amended petition, Sittner renewed the nine grounds set forth in
his original petition and added three new claims. The State contends the additional
grounds for relief alleged in the amended petition are untimely and must be dismissed.
Sittner does not contest the State’s argument and withdraws Grounds 10, 11, and 12.
Sittner also withdraws ground seven. Therefore, I will only consider Grounds 1-6, and 89.
In response to the eight claims that remain, the State claims Ground 2 and
Grounds 4 through 9 are procedurally defaulted and Sittner has failed to show cause to
excuse his default. The State further contends that although Grounds 1 and 3 were
properly exhausted, they must be denied on their merits.

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Standard of Review
Federal habeas relief is available to a state prisoner “only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). See also Williams-Bey v. Trickey, 894 F.2d 314, 317
(8th Cir. 1990).
In order to obtain federal habeas review of a claim raised in a § 2254
petition, the petitioner must have first raised the federal constitutional dimensions
of the claim in State court in accordance with State procedural rules. Duncan v.
Henry, 513 U.S. 364 (1995) (per curiam); Beaulieu v. Minnesota, 583 F.3d 570,
573 (8th Cir. 2009) (quoting Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.
1988)). If the petitioner failed to properly present the claim in State court, and no
adequate non-futile remedy is currently available by which he may bring the claim
in that forum, the claim is deemed procedurally defaulted and cannot be reviewed
by the federal habeas court “unless the [petitioner] can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also
Martinez v. Ryan, 566 U.S. 1, 10-11 (2012).
Where the State court adjudicated a claim on the merits, federal habeas relief
can be granted on the claim only if the State court adjudication “resulted in a
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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,”
28 U.S.C. § 2254(d)(1); or “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)(2). See Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law
must be clearly established at the time petitioner’s State conviction became final,
and the source of doctrine for such law is limited to the United States Supreme
Court. Id. at 380-83.
A State court’s decision is “contrary to” clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of
law or different than the Supreme Court’s conclusion on a set of materially
indistinguishable facts. Id. at 412-13; Carter v. Kemna, 255 F.3d 589, 591 (8th
Cir. 2001). A State court’s decision is an “unreasonable application” of Supreme
Court precedent if it “identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that principle to the facts of
the prisoner’s case.” Williams, 529 U.S. at 413. Merely erroneous or incorrect
application of clearly established federal law does not suffice to support a grant of
habeas relief. Instead, the State court’s application of the law must be objectively
unreasonable. Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011).
Finally, when reviewing whether a State court decision involves an “unreasonable
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determination of the facts” in light of the evidence presented in the State court
proceedings, State court findings of basic, primary, or historical facts are presumed
correct unless the petitioner rebuts the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S. 333, 338-39 (2006);
Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007). Erroneous findings of fact do
not ipso facto ensure the grant of habeas relief, however. Instead, the determination
of these facts must be unreasonable in light of the evidence of record. Collier, 485
F.3d at 423; Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001).
The federal court is “bound by the AEDPA [Antiterrorism and Effective
Death Penalty Act] to exercise only limited and deferential review of underlying
State court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). To
obtain habeas relief from a federal court, the petitioner must show that the
challenged State court ruling “rested on ‘an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.’” Metrish v. Lancaster, 133 S. Ct. 1781, 1786-87 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). This standard is difficult to
meet. Id. at 1786.
Claims Addressed on the Merits
A review of the record shows Sittner to have properly raised the following
claims in State court and that the Missouri Court of Appeals, upon review of the
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merits of the claims, denied relief. I therefore turn to the merits of these claims,
exercising limited and deferential review of the underlying State court decisions as
required by the AEDPA.
A.

Ground 1 - Exclusion of other evidence of sexual abuse.
In Ground 1, Sittner alleges that he “was denied his constitutional right to

present defensive evidence (U.S. Const. Amend. VI) when evidence of other
accusations by the alleged victim was excluded.” (Amend. Pet. at 9). In his
amended petition, Sittner claims that, during his cross-examination of Dina Vitoux,
he sought to present evidence that S.S. accused three other males of sexual abuse.
Because Vitoux had testified that S.S. had unusual sexual knowledge for her age,
Sittner argues the evidence of other allegations of abuse should not have been
excluded because it would have shown an alternate basis of S.S.’s “unusual
knowledge” and “would have impeached the credibility of her accusation of Mr.
Sittner.” (Amend. Pet. at 10). In Sittner’s traverse, he clarifies that the trial court’s
refusal to allow him to cross-examine Vitoux deprived him of his sixth amendment
right to confront witnesses against him.
On direct appeal, Sittner claimed the circuit court abused its discretion in
refusing to allow his trial counsel to present evidence of S.S.’s allegations of abuse
by others in violation of his right to due process. The Missouri Court of Appeals
denied relief on this claim. As stated above in the Factual section of this
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memorandum, the Court of Appeals summarized the relevant evidence adduced at
Sittner’s trial as follows:1
Vitoux testified to what she and other experts used to determine the
accuracy of a child’s disclosure. She listed four factors, one of which was
an unusual sexual knowledge for their age. Over objection, Vitoux stated
that S.S. had such unusual knowledge. During a bench conference prior to
defense counsel’s cross-examination of Vitoux, defense counsel requested
permission to ask Vitoux questions regarding the other men who had abused
S.S. in order to show S.S. had an alternative source for her unusual sexual
knowledge. The State argued that this evidence was barred by the rape
shield statute, § 419.015. The court considered both arguments and
determined S.S.’s knowledge was not overly emphasized, was not used in
the State’s opening argument, and from that point forward in the trial that
area was “off limits.” Both the State and Defense Counsel complied.
(Resp’t Ex. 20 at 2).
The Court of Appeals rejected Sittner’s claim as follows:
The trial court’s decision on the admission or exclusion of evidence is
reviewed for abuse of discretion. State v. Sales, 58 S.W.3d 554, 558 (Mo.
App. W.D. 2001). A trial court has abused its discretion when a ruling is
clearly against the logic of the circumstances before the court and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a
lack of careful consideration. State v. Brown, 939 S.W. 2d 882, 883 (Mo.
Banc 1997). Moreover, an evidentiary ruling will not be overturned absent a
showing of prejudice. State v. Barriner, 111 S.W.3d 396, 401 (Mo. Banc
2003).
If the state does not attempt to use evidence of a victim’s unusual
sexual knowledge to establish Defendant’s guilt, the Defendant is not
constitutionally entitled to present evidence about any past abuse or present
other evidence of that abuse. State v. Sales, 58 S.W.3d 554, 559 (Mo. App.
1

In proceedings pursuant to 28 U.S.C. § 2254, a “state court’s factual findings carry a
presumption of correctness that will be rebutted only by clear and convincing evidence.” Hall v.
Luebbers, 341 F.3d 706, 712 (8th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1); Lomholt, 327 F.3d at
752).

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W.D. 2001). Here, the State did not use evidence of S.S.’s unusual sexual
knowledge to establish Sittner’s guilt, that knowledge merely arose as one of
four factor’s Vitoux used to determine the accuracy of S.S.’s statements.
(Resp’t Ex. 20 at 2-3). The Court of Appeals further stated that, “This case is one
in which no improper emphasis was given to the victim’s unusual sexual
knowledge. . . . Her sexual knowledge was not mentioned in front of the jury any
other time during the course of the two-day trial.” (Resp’t Ex. 20 at 3).
In denying Sittner’s claim, the Court of Appeals concluded that “All relevant
evidence was available to the jury, no rights of the defendant were violated, and
the privacy of the victim was preserved.” Id.
For federal habeas relief, Sittner must establish that the state court
adjudication was contrary to, or involved an unreasonable application of, clearly
established Federal law, or that it resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented. 28
U.S.C. § 2254(d). The sixth amendment guarantees a criminal defendant the right
to “be confronted with witnesses against him[,]” including “the right to conduct
reasonable cross-examination.” Olden v. Kentucky, 488 U.S. 227, 231 (1988).
However, the sixth amendment is not a blanket prohibition against limiting crossexamination of prosecution witnesses. Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). “[T]rial judges retain wide
latitude ... to impose reasonable limits on such cross-examination [i.e., cross11

examination focusing on bias] based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.” Id. Such limitations on a
defendant’s right to introduce evidence are permissible so long as they are not
“arbitrary or disproportionate to the purposes they are designed to serve.” United
States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005); United States v. Pumpkin
Seed, 572 F.3d 552, 560 (8th Cir. 2009).
Here, the trial court did not abuse its discretion in limiting the crossexamination of Vitoux with respect to evidence of S.S.’s allegations of abuse by
others. As noted above, the sixth amendment is not a blanket prohibition against
restricting cross-examination and the trial court had wide latitude to reasonably
limit cross-examination in light of the prohibitions of the rape shield statute.
Moreover, the impact of excluding evidence of alternative sources of the
victim’s unusual sexual knowledge was not disproportionate to the protections
provided by the rape shield statute, including preserving the privacy of the victim.
As noted by the Missouri Court of Appeals, Vitoux’s testimony referring to S.S.’s
unusual sexual knowledge was only mentioned once before the jury, was given no
improper emphasis, and was not utilized to establish Sittner’s guilt. Under these
circumstances, the findings of the state court are not contrary to, or an
unreasonable application of, clearly established federal law. 28 U.S.C. § 2254
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(d)(1). Accordingly, the claim raised in Ground 1 of the petition is denied.
B.

Ground 3 – Ineffective assistance of counsel for failure to object.
In Ground 3, Sittner alleges his trial counsel was ineffective for failing to

adequately object to Vitoux’s testimony about factors that demonstrate the
accuracy of a child victim’s testimony. Sittner argues this testimony constitutes an
impermissible opinion on the credibility of the victim and that counsel was
ineffective for failing to make that objection. Sittner raised this claim in his in his
29.15 post-conviction motion and on appeal from the denial of that motion. The
Missouri Court of Appeals denied relief on the claim.
In its memorandum denying Sittner relief, the Missouri Court of Appeals
summarized Vitoux’s testimony as follows:
Vitoux testified to what she and other experts used to determine the accuracy
of a child’s disclosure. She listed four factors, including the child’s ability
to give accurate sensory details, consistency, emotion, and an unusual sexual
knowledge considering the age of the child…. Vitoux testified that the
victim’s disclosures were consistent, that S.S. provided several sensory
details, and demonstrated unusual sexual knowledge.
(Resp’t Ex. 24 at 2). The Court of Appeals found that Vitoux’s testimony was
admissible because she did not opine as to the credibility of S.S., but limited her
testimony to generalized statements that applied to victims of abuse. The Court
noted because Vitoux did not provide particularized testimony, such as
commenting on whether S.S. was telling the truth, the jurors were left to form their

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own conclusions about the victim’s credibility. Because the court found the
testimony admissible, it reasoned that any objection by Sittner’s trial counsel
would have been without merit and concluded Sittner’s trial counsel was not
ineffective for not objecting to such testimony.
For federal habeas relief, Sittner must establish that the state court
adjudication was contrary to, or involved an unreasonable application of, clearly
established Federal law, or that it resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented. 28
U.S.C. § 2254(d). 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, a petitioner
must show that 1) his counsel’s performance was deficient, and 2) the deficient
performance prejudiced his defense. Id. at 687. In evaluating counsel’s
performance, the basic inquiry is “whether counsel’s assistance was reasonable
considering all the circumstances.” Id. at 688. The petitioner bears a heavy burden
in overcoming “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. To establish prejudice,
the petitioner “must show that 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
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confidence in the outcome.” Id. at 694. Additionally, only claims of
ineffectiveness alleging that counsel’s error deprived the petitioner of a fair trial
are cognizable. Id. at 685-87.
Because I review Sittner’s claims of ineffective assistance of counsel in the
habeas context, I must be careful not to apply the Strickland analysis as if the
claims were being addressed in the first instance. In order to succeed on these
habeas claims under § 2254(d)(1), therefore, it is not enough for Sittner to
convince me that, in my independent judgment, the State court applied Strickland
incorrectly. Rather, Sittner “must show that the [Missouri] Court of Appeals
applied Strickland to the facts of his case in an objectively unreasonable manner.’”
Hoon v. Iowa, 313 F.3d 1058, 1063 (8th Cir. 2002) (quoting Bell v. Cone, 535 U.S.
685, 698-99 (2002)) (internal citation omitted in Hoon). For the reasons set out
below, Sittner has failed to do so.
Here, the Missouri Court of Appeals found any objection by counsel to
Vitoux’s testimony would not have been meritorious because her testimony was
admissible. The Court of Appeals then applied Strickland and concluded Sittner’s
counsel was not ineffective for failing to make a non-meritorious objection. The
State court’s finding is entitled to deference. There is no indication trial counsel’s
actions were not within the range of reasonable professional assistance. Counsel
did not object to the State’s general inquiries as to the factors used by experts, but
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did object to the more particular testimony as to whether S.S. had unusual sexual
knowledge. The appellate court’s decision that trial counsel did not render
ineffective assistance of counsel was not “contrary to” and did not involve “an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). After my review of
the record, I cannot conclude that this decision amounted to an unreasonable
application of the Strickland standard to these facts. Accordingly, the claim raised
in Ground 3 of the instant petition is denied.
Procedurally Defaulted Claims
A petitioner must exhaust his state law remedies before the federal court can
grant relief on the merits of his claims in a habeas petition. 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The federal habeas
court must first examine whether the federal constitutional dimensions of the
petitioner’s claims have been fairly presented to the State court. Smittie v.
Lockhart, 843 F.2d 295, 296 (8th Cir. 1988). See also Boerckel, 526 U.S. at 848;
Flieger v. Delo, 16 F.3d 878, 885 (8th Cir. 1996). To exhaust a claim, the offender
must raise the claim on direct appeal or in state post-conviction proceedings,
including on post-conviction appeal. Flieger, 16 F.3d at 885. When a petitioner
has not properly exhausted state remedies on a claim and the time for doing so has
expired, he has procedurally defaulted that claim. Welch v. Lund, 616 F.3d 756,
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758 (8th Cir. 2010). In this situation, the federal court should not review the claim
unless the petitioner can show “cause and prejudice” excusing that procedural
default. Id. at 760.
In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the United States Supreme
Court recognized that ineffective assistance of post-conviction motion counsel in
an initial-review collateral proceeding could qualify as cause excusing the failure
to raise a substantial claim of ineffective assistance by trial counsel. Id. at 1318-19.
See also Davila v. Davis, 137 S.Ct. 2058, 2065 (2017). By its own plain language,
Martinez does not apply to other alleged failures – whether by initial postconviction counsel, by post-conviction appeal counsel, or by direct appeal counsel.
See Davila, 137 S.Ct. at 2065 (stating that “[o]n its face, Martinez provides no
support for extending its narrow exception to new categories of defaulted claims”).
If initial post-conviction counsel raised a claim in the motion court, ineffective
assistance of post-conviction appeal counsel is not cause permitting that claim to
be raised in federal court. Coleman, 501 U.S. at 752-57 (1990); Arnold v. Dormire,
675 F.3d 1082, 1087 (8th Cir. 2012). Furthermore, the Supreme Court, in Davila
v. Davis, 137 S.Ct. 2058 (2017), recently declined to extend Martinez to allow
federal courts to hear a “procedurally defaulted, claim of ineffective assistance of
appellate counsel when a prisoner’s state post-conviction counsel provides
ineffective assistance by failing to raise that claim” Id. at 2065. See also Dansby v.
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Hobbs, 766 F.3d 809, 833 (8th Cir. 2014).
Here, Ground 2, and Grounds 4-9 are procedurally defaulted. I will address
the claims individually to determine whether Sittner has shown “cause and
prejudice” to excuse his procedural default.2
A.

Ground 2 - Trial court error in allowing Vitoux’s testimony.
In Ground 2 of his petition, Sittner claims he was denied due process when

Vitoux was permitted to testify about the factors interviewers use to determine the
accuracy of a child victim’s disclosure. Because Sittner failed to raise this claim
on direct appeal, it is procedurally defaulted and cannot be reviewed by this Court
unless Sittner shows cause for his default and prejudice resulting from the
underlying constitutional violations, or that a fundamental miscarriage of justice
would occur if I were not to address the merits of the claims. Coleman, 501 U.S. at
750.
Sittner argues that direct appeal counsel’s failure to raise his due process
claim on appeal constitutes cause to excuse his procedural default. While
ineffective assistance of direct appeal counsel may constitute cause for procedural
2

As an additional cause for the default of claims 2, 5, 6, 8, and 9, Sittner asserts he was
incompetent to assist post-conviction counsel because he was taking an unspecified psychiatric
medication. The State contends this allegation is vague and inadequate. In his traverse, Sittner
does not respond to the State’s argument, but instead focuses on his allegations of ineffective
assistance of post-conviction counsel as cause for his procedural default. I find Sittner’s cursory
and vague allegation of incompetency, set forth in a single sentence, insufficient. He fails to
plead particularized facts which would allow this Court to ascertain from the petition whether his
allegation merits further review. See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990).

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default, Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir. 1996) (citing Murray v.
Carrier, 477 U.S. 478, 492 (1986), Sittner must have first presented this Sixth
Amendment argument to the State court as an independent claim in order for this
federal habeas court to review the claim as cause for default. Edwards v.
Carpenter, 529 U.S. 446, 450-53 (2000); Taylor v. Bowersox, 329 F.3d 963, 971
(8th Cir. 2003) (citing Murray, 477 U.S. at 489); Charron v. Gammon, 69 F.3d
851, 858 (8th Cir. 1995). Sittner did not do so here. To the extent Sittner argues
that the procedural default of his ineffectiveness assistance of appellate counsel
claim is itself excused by ineffective assistance of post-conviction counsel for
failing to properly raise this claim in his post-conviction motion, inadequate
assistance of counsel at initial-review collateral proceedings cannot establish cause
for procedural default of a claim of ineffective assistance of counsel on appeal.
Davila, 137 S.Ct. at 2065; Dansby, 766 F.3d at 833. (“We therefore decline to
extend Martinez to claims alleging ineffective assistance of counsel on direct
appeal.”). Given Sittner’s failure to present his claim of ineffective assistance of
direct appeal counsel to the State court, I am precluded from addressing this
alleged counsel error as cause to excuse Sittner’s procedural default of the claim
now raised in Ground 2. Williams v. Kemna, 311 F.3d 895, 897 (8th Cir. 2002).
Sittner has thus failed to establish cause to excuse his procedural default,
thus obviating the need for me to determine whether prejudice has been shown.
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Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007). In addition, because Sittner
has failed to present new evidence of actual innocence, he has failed to show that a
constitutional violation has likely resulted in the conviction of one who is actually
innocent. Abdi v. Hatch, 450 F.3d 334 338 (8th Cir. 2006); Weeks v. Bowersox,
119 F.3d 1342, 1352-53 (8th Cir. 1997). Therefore, my refusal to entertain
Sittner’s procedurally defaulted claims will not result in a fundamental miscarriage
of justice. Accordingly, the claim raised in Ground 2 is procedurally barred from
federal habeas review and will be denied.
B.

Ground 4 – Ineffective assistance of trial counsel for failure to cross-

examine Vitoux.
In Ground 4 of the petition, Sittner alleges he was denied effective assistance
of counsel when trial counsel failed to adequately cross-examine Vitoux.
Specifically, Sittner contends trial counsel should have cross-examined Vitoux to
establish that S.S.’s unusual sexual knowledge and ability to recount sensory
details could have been obtained from someone other than Sittner. Sittner raised
this claim in his amended motion for post-conviction relief under Rule 29.15.
Sittner, however, failed to raise the claim in his post-conviction appeal. As such,
this claim is procedurally defaulted.
Sittner asserts that ineffective assistance of post-conviction appellate
counsel caused his procedural default. However, while Martinez provides that
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inadequate assistance of counsel at initial post-conviction proceedings may
establish cause for a petitioner’s procedural default of a claim of ineffective
assistance of trial counsel, ineffective assistance of post-conviction appellate
counsel is not cause permitting that claim to be raised in federal court. Arnold, 675
F.3d at 1087.
Therefore, Sittner’s claim of ineffective assistance of post-conviction
appellate counsel does not excuse the default of his claims of ineffective assistance
of trial counsel. With no showing of cause, I need not determine whether prejudice
has been shown. Cagle, 474 F.3d at 1099. Nor has Sittner shown that a
fundamental miscarriage of justice would occur if I were not to address the merits
of his claims. Accordingly, the claim raised in Ground 4 is procedurally barred
from federal habeas review and will be denied.
C.

Grounds 5 and 6 – Ineffective assistance of trial counsel.
In his fifth ground for relief, Sittner contends that trial counsel was

ineffective for failing to elicit testimony concerning S.S.’s bad reputation for
veracity and propensity to lie. In his sixth ground, Sittner contends that trial
counsel was ineffective for failing to call Sittner’s wife, D.S., as a witness. Sittner
failed to raise these claims in his Rule 29.15 post-conviction motion.3 Because

3

Sittner notes that he raised Ground 5 in his second, third, and fourth State habeas motions in the
Circuit Court of Texas County, Missouri, the Southern District Court of Appeals, and the

21

these claims are procedurally defaulted, I may review the merits of the claims only
if Sittner shows cause for the default and actual prejudice resulting from the
alleged constitutional violation, or that a fundamental miscarriage of justice would
occur if I were not to address the claims. Coleman, 501 U.S. at 750. Sittner
asserts that under Martinez v. Ryan, 566 U.S. 1 (2012), the ineffective assistance of
his post-conviction counsel constitutes cause for the procedural default of his
ineffective assistance of trial counsel claims asserted in Grounds 5 and 6.
In Martinez, the Supreme Court held that “a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.” 132 S. Ct. at 1320. As such, under Martinez,
a petitioner may claim ineffective assistance of post-conviction counsel to establish
“cause” for procedural default of a claim of ineffective assistance of trial counsel.
To establish such cause, the petitioner must show that post-conviction counsel’s
Missouri Supreme Court, respectively. The Texas County court determined the claim was
procedurally barred, but addressed it ex gratia and found the claim was meritless. After the
Texas County petition was denied, Sittner again presented his claim in Ground 5 to the Southern
District Court of Appeals, and the Missouri Supreme Court. Both courts summarily denied
habeas relief. Sittner argues his claim in Ground 5 is not procedurally defaulted because he
presented it to the State courts in his petitions for habeas relief. However, a state court’s
consideration of merits of claim “as a matter of grace” does not erase fact of procedural default
from petitioner’s failure to comply with State’s procedural rule. Pollard v. Delo, 28 F.3d 887,
889 (8th Cir. 1994). Moreover, the Eighth Circuit has generally presumed that the summary
denial of a Missouri state habeas petition represents a finding by the Missouri court that the
inmate did not overcome the procedural bar to raising the claim in state court. Preston v. Delo,
100 F.3d 596, 599-601 (8th Cir. 1996). Accordingly, I find Sittner’s claim in Ground 5
procedurally defaulted.

22

assistance was ineffective under the standards of Strickland v. Washington, 466
U.S. 668 (1984), and further demonstrate that his underlying claim of ineffective
assistance of trial counsel is a “substantial” one, that is, that the claim has some
merit. Id. at 1318-19. If the underlying claim of ineffective assistance of trial
counsel is unsubstantial or non-meritorious, petitioner cannot establish that postconviction counsel was ineffective and thus cannot show cause for default of the
underlying claim. Id. at 1319. Likewise, if post-conviction counsel did not
perform below constitutional standards, no cause is shown for default. Id.
Sittner’s underlying claim of ineffective assistance of counsel in Ground 5 is
not substantial. In Ground 5, as noted above, Sittner claims he was denied
effective assistance of trial counsel when trial counsel failed to elicit testimony
from three witnesses concerning S.S.’s bad reputation for veracity and propensity
to lie. Sittner states that R.S. (S.S.’s sister), Sandra Horwitz and Terry Kalhorn all
testified at trial and trial counsel was unable, “through lack of legal knowledge to
elicit testimony from them that S.S’s reputation for truth and veracity was bad, and
that she frequently lied.” (ECF No. 14 at 19). Sittner asserts trial counsel was
unable to lay a proper evidentiary foundation.
The record reflects that Sittner’s trial counsel attempted to ask foundational
questions from Horwitz and Kalhorn to show the witnesses were familiar with S.S.,
her family and friends. When trial counsel asked Horwitz which family members
23

Horwitz knew, the trial court sustained the State’s relevancy objection. Trial
counsel continued to ask questions, but after an off-the-record sidebar, did not
further question Horwitz. With regard to Kalhorn, when trial counsel questioned
her how frequently she saw S.S., the trial court sustained the State’s objection that
the testimony was not relevant. During a sidebar, the court noted trial counsel was
missing a step as it sustained the State’s objection, but did not identify that step.
Trial counsel then attempted to explain to the court how she would further question
Kalhorn to elicit testimony about S.S.’s reputation, but the trial court declined to
permit the questions. Trial counsel stated to the court that she had another
character witness, but the trial court indicated it would refuse to allow counsel to
lay a foundation with that witness. When R.S. testified, trial counsel did not ask
R.S. about S.S’s reputation for veracity.
Here, Sittner claims trial counsel deficiently failed to elicit reputation
testimony from Horwitz and Kalhorn, but fails to plead with specificity how his
trial counsel’s questioning was deficient. See Adams v. Armontrout, 897 F.2d 332,
334 (8th Cir. 1990) (pleading must include particularized facts permitting court to
determine from face of petition whether it merits further review). Given the strong
presumption that trial counsel’s conduct falls within the wide range of reasonable
professional assistance, in order to establish ineffective assistance, Sittner must do
more than show trial counsel did not succeed, despite her attempts, in eliciting
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reputation testimony. See Strickland, 466 U.S at 689-91.
Sittner also fails to show, in light of the trial court’s rulings, that trial
counsel’s failure to question other witnesses about S.S.’s reputation for veracity
was unreasonable. Despite trial counsel’s attempts to lay a foundation with
Horwitz and Kalhorn, the trial court effectively excluded all character evidence and
indicated it would not allow proposed evidence from another character witness.
Accordingly, it cannot be said that Sittner’s underlying claim of ineffective
assistance of trial counsel was so substantial that post-conviction counsel was
ineffective for failing to raise the claim during post-conviction proceedings.
Therefore, Sittner cannot show cause to excuse his procedural default and his claim
set forth in Ground 5 is denied.
As in Ground 5, Sittner’s underlying claim of ineffective assistance of trial
counsel in Ground 6 is not substantial. In Ground 6, Sittner alleges trial counsel
was ineffective for failing to call Sittner’s wife, D.S. as a witness. Sittner claims
D.S. was willing and available to testify to the following: that she was unaware of
the abuse, that S.S had serious difficulties with Sittner’s disciplinary actions, and
that D.S. approved of Sittner’s discipline.4
4

Sittner also alleges D.S. would have testified that S.S. had a reputation for untruthfulness.
However, as just noted in my discussion of Ground 5, the record reflects trial counsel sought to
call another character witness. If that witness was D.S, trial counsel cannot be deemed
incompetent for not calling a witness when the trial court indicated it would not allow the
proposed evidence.

25

Under Strickland, an inmate asserting ineffective assistance of trial counsel
must prove both that the trial counsel was incompetent and that he suffered
prejudice from such incompetence. 466 U.S. at 687. Here, Sittner fails to
establish the prejudice prong as the testimony he alleges D.S. would have provided
was cumulative to other evidence presented at trial.
With regard to Sittner’s claim that D.S. was unaware of the abuse, S.S.
testified that the abuse largely occurred while D.S. was away from home or
sleeping. S.S. also testified that she had not told anyone about the abuse until she
told the social worker at her school. Thus, the evidence at trial already indicated
D.S. was unaware of the abuse.
Trial counsel would also have presented cumulative evidence had D.S.
testified that S.S. had problems with Sittner’s disciplinary actions. At trial, S.S.,
R.S. (S.S.’s sister), and Sittner provided detailed testimony regarding the
disciplinary situation in the household. S.S. testified to the frequency and severity
of her punishments. S.S. also conceded she and Sittner frequently fought over her
chores and that she was angry at Sittner for punishing her. R.S. provided
testimony corroborating S.S.’s account of Sittner’s punishments. Sittner testified
about the manner in which he punished S.S. and acknowledged they frequently
argued. Thus, any proposed testimony by D.S. describing S.S’s difficulties with
Sittner’s discipline would have been cumulative to that provided by three other
26

witnesses.
Sittner also maintains trial counsel should have called D.S. as a witness as
she would have provided testimony that she approved of Sittner’s discipline.
However, again, this testimony would have been cumulative as R.S. testified that
D.S. agreed with Sittner on discipline. Moreover, trial counsel could have
reasonably determined not to elicit testimony that D.S. approved of Sittner’s
discipline as as it would have undermined counsel’s theory of the case ‒ that
conflicts over chores and excessive punishments were the reason the jury should
find that S.S falsely accused Sittner.
Accordingly, trial counsel’s failure to call D.S. to testify at trial does not rise
to the level of ineffective assistance as D.S.’s testimony would have been
cumulative to other evidence adduced at trial. The failure to present cumulative
evidence does not result in prejudice sufficient to give rise to a claim of ineffective
assistance of counsel. Winfield v. Roper, 460 F.3d 1026, 1034 (8th Cir. 2006).
Under Martinez, Sittner cannot establish that his underlying claim of ineffective
assistance of counsel is substantial. Accordingly, Sittner cannot show cause to
excuse his procedural default and his claim set forth in Ground 5 is denied.
D.

Grounds 8 and 9 – Ineffective assistance of appellate counsel.
In Grounds 8 and 9 of his amended habeas petition, Sittner asserts he

received ineffective assistance of counsel on direct appeal for counsel’s failure to
27

raise issues of trial error on appeal. Sittner did not raise these claims of ineffective
appellate assistance in his amended post-conviction motion.
A claim must be presented at each step of the judicial process in State court
in order to avoid procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.
1994). Under Missouri law, Missouri Supreme Court Rule 29.15 provides the
exclusive means by which a petitioner may assert claims of ineffective assistance
of direct appeal counsel. Sittner’s failure to raise these claims of ineffective
assistance of appellate counsel in his Rule 29.15 motion results in this Court being
procedurally barred from reviewing the claims in this federal habeas proceeding
absent a showing of cause and prejudice, or that a fundamental miscarriage of
justice would result if the Court were not to review the claims.
Sittner asserts that ineffective assistance of post-conviction counsel caused
his default. However, while Martinez provides that inadequate assistance of
counsel at initial post-conviction proceedings may establish cause for a petitioner’s
procedural default of a claim of ineffective assistance of trial counsel, the Supreme
Court recently declined to extend the Martinez exception to defaulted claims of
ineffective assistance of appellate counsel. Davila, 137 S.Ct. at 2063. Therefore,
Sittner’s claim of ineffective assistance of post-conviction counsel does not excuse
the default of his claims of ineffective assistance of appellate counsel. With no
showing of cause, I need not determine whether prejudice has been shown. Cagle,
28

474 F.3d at 1099. Nor has Sittner shown that a fundamental miscarriage of justice
would occur if I were not to address the merits of his claims.
Accordingly, the claims raised in Grounds 8 and 9 of Sittner’s petition are
procedurally barred from federal habeas review and will be denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order denying habeas relief in a § 2254 proceeding unless a circuit
justice or judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A).
To grant such a certificate, the justice or judge must find a substantial showing of
the denial of a federal constitutional right. 28 U.S.C. § 2253(c)(2); see Tiedeman
v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565,
569 (8th Cir. 1997). I find that reasonable jurists could not differ on any of
Sittner’s claims, so I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that Johnny Sittner’s petition for writ of
habeas corpus [1] [14] pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue in this action because petitioner has not made a substantial showing of a
29

denial of a constitutional right.
A separate Judgment in accordance with this Memorandum and Order is
filed herewith.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 17th day of November, 2017.

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