Richard v. Steele

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Judge Noce's report and recommendation is adopted and sustained in its entirety. IT IS FURTHER ORDERED that Petitioner Karl A. Richard's Petition for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date.. Signed by District Judge Rodney W. Sippel on 4/21/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KARL A. RICHARD,
Petitioner,
v.
TROY STEELE and,
CHRIS KOSTER1,
Respondent.

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Case No. 4:12 CV 1504 RWS

MEMORANDUM AND ORDER
This matter is before me on Petitioner Karl A. Richard’s= petition for writ of
habeas corpus pursuant to 28 U.S.C. ' 2254. I referred this matter to United States
Magistrate Judge David D. Noce for a report and recommendation on all dispositive
matters pursuant to 28 U.S.C. ' 636(b). Judge Noce filed his recommendation that
Richard’s habeas petition should be denied. Richard has filed objections to Judge
Noce=s report. I have conducted a de novo review of Richard’s claims and have
carefully reviewed the record in this case. Based on that review, I agree with
Judge Noce that Richard’s petition should be denied.

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Chris Koster, the Attorney General for the State of Missouri, is a proper party respondent in this matter because
Petitioner is challenging present and future sentences in this matter. See Rule 2(b), Rules Governing Section 2254
proceedings in the United States District Courts.

Richard was convicted of first degree robbery, attempted first degree
robbery, and two counts of armed criminal action. He was sentenced to three
concurrent terms of imprisonment and one consecutive term of imprisonment for a
total of thirty years in the custody of the Missouri Department of Corrections.2
Richard’s convictions were based on his robbery of a married couple as they were
leaving a wedding reception in a public park between 11:00 p.m. and midnight.
The wife identified Richard as the robber in a photo line up. Both the husband and
the wife identified Richard as the robber in a live line up and at trial.3 Richard’s
defense was based on misidentification by the victims.
Richard asserts one ground for relief in his habeas petition. He alleges that
his trial counsel was constitutionally ineffective for failing to call Richard’s sister as
an alibi witness. Richard claims that his sister would have testified that Richard
arrived at their home at 5:30 p.m. on the evening of the robbery and was there until
the next morning. She would also have testified that Richard had a noticeable gold
tooth that neither of the victims mentioned in describing the perpetrator.
Richard filed a motion for post-conviction review in the state trial court.
That court denied Richard’s request for relief. The Missouri Court of Appeals
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I have read the trial court sentencing transcript which reveals that Richard entered a guilty plea to numerous other
crimes, including multiple counts of purse snatching and multiple counts of car theft, at the time he was sentenced in
this matter. According to the trial judge, Richard was subject to an additional 181 years of imprisonment if he had
proceeded to trial on these additional crimes. Instead, Richard received a total sentence of 15 years for these crimes
and this sentence runs concurrent to the sentence he received for the crimes at issue in this habeas petition.
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In his objections to Judge Noce’s report and recommendation, Richard claims Judge Noce incorrectly stated that
three witnesses identified Richard as the robber. The report does not make that assertion. It states that the two
victims identified Richard three separate times (the wife in a photo line up and the husband and wife in a live line up
and at trial). The report states there were “three identifications” of Richard, not that three witnesses identified him.

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confirmed the decision of the post-conviction court. The appeals court found that
Richard’s trial counsel knew of, subpoenaed, and endorsed Richard’s sister as a
witness. However, Richard’s sister did not testify at the trial.
At Richard’s sentencing hearing, Richard told the trial court that his sister did
not appear at his trial because his case was continued several times and that he was
unable to inform his sister of a quickly rescheduled trial setting. More importantly,
Richard did not assert at the sentencing hearing that his sister would have provided
Richard with an alibi. When the trial judge asked Richard what would be the
subject of Richard’s sister’s testimony, Richard told the trial judge only that he
would have called his sister (and brother) to testify he had a prominent gold tooth
since he was sixteen years old. [Resp. Ex. 3 at 65-72] The first time Richard
asserts that his sister would have provided an alibi is in his post-conviction
proceeding. Richard has not pointed to, nor has my review of the record in this
matter uncovered, any evidence that would support Richard’s claim that his sister
would have provided an alibi. The record does not contain any sworn (or
unsworn) testimony or affidavit from Richard’s sister in support of his claim. The
post-conviction court rejected Richard’s claim his attorney was constitutionally
ineffective for not calling Richard’s sister as a witness because the claim was
“conclusory and without merit.” [Resp. Ex. 9 at 51]
The state court of appeals affirmed the denial of post-conviction relief. One
ground for the court of appeal’s decision was that Richard’s counsel was not
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constitutionally ineffective because Richard was not prejudiced by his sister’s
failure to testify about an alleged alibi. The court held that it was not persuaded
that “the proposed testimony of Movant’s sister would have changed the outcome
of Movant’s trial given the three independent positive identifications provided by
the two witnesses…” [Resp. Ex. 12 at 4]
Richard challenges this ruling by the court of appeals.
Ineffective assistance of counsel
To prevail on a claim alleging ineffective assistance of counsel, a defendant
must satisfy the two-part test of Strickland v. Washington, 466 U.S. 668 (1984).
For a convicted defendant to prove that his counsel was ineffective, the defendant
must first show that the counsel's performance was deficient. Strickland, 466 U.S.
at 687. This requires the defendant to show "that counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Id. A defendant can demonstrate that counsel's performance
was deficient where counsel's performance "'fell below an objective standard of
reasonableness.'" Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting Strickland,
466 U.S. at 688). But "[s]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable." United
States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at
690). And "[t]here is a 'strong presumption that counsel's conduct falls within the
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wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466
U.S. at 689). If the defendant fails to show that his counsel was deficient, the court
need not address the second prong of the Strickland test. Brown v. United States,
311 F.3d 875, 878 (8th Cir. 2002).
Second, a defendant must demonstrate that the deficient performance was "so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687. "The defendant 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 confidence in the outcome." Id. at 694.
The Eighth Circuit has described the Strickland test as follows: the questions
a court must ask are "[w]hether counsel's performance was in fact deficient and, if
so, whether the defendant was prejudiced by the inadequate representation. If we
can answer 'no' to either question, then we need not address the other part of the
test." Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). When
evaluating counsel's performance, the court "must indulge in a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Considered objectively, counsel's
performance is gauged by "whether it was reasonable 'under prevailing professional
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norms' and 'considering all the circumstances.'" Fields, 201 F.3d at 1027 (quoting
Strickland, 466 U.S. at 688). "[W]e avoid making judgments based on hindsight."
Id. A reviewing court's "scrutiny of counsel's performance must be highly
deferential." Strickland, 466 U.S. at 689.
A federal district court’s power to review state court criminal decisions in a
federal habeas corpus proceeding is limited. Harrington v. Richter, 562 U.S. 86,
92 (2011)(“Under 28 U.S.C. § 2254(d), the availability of federal habeas relief is
limited with respect to claims previously “adjudicated on the merits” in state-court
proceedings.”). “As a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 102. A[A] determination of a factual issue
by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing
evidence.@ 28 U.S.C. ' 2254(e)(1).
Richard asserts that the post-conviction court of appeals’ decision was “based
upon an unreasonable determination of the facts in light of the evidence presented
…” and that he is entitles to habeas relief under 28 U.S.C. § 2254(d)(2).4 [Doc # 1,

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Title 28 U.S.C. ' 2254(d) provides: “An application for a writ of habeas corpus on behalf of a
person in custody in custody pursuant to the judgment of a State court shall not be granted with
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Pet. At 7-8]
Nothing in the record indicates why Richard’s sister was not called as a
witness apart from Richard’s assertion at his sentencing, and subsequently, that the
resetting of his trial was too quick to get hold of his sister to let her know of the
new trial setting. There is nothing in the record indicating whether or not
Richard’s counsel sought additional time from the trial court to contact this witness.
In other words, there is nothing in the record to support a claim that Richard’s
counsel’s performance was deficient. Even assuming, however, that Richard’s trial
counsel’s performance was deficient, the state court of appeals found there was no
prejudice to Richard in failing to call Richard’s sister in light of the positive
identifications of Richard by the victims in the case.
That decision is not unreasonable in light of the evidence presented in the
case. As a result, I must defer to the state court of appeals’ ruling and deny
Richard’s request for habeas relief.
Certificate of Appealability
I have considered whether to issue a certificate of appealability in this matter.
To grant a certificate of appealability, I must find a substantial showing of the
denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518,
respect to any claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claimB (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.
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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)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994).
I believe that Richard has not made such a showing on the grounds raised in
his petition. Therefore, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Judge Noce=s report and recommendation
is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Petitioner Karl A. Richard’s Petition for
Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 21st day of April, 2015.

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