Gibbs v. State of Missouri

Filing 15

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Willie Lee Gibbs. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. 2254 be denied and be dismissed w ith prejudice by separate judgment entered this date.IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 9/2/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIE LEE GIBBS,

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Petitioner,
vs.
CHRIS KOSTER,
Respondent.

Case No. 4:12CV1714 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Willie Lee Gibbs for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
I. Procedural History
Gibbs is presently incarcerated at Butner Federal Correctional Institution in Butner, North
Carolina. His federal sentence is set to expire this year; however, he is subject to a detainer by the
State of Missouri for the convictions related to his instant petition for writ of habeas corpus.
Thus, Chris Koster, the Missouri Attorney General, is the proper Respondent.
On August 28, 2007, the State charged Gibbs in the City of St. Louis with forcible rape,
two counts of armed criminal action, and first degree robbery, for actions that occurred on October
30, 2000. (Respt’s Ex. 2 at 16-18.) At the time he was indicted, Gibbs was serving a fifteen-year
sentence in federal prison in Indiana. Gibbs was brought to Missouri under the Interstate
Agreement on Detainers Act for his arraignment and his trial. Id. at 20-28. On August 5, 2009, a
jury found Gibbs guilty on all counts. (Respt’s Ex. 1 at 422.) Gibbs was sentenced as a prior and
persistent offender and a persistent sexual offender to sixty years imprisonment, to run
concurrently with an unrelated twenty-seven-year sentence he had received in 2004. (Respt’s Ex.
2 at 81-85.)
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Gibbs raised two claims on direct appeal. (Respt’s Ex. 3 at 12-13.) In his first claim,
Gibbs argued that the trial court erred in finding him to be a persistent sexual offender. Id. at 12.
Gibbs next argued that the trial court erred in overruling his objection to the state’s line of
questioning in voir dire regarding the panel’s ability to convict based on DNA evidence alone. Id.
at 13. On June 22, 2010, the Missouri Court of Appeals for the Eastern District affirmed Gibbs’s
convictions. (Respt’s Ex. 4.)
Gibbs filed a pro se motion for post-conviction relief under Rule 29.15. (Respt’s Ex. 6 at
3-8.) After the appointment of counsel, Gibbs filed an amended post-conviction relief motion and
request for an evidentiary hearing. Id. at 14-38. In the amended motion, Gibbs raised the
following ineffective assistance of counsel claims: (1) trial counsel failed to argue or amend
Gibbs’s motion to dismiss filed on May 11, 2009; and (2) trial counsel failed to object to improper
personalization, request the jury to disregard the state’s closing argument comment, and request a
mistrial. Id. at 16-18. The motion court denied Gibbs’s claims and his request for an evidentiary
hearing. Id. at 39-45.
On appeal from the denial of post-conviction relief, Gibbs first argued that trial counsel
was ineffective for failing to argue or amend his motion to dismiss filed on May 11, 2009,
considering trial counsel continued Gibbs’s case without his permission and admitted that she did
not understand the Interstate Detainers Act. (Respt’s Ex. 7 at 16.) Gibbs next argued that he
received ineffective assistance of counsel in that trial counsel failed to object to improper
personalization, request the jury to disregard the state’s closing argument comment, and request a
mistrial. Id. at 26. The Missouri Court of Appeals for the Eastern District affirmed the decision
of the motion court. (Respt’s Ex. 8.)
Gibbs timely filed the instant Petition on September 20, 2012. (Doc. 1.) Gibbs raises
four grounds for relief: (1) the trial court erred in finding him to be a prior and persistent sexual
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offender because the offense used by the state to support the contention occurred after the instant
offense occurred; (2) the trial court erred in overruling his objection to the state’s line of
questioning when the state improperly sought to get a commitment from the jury to convict him
based on DNA evidence alone; and (3) he received ineffective assistance of counsel because trial
counsel did not argue or amend the motion to dismiss under the Interstate Detainers Act.
On November 27, 2012, Respondent filed a Response to Order to Show Cause, in which
he argues that all of Gibbs’s claims fail on their merits. (Doc. 7.)
II. Facts1
Early in the morning of October 30, 2000, S.P., asleep in her bed with her daughter, woke
to find a man standing over her bed. The man pulled S.P.’s hair and threatened to shoot her
daughter if she screamed or moved. S.P. followed the man into her daughter’s room where he
took her jewelry and forced her to lay down on the carpet and have sex with him. The man
ejaculated on S.P.’s legs and attempted to wipe it off. Before leaving, the man took more jewelry
from S.P. and threatened to harm her if she told anyone. S.P. changed clothes and woke her
daughter. S.P. went to a friend’s house and called the police. Because there were no lights on in
the house at the time of the attack, S.P. was not able to give a description of the man. She only
knew that the man was black, wore a sweatshirt with a hood, was between 5’7 and 5’9, weighed
150-160 pounds and smelled of alcohol.
She then went to a hospital where a rape kit was performed. Sperm was found on the
vaginal smear. Authorities later seized a piece of carpet from the daughter’s bedroom. This
carpeting, along with S.P.’s underwear, tested positive for seminal fluid. DNA testing was
conducted on all three samples and entered into the Combined DNA Indexing System (“CODIS”).

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The Court’s summary of the facts is taken from the decision of the Missouri Court of Appeals on
direct appeal. (Respt’s Ex. 4 at 2-3.)
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In 2007, CODIS found a match between the samples and Defendant’s DNA. The police
compared the DNA in the samples from S.P. with DNA extracted from a buccal swab taken from
Defendant. The seminal fluid from the carpet and underwear along with semen from the rape kit
matched the Defendant’s DNA.
Based on the DNA evidence, Gibbs was charged with forcible rape, robbery and two
counts of armed criminal action for the attack on S.P. in 2000.
Trial began on August 3, 2009. The state asked the venire panel if they would require
witness identification before coming to a verdict. Defense counsel objected that the state was
attempting to obtain a commitment from the venirepersons. The trial court overruled the
objection.
The trial court found Gibbs to be a prior and persistent offender based on two guilty pleas
for felony burglary and felony robbery. The trial court also found Gibbs to be a persistent sexual
offender based on an October 7, 2004 conviction for attempted forcible rape.
III. Standard of Review
A federal court=s power to grant a writ of habeas corpus is governed by 28 U.S.C. '
2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. ' 2254(d).
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The Supreme Court construed § 2254(d) in Williams v. Taylor, 529 U.S. 362 (2000).
With respect to the Acontrary to@ language, a majority of the Court held that a state court decision
is contrary to clearly established federal law Aif the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law@ or if the state court Adecides a case
differently than [the] Court has on a set of materially indistinguishable facts.@ Id. at 405. Under
the Aunreasonable application@ prong of ' 2254(d)(1), a writ may issue if Athe state court identifies
the correct governing legal rule from [the Supreme Court=s] cases but unreasonably applies [the
principle] to the facts of the particular state prisoner=s case.@ Id. Thus, Aa federal habeas court
making the >unreasonable application= inquiry should ask whether the state court=s application of
clearly established federal law was objectively unreasonable.@ Id. at 410. Although the Court
failed to specifically define Aobjectively unreasonable,@ it observed that Aan unreasonable
application of federal law is different from an incorrect application of federal law.@ Id.
IV. Petitioner=s Claims
The undersigned will discuss Gibbs’s three grounds for relief in turn.
1.

Ground One
In his first ground for relief, Gibbs argues that the trial court erred in finding him to be a

prior and persistent sexual offender because the offense used by the State to support the
contention occurred after the instant offense occurred. Gibbs’s claim rests on the proper
interpretation of a Missouri statute, RSMo ' 558.018.
Section 558.018 defines a persistent sexual offender as follows:
1.
The court shall sentence a person who has pleaded guilty to or has been
found guilty of the felony of forcible rape, statutory rape in the first degree,
forcible sodomy, statutory sodomy in the first degree or an attempt to commit any
of the crimes designated in this subsection to an extended term of imprisonment if
it finds the defendant is a persistent sexual offender.

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2.
A “persistent sexual offender” is one who has previously pleaded guilty to
or has been found guilty of the felony of forcible rape, rape, statutory rape in the
first degree, forcible sodomy, sodomy, statutory sodomy in the first degree or an
attempt to commit any of the crimes designated in this subsection.
Respondent first argues that Gibbs’s claim is not cognizable. The undersigned agrees.
Federal habeas relief is available only if the petitioner is in custody in violation of the
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). “It is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Gibbs does not allege a violation of
his constitutional rights or of federal law. Rather, Gibbs claims that the state court erred in
applying state law.
Gibbs’s claim is also meritless. Gibbs raised this claim in his direct appeal. The
Missouri Court of Appeals found plain error did not occur. (Respt’s Ex. 4 at 6.) The court
noted that § 558.018 does not contain a provision requiring that the previous offense must have
been committed prior to the date of the instant offense. Id. at 5. Instead, § 558.018 merely
requires that the defendant “previously pleaded guilty to or has been found guilty” of the
enumerated sexual offenses. Id. Gibbs was found guilty of attempted forcible rape in October
of 2004, prior to being found guilty of the instant charge of forcible rape in August of 2009.
Gibbs therefore qualified as a persistent sexual offender under the plain language of the statute.
The decision of the state appellate court is not contrary to or an unreasonable application
of clearly established federal law and is not based on an unreasonable determination of the facts in
light of the evidence presented in state court. Accordingly, Gibbs’s first ground for relief will be
denied.

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2.

Ground Two
In his second ground for relief, Gibbs argues that the trial court erred in overruling his

objection during voir dire because the state sought to get a commitment from the jury to convict
based on DNA evidence alone. A review of the record shows that the prosecutor asked the
venire panel a hypothetical question that was designed to determine whether the panel members
would require the victim to be able to identify the defendant in order to reach a verdict, or if the
presentation of DNA evidence would be sufficient for them to come to a decision.
The following occurred during voir dire:
[Prosecutor]: In this case the State is relying on DNA to prove identity. Okay. I
anticipate the victim cannot identify the person who attacked her. We are relying on
DNA. Is there anyone here in the jury box that would require the victim to be able to
identify the defendant before coming to a verdict?
[Defense Counsel]:
commitment.

Objection.

Your Honor, that’s improper.

Intending to get a

THE COURT: That will be overruled.
[Prosecutor]: And I’m going to try to go through this briefly, but because this is so
important, I want to go through this one by one. Mr. Foster, are you okay with that DNA
evidence?
VENIREMAN FOSTER: Yes.
[Prosecutor]: Ms. Thomas?
VENIREMAN THOMAS: Now you said that the DNA and her not identifying him?
[Prosecutor]: Right. Would you require she be the one to identify him? Or can you
rely on other evidence such as DNA to come to a decision? Would you require her to be
the one to do it?
VENIREMAN THOMAS: Well, it all depends how it happened. I mean to me—I
mean, did she—was she covered, was her face covered, did she—
[Prosecutor]: Right. In my scenario, and I know it’s kind of hard because you don’t
have a lot of facts in front of you.
VENIREMAN THOMAS: Right.
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[Prosecutor]: It’s kind of hard because I’m asking you to do something, you don’t know
what the facts are yet. But obviously sometimes people can disguise themselves, or time
has passed. But what I’m asking you is are you going to require her to be able to identify
him before coming to a verdict? In other words, before knowing anything, say you know
what, I’ve already heard she can’t do it, nope, that’s not good enough, she has to be able to
do it?
VENIREMAN THOMAS: Like I say, once again, I think I’d have to hear the whole
argument, hear what was going on, for me to say yes, I think she should, I mean, you
know, identify him. Because for me to sit here and say okay, yeah, go on the DNA, and I
don’t know exactly—
[Prosecutor]: And I’m not asking you what your verdict would be just based on DNA.
I’m asking you if you would absolutely require her to be the one to identify him. If you
can’t answer that now, that’s okay. That’s why I’m asking. In other words, are you
gonna go back there—
THE COURT: [The prosecutor] is not asking for a commitment. You haven’t heard
any evidence. She’s just asking you right now if you’re going to require—now that
you’ve been told that perhaps this victim cannot identify her assailant, if you’ve made a
decision up-front that that’s it.
[Prosecutor]: Does that help or not? If you’re still not sure—
VENIREMAN THOMAS: I’m not sure.
[Defense counsel]: Your Honor—I’m sorry, [prosecutor]—may I just get a continuing
objection to this whole line of questioning?
THE COURT: You may.
(Respt’s Ex. 1 at 125-27.)
In his direct appeal, Gibbs argued that the trial court erred in overruling his objection to
the state’s line of questioning in voir dire regarding the panel’s ability to convict based on DNA
evidence alone, and that the court’s ruling violated his constitutional rights to due process and a
fair trial. The Missouri Court of Appeals held as follows, in relevant part:
The voir dire in this case is most similar to the voir dire in State v. Dunn. There, the
prosecutor asked if DNA evidence, alone, could never be enough to prove the state’s case.
7 S.W.3d at 432. The court found that the question tested the jurors’ reservations about
DNA evidence and, specifically, did not ask whether the jurors would convict only on the
basis of DNA tests. Id. (emphasis in original). Here, the State was trying to determine
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if the potential jurors had preconceived prejudices that victim identification was essential.
The State specifically stated that it was not asking what their verdict would be based on
DNA alone. Therefore, we find no abuse of discretion and no prejudice in the trial court
overruling Defendant’s objection that the State was attempting to extract a commitment
from the venirepersons.
(Respt’s Ex. 4 at 10.)
Voir dire is generally left to the sound discretion of the trial court. See Morgan v. Illinois,
504 U.S. 719, 729 (1992). The federal courts permit the use of hypothetical questions during
voir dire as long as the hypothetical questions do not commit the jury to a decision in advance.
Hobbs v. Lockhart, 791 F.2d 125, 129 (8th Cir. 1986). In Hobbs, the jurors were asked questions
regarding whether they could convict Hobbs based on circumstantial evidence, but they were not
asked to make a commitment to do so. Id.
The decision of the Missouri Court of Appeals in the instant case was not contrary to or an
unreasonable application of clearly established federal law. The prosecutor specifically stated
that she was “not asking [the venire panel] what your verdict would be just based on DNA.”
(Respt’s Ex. 1 at 127.) The court then explained to the jury panel that the prosecutor “is not
asking for a commitment,” and that, rather, the state was seeking to determine if anyone on the
panel had “made a decision up-front.” Id. The prosecutor’s line of questioning sought to
determine if prospective jurors had preconceived views that victim identification was necessary.
It in no way rendered the jury impartial. Thus, Gibbs’s constitutional rights were not violated by
the trial court’s overruling of his objection during voir dire.
Accordingly, Gibbs’s second ground for relief will be denied.
3.

Ground Three
In his third and final ground for relief, Gibbs argues that he received ineffective assistance

of counsel because trial counsel did not argue or amend his Motion to Dismiss under the Interstate
Detainers Act.
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The Interstate Agreement on Detainers Act (“IAD”) “applies to prisoners incarcerated in
another jurisdiction who have untried Missouri charges and are subject to detainers originating in
Missouri.” State v. Vinson, 182 S.W.3d 709, 711 (Mo. Ct. App. 2006). “The IAD ‘is designed
to encourage the expeditious and orderly disposition of charges outstanding against a prisoner and
determination of the proper status of any and all detainers based on untried indictments,
informations, or complaints.’” Lancaster v. Stubblefield, 985 S.W.2d 854, 855 (Mo. Ct. App.
1998) (quoting United States v. Mauro, 436 U.S. 340, 343 (1978)). Articles III and IV of the
IAD provide specific time periods within which disposition of charges must take place,
depending on the circumstances. See RSMo ' 217.490, Articles III, IV.
Gibbs filed a pro se “Motion to Dismiss for Violation of Statutory and Constitutional
Right to Speedy Trial” on May 11, 2009. (Respt’s Ex. 2 at 29-31.) The court docketed Gibbs’s
Motion as a Request for Speedy Trial. Id. at 6. On August 3, 2009, Gibbs’s counsel filed a
Motion to Dismiss for Violation of Interstate Agreement on Detainers Act, arguing that the state
violated Gibbs’s right to be brought to trial within 180 days pursuant to the IAD. Id. at 41-44.
The trial court denied Gibbs’s Motion to Dismiss, finding that any delay had been contributed to
by multiple requests or continuances by Gibbs and that Gibbs was not prejudiced by any delay.
Id. at 8.
In his post-conviction relief motion, Gibbs argued that trial counsel was ineffective for
failing to argue or amend his Motion to Dismiss filed on May 11, 2009, considering trial counsel
continued his case without his permission and admitted that she did not understand the IAD.
(Respt’s Ex. 6 at 16.) He stated that the Circuit Attorney’s office filed a letter about lodging a
detainer against him on March 19, 2008; and he therefore expected to be tried within 180 days of
the detainer, or by September 2008. Id. Gibbs contended that, had counsel filed an amended
motion to dismiss shortly after her entry of appearance on June 26, 2008 rather than continue the
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case without his permission, the trial court would have found that it did not have jurisdiction to
hear the case after December 23, 2008. Id. The motion court denied Gibbs’s claim, holding
that Gibbs did not allege the continuances sought by defense counsel were not reasonable, and the
court could not assume a motion to dismiss would have been granted. Id. at 42. The court also
noted that the time limit for bringing Gibbs to trial is not jurisdictional and may be waived. Id.
Gibbs raised the same claim on appeal from the denial of post-conviction relief. The
Missouri Court of Appeals for the Eastern District held as follows:
The applicable IAD provision is Article IV, addressing the time limit following a
request for transfer by a state, which the State made in this case. Article IV states that the
trial should commence within 120 days of the prisoner’s arrival. [Gibbs] does not allege
his arrival date in his motion, nor is it contained in the record. In any event, the first
continuance occurred on the first hearing date in the case, July 24, 2008, 43 days after
[Gibbs] was served with a warrant in Missouri.[2] [Gibbs] does not allege facts regarding
the reasonableness of this continuance in his motion, nor does he allege that he or his
counsel were not present during the court’s ruling on this continuance. See Article IV,
Section 3. Thus [Gibbs]’s motion did not allege facts entitling him to relief under Article
IV, and the motion court did not clearly err in denying his motion without a hearing in this
respect.
[Gibbs]’s motion alleges only these additional facts: (1) his trial counsel
obtained numerous continuances without his permission, and (2) his trial counsel admitted
she did not understand the IAD. In determining whether the first entitled [Gibbs] to
relief, we note that the time limits contained in the IAD are not jurisdictional and may be
waived. See Sams v. State, 980 S.W.2d 294, 297 (Mo. banc 1998); Sackman v. State,
277 S.W.3d 304, 307-08 (Mo. App. E.D. 2009). The United States Supreme Court has
held that in certain contexts waiver of the IAD time limits by defense counsel is sufficient
without requiring direct waiver by the defendant. Hill, 528 U.S. at 115. The Court
explained that a decision to “agree[] to a specified delay in trial,” in order for defense to
prepare, is one that “only counsel is in a position to assess” and that counsel is permitted to
make without the defendant’s permission. Id.
Such was the case here. [Gibbs] has not alleged that his trial counsel was in fact
prepared for trial, or even that his counsel’s requests for continuances were unreasonable.
He states only that she was ineffective for seeking continuances without his permission,
which under these circumstances, was permissible for her to do in order to prepare. See
Hill, 528 U.S. at 115. See also Sams, 980 S.W.2d at 296. [Gibbs] has not shown that a
reasonably competent attorney would not have requested or agreed to the continuances

2

While it is possible [Gibbs] arrived in Missouri before the date he was served with a warrant, it is
not possible based on the record that [Gibbs] arrived more than 120 days prior to the first trial
court continuance on July 24, 2008. [Footnote in original]
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here, nor has he shown a probability that the result would have been different absent his
counsel’s agreements to continue the case. See Sams, 980 S.W.2d at 296.
Further, [Gibbs]’s allegation that his trial counsel was ineffective because she was
admittedly unfamiliar with the particulars of the IAD does not change our analysis. Trial
counsel’s unfamiliarity with IAD only amounts to ineffectiveness when it produces
unreasonable conduct. See Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)
(movant must show “counsel’s representation fell below an objective standard of
reasonableness”). Her lack of knowledge regarding the IAD time limits alone does not
make her requests for continuances themselves unreasonable. See Sams, 980 S.W.2d at
297 (finding defense counsel’s continuance not unreasonable regardless of whether
counsel knew defendant had filed request for speedy trial under IAD Article III, triggering
time limit).
[Gibbs]’s factual allegations that his trial counsel’s performance was deficient are
refuted by the record, and he raised no other allegations in his motion that entitled him to
relief. The motion court did not clearly err in denying [Gibbs]’s motion without an
evidentiary hearing. Point denied.
(Respt’s Ex. 8 at 7-8.)
In order to state a claim of ineffective assistance of trial counsel, a petitioner must meet
the Strickland standard: Gibbs must demonstrate that his counsel’s performance was deficient and
that he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient representation means counsel’s conduct fell below the conduct of a reasonably
competent attorney. Strickland, 466 U.S. at 687. To establish prejudice, a petitioner must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Federal habeas review of a Strickland claim is highly
deferential, because “[t]he question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether the determination was
unreasonable - a substantially higher threshold.” Knowles v. Mirzayance, 129 S.Ct. 1411, 1420
(2009) (internal quotations and citations omitted).
The determination of the Missouri Court of Appeals is supported by facts and does not
contravene or unreasonably apply clearly established federal law. Gibbs has not demonstrated
that defense counsel’s motions for continuances were unreasonable. Counsel was permitted to
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request additional time to prepare for trial without asking for Gibbs’s permission. In addition,
Gibbs has not shown that the result would have been different had counsel not requested
continuances.
Accordingly, Gibbs’s third ground for relief will be denied.
V.

Certificate of Appealability

To grant a certificate of appealability, a federal habeas court must find a substantial
showing of the denial of a federal constitutional right. See 28 U.S.C. ' 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the issues
are debatable among reasonable jurists, a court could resolve the issues differently, or the issues
deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). In this case,
Gibbs has failed to make a substantial showing of the denial of a constitutional right. The
undersigned is not persuaded that the issues raised in his Petition are debatable among reasonable
jurists, that a court could resolve the issues differently, or that the issues deserve further
proceedings.
Accordingly, no Certificate of Appealability shall be issued.
ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 2nd day of September, 2015.
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