Revels v. Norman

Filing 20

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Jay Revels. IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED, and this action is DISMISSED with prejudice.IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.A separate Judgment will be issued forthwith. Signed by Magistrate Judge John M. Bodenhausen on 2/2/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAY REVELS,
Petitioner,
v.
JEFF NORMAN,
Respondent,

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No. 4:12CV1903 JMB

MEMORANDUM AND ORDER
Jay Revels, a prisoner at the Jefferson City Correctional Center, petitions the Court 1 for a
writ of habeas corpus under 28 U.S.C. § 2254. After carefully reviewing the petition and the
record, the Court concludes that Revels is not entitled to relief.
Background
The Missouri Court of Appeals recited the facts of this case as follows:
On the morning of July 2, 2003, Louis Wachowe (Wachowe) went to his place of
employment at the Walgreen’s on Chippewa and Kingshighway in the City of St.
Louis. He arrived at Walgreen’s parking lot at around 7:15 a.m. The store
manager was not yet there, and Wachowe did not have a key to the store, which
was locked. Wachowe sat in his vehicle, a 2002 Nissan Maxima, with the
window rolled down eating his breakfast while he waited for the manager to
arrive. As he waited, [Revels] approached Wachowe’s vehicle and asked him for
five dollars. Wachowe told [Revels] that he only had enough money for his own
lunch. [Revels] responded, “You have this nice car, you can’t give me five
dollars.” Wachowe tried to roll the window up, but [Revels] stuck a stick in the
window and said, “Hold on, hold on.” [Revels] then pulled out a gun and told
Wachowe to move over. Wachowe told [Revels] that he could have the vehicle,
but [Revels] responded, “You ain’t going nowhere.”
Wachowe moved over to the passenger’s seat, and [Revels] got in the driver’s
seat. [Revels] said, “This a nice car, Mr. Walgreen.” [Revels] also threatened to
kill Wachowe if he looked at him. [Revels] drove off the parking lot and onto

1

The parties consented to the jurisdiction of the undersigned magistrate judge to resolve
this proceeding. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.

Chippewa. As the car approached Morganford and Chippewa, [Revels] told
Wachowe to pull his pants down. When Wachowe asked what for, [Revels]
replied, “Pull your fucking pants down or I’m going to kill you.” Wachowe
jumped out of the vehicle and ran. Wachowe’s vehicle was recovered a few days
after it was stolen. A man named Shelby Polk (Polk) was driving the vehicle
when it was recovered. The police placed Polk in a lineup, but Wachowe did not
identify Polk as the man who had stolen his vehicle.
On August 9, 2003, Norman Sykes (Sykes) and Maurice Wilson (Wilson) pulled
into a Vickers’ gas station on Broadway in St. Louis. Sykes was driving a black
Jeep Cherokee. [Revels] and Cedric Robinson (Robinson) were already at the gas
station. Sykes and Wilson were acquainted with Robinson, but did not know
[Revels]. As Sykes paid for his gas, [Revels] asked Sykes and Wilson for a bag
of marijuana. They agreed to sell [Revels] the marijuana. Sykes asked [Revels]
to get in the Jeep so they could conduct the transaction without being seen.
[Revels] got into the Jeep with Sykes and Wilson. [Revels] then put a .357
handgun to Sykes’s head, and told him to drive off. [Revels] directed Sykes to
drive to a nearby cemetery and told him to pull over.
As the Jeep came to a stop, Wilson turned around and punched [Revels]. All
three men began struggling in the back of the Jeep and four gunshots were fired.
One of the bullets hit Sykes, one hit the backseat, and the other two struck
Wilson. Sykes rolled out the driver’s side back door. [Revels] also got out of the
Jeep, pointed a gun at Sykes and ordered him to take his pants off. As Sykes
removed his pants, he saw blood on his shirt and realized that he had been shot.
Sykes gave the pants to [Revels] and ran to get help. As Sykes ran from the
scene, he heard [Revels] tell Wilson to get out of the Jeep. Wilson told [Revels]
he could not move, so [Revels] pulled him out and took Wilson’s pants off.
[Revels] then got into the Jeep and drove away.
A day or two after the shootings, Sykes saw a television report about a high-speed
chase and an arrest. Sykes recognized the man arrested as [Revels], and he
reported that to the police. Sykes and Wilson both viewed a photo spread and
identified [Revels]. Sykes also identified [Revels] from a physical lineup.
After [Revels] was arrested following the August 9, 2003 incident, police officers
discussing that case and the July 2, 2003 incident thought because the assailant’s
modus operandi of asking the victim to remove his pants was unusual, the
assailant in both incidents could be the same person. Wachowe then identified
[Revels] as the person who robbed him from both a photo spread and a physical
lineup.
Resp’t Ex. F at 3-5 (Per Curiam Mem. and Order Supplementing Order Affirming J. Pursuant to
Rule 30.25(b)).

2

The State charged Revels in a twenty-eight count indictment that included charges of
first-degree assault, first-degree robbery, kidnapping, armed criminal action, resisting arrest, and
several relatively less serious crimes. Id. at 1-2. Revels pled guilty to two counts of resisting
arrest, two counts of stealing, one count of unlawful use of a weapon, and five counts of
receiving stolen property. Id.
Revels opted for a jury trial on sixteen charges (the more serious felony charges). The
charges tried included two counts of first-degree assault, eight counts of armed criminal action,
three counts of first-degree robbery, and three counts of kidnapping. Resp’t Ex. C at 12-20.
Counts 1 through 12 related to the events on August 9, 2003, with victims Wilson and Sykes.
Counts 13 through 16 related to the events on July 2, 2003, with victim Wachowe.
At trial, the prosecution presented evidence and testimony from numerous witnesses,
including victims Wachowe and Sykes. Shortly before the trial began, Cedric Robinson agreed
to plead guilty and cooperate with the prosecution, in exchange for a reduced sentence. Resp’t
Ex. A at 373-460. During his testimony, Robinson repudiated prior written statements signed by
him which indicated Revels was not involved in the August 9, 2003, robbery. Id. at 396-401. 2
Robinson testified, in substance, that Revels had prepared these exculpatory statements for
Robinson. Id. Robinson further testified that Revels advised him to “stick to the script,” and that
such an approach would result in freeing both men. Id. at 401-02.
Victims Wachowe, Sykes, and Wilson each testified for the State. Victim Wachowe
identified Revels as the person who robbed him, and the jury viewed security surveillance
footage of the initial encounter between Wachowe and Revels on the Walgreens parking lot. Id.
2

Robinson testified that, for at least one of these statements, he signed a piece of paper
and someone else completed the statement. Id. at 436-42. The State and defense also stipulated
to numerous facts associated with expert handwriting analysis conducted on the written
statements. See Resp’t Ex. B at 4-6.
3

at 237, 241-42. Victim Sykes identified Revels as the person who robbed him, and testified that
Revels “pulled a .357 and put it to [Sykes’] head and told [Sykes] to drive off.” Id. at 272, 284.
Victim Wilson identified Revels as the person who shot him and described the gun as a .357. Id.
at 355-56, 366.
The jury convicted Revels on Counts 1 through 7, and 13 through 16. The jury acquitted
Revels on Counts 9 through 13, which alleged kidnappings of victims Wilson and Sykes, and
associated armed criminal action allegations. The court sentenced Revels as a persistent offender
to a total of thirty years’ imprisonment. Resp’t Ex. F at 1-2.
On direct appeal, Revels contended that the trial court erred in denying his motion for
judgment of acquittal at the end of all evidence because there was insufficient evidence to
support the robbery and armed criminal action counts for stealing Norman Sykes’ pants. Id. He
further argued that the trial court erred in overruling his objections to the prosecutor’s questions
of Officer Kevin Ahlbrand regarding stolen cars. Id.
Revels also argued that “the State overreached by ‘piling on’ multiple charges.” Id. at 7.
The court found the argument to be without merit because prosecutors enjoy broad discretion as
to what charges they file. Id. at 7-8.
The court found that Sykes’ testimony and his statement to a police officer were
sufficient for a rational juror to convict Revels of robbery and armed criminal action. Id. at 6-7.
The court also rejected Revels’ argument that the trial court erred when it overruled his
objections to the prosecutor’s questions of Officer Kevin Ahlbrand regarding stolen cars.
Ahlbrand testified on re-direct, over Revels’ objections, that often the person caught driving a
stolen vehicle is not the same person who stole the vehicle. Id. at 9. As to why, he stated,
“Typically stolen vehicles, either stolen off the street or taken in robberies, are sold several times

4

for a small amount of money on the street to several different people.” Id. Defense counsel
objected on the ground that the testimony called for speculation. Id.
The court reviewed the claim for abuse of discretion. It found that the statement was not
improper testimony from a layperson, but that the question was “intended to elicit his
observations from twenty-one years of law enforcement experience as to why a car stolen by one
person would be recovered in the possession of another person.” Id. at 10. The court affirmed
the judgment. Id. at 11.
Revels filed a timely pro se Rule 29.15 motion, which raised six grounds for relief.
Resp’t Ex. G at 4, 7-8 (Legal File). 3 Appointed counsel filed an amended motion, id. at 18-25,
which superseded the pro se motion, see Norville v. State, 83 S.W.3d 112, 114 (Mo. Ct. App.
2002). In the amended motion, Revels raised two grounds of ineffective assistance of counsel.
Revels argued that trial counsel was ineffective for failing to file a motion to suppress the
physical line-up, and for failing to file a pretrial motion to sever the charges of the two incidents
(July 2, 2003, and August 9, 2003 incidents). Resp’t Ex. G at 20, 22. The motion court denied
relief without an evidentiary hearing. Id. at 26-31.
Revels appealed the denial of his Rule 29.15 motion, and the Missouri Court of Appeals
affirmed. Resp’t Ex. J at 2 (Per Curiam Mem. and Order Supplementing Order Affirming J.
3

Revels raised four claims of ineffective assistance of counsel. Claim One alleged that
his trial counsel was ineffective in failing to raise issues of severance and improper joinder.
Claim Two alleged that trial counsel was ineffective in connection with the admission into
evidence of a .357 caliber revolver. Claim Three alleged that counsel was ineffective in failing
to sufficiently cross-examine Cedric Robinson regarding the .357 caliber revolver. Claim Four
alleged ineffective assistance of counsel regarding Police Officer Ahlbrand’s testimony on redirect examination. Revels also raised two due process claims. In Claim Five, Revels argued
that he was denied his due process rights when the trial court denied counsel’s motions for
judgment of acquittal on Counts 7 and 8 (contending that the evidence was insufficient to
support a conviction relative to the Norman Sykes incident). In Claim Six, Revels argued that he
was denied his due process rights when he was placed in a biased photo lineup. Resp’t Ex. G at
7-8.
5

Pursuant to Rule 84.16(b)). The appellate court found that trial counsel was not ineffective for
failing to file a meritless motion to suppress. Id. And it found that joinder of the charges was
proper under Missouri law. Id. at 6-8.
Grounds for Relief
In his petition under 28 U.S.C. § 2254, Revels raised four grounds with relief, some of
which included numerous subparts. Revels’ grounds are summarized as follows –
1.

Ineffective Assistance of Counsel Claims
(a)
Trial counsel was ineffective for failing to raise a “Drug
Deal Gone Bad” defense, failing to raise a mistaken identity
defense, and failing to contact his alibi witnesses.
(b)
Trial counsel was ineffective for failing to file a motion to
suppress the identification of him in the line-up because the other
participants in the line-up did not resemble him.
(c)
Trial counsel was ineffective for failing to file a motion to
sever counts.
(d)
Trial counsel was ineffective for failing to call as a witness
Shelby Polk, who was arrested while in Wachowe’s car.
(e)
Trial counsel was ineffective for failing to depose any
witnesses.
(f)
Trial counsel was ineffective for failing to move for a
continuance when co-defendant Cedric Robinson was announced
as a surprise witness.
(g)
Trial counsel was ineffective for failing to file a motion to
dismiss improperly joined counts.
(h)
Trial counsel was ineffective for failing to object when
Cedric Robinson testified that the same gun was used in both
assaults.
(i)
Appellate counsel was ineffective for failing to raise the
claims he instructed her to raise.
(j)
Post-conviction counsel was ineffective for failing to raise,
in the amended motion for post-conviction relief, all of all of the
claims he raised in his pro se motion.
6

2.

Prosecutorial Misconduct
(a)
The prosecution did not announce that it was going to call
Cedric Robinson at trial.
(b)
The prosecution knowingly introduced Robinson’s perjured
testimony about the gun.
(c)
The prosecution relied on an unreliable identification
procedure.
(d)
The prosecution “engaged in multiplicity/duplicity when it
stacked several charges against [him].”
(e)
The prosecution allowed Officer Ahlbrand to give his
opinion regarding whether the person caught driving a stolen car is
necessarily the same person who stole it.
(f)

The prosecution presented contradictory theories.

(g)
The prosecution did not introduce sufficient evidence to
support the verdict.
3.

The lack of ballistic evidence demonstrates actual innocence.

4.

The trial court sentenced Revels vindictively.
Applicable Legal Principles

I.

Procedural Default
To avoid 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) (quotation marks omitted). A claim has been
fairly presented when a petitioner has properly raised the same factual grounds and legal theories
in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that
have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted
may not give rise to federal habeas relief unless the petitioner can demonstrate cause and
7

prejudice for the default. Id. “[T]he existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986).
II.

Merits Standard
In the habeas setting, a federal court is bound by the Antiterrorism and Effective Death

Penalty Act (“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 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] Court on a question of law or
… decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000).

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.” Id. at 407-08. Finally, 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. 28 U.S.C. §2254(e)(1); Ryan v.
Clarke, 387 F.3d 785, 790 (8th Cir. 2004).

8

III.

Ineffective Assistance of Counsel
Federal habeas review of an ineffective assistance of counsel claim is “doubly

deferential.” Knowles v. Mirzayance, 556 U.S. 111 (2009). First, a petitioner must overcome the
high bar of Strickland v. Washington, 466 U.S. 668 (1984), by showing that (1) counsel’s
performance fell below an objective standard of reasonableness; and (2) petitioner was
sufficiently prejudiced such that “the result of the proceeding would have been different.” Id. at
688, 694.4 Second, in order to prevail, under 28 U.S.C. § 2254 the petitioner must show that the
state court’s adjudication of his ineffective assistance claim was “unreasonable.” Harrington v.
Richter, 562 U.S. 86, 105 (2011). “This is different from asking whether defense counsel’s
performance fell below the Strickland standard.” Id. at 101. Both the Strickland standard and
the standard set forth in § 2254 are highly deferential. Ultimately, “[t]he question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at
105.

Finally, claims must be addressed individually – errors that are not unconstitutional

individually cannot be accumulated to create a constitutional violation. See Cole v. Roper, 623
F.3d 1183 (2010); United States v. Stewart, 20 F.3d 911, 917-18 (8th Cir. 1994).
Discussion
I.

Ineffective Assistance of Counsel Claims
A.

Ground 1(a)

In Ground 1(a), Revels argues that trial counsel was ineffective for (i) failing to raise a
“Drug Deal Gone Bad” defense, (ii) failing to raise a mistaken identity defense, and (iii) failing

4

A habeas petitioner must prevail on both prongs of the Strickland standard. See
Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) (“Failure to establish either Strickland
prong is fatal to an ineffective-assistance claim.”). Therefore, if a petitioner cannot show
prejudice, there is no requirement to consider the adequacy of counsel’s performance.
9

to contact his alleged alibi witnesses. Respondent contends that this ground is both procedurally
defaulted and meritless. Respondent is correct.
Revels did not raise this claim in his pro se Rule 29.15 motion post-conviction relief, and
it was not raised in the amended Rule 29.15 motion or on appeal. Revels argues that this ground
should not be barred because post-conviction counsel was ineffective under Martinez which, if
shown, would excuse the default.
Respondent answers that there is no “Drug Deal Gone Bad” defense and that Revels’
mistaken identity and alibi claims are conclusory. Respondent is correct.
The Supreme Court held in Martinez v. Ryan that:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, 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. 1309, 1320 (2012). This rule does not apply to “appeals from initial-review collateral
proceedings.” Id. Therefore, the default may be excused if any of the eliminated grounds of
ineffective assistance of trial counsel was “substantial,” “which is to say that the prisoner must
demonstrate that the claim has some merit.” Id. at 1318.
Revels cannot avoid the procedural bar because his claims in Ground 1(a) are not
“substantial” under Martinez. That is, they have no merit.
First, Revels has not identified, and the Court is unaware of, a “Drug Deal Gone Bad”
defense. Even if such a defense exists, Revels has not explained how an alleged failure to defend
his case on the basis of drug dealing resulted in meaningful prejudice. Finally, the record shows
that counsel did, in fact, attempt to introduce a “Drug Deal Gone Bad defense and the court

10

refused to let her pursue it. See Resp’t Ex. A at 362-63. 5 In fact, the outcome of the case
suggests that the jury considered aspects of a “Drug Deal Gone Bad” defense – Revels was
acquitted on the charges of kidnapping and armed criminal action relative to victims Wilson and
Sykes (Counts 9-12).
Second, as Respondent correctly points out, trial counsel did, in fact, challenge the
witnesses’ identifications at trial. Thus, Revels has not shown trial counsel’s performance was
deficient, let alone any prejudice flowing from such performance (as it relates to witness
identifications). 6
Third, as far as Revels’ alibi witnesses are concerned, he submits two sparse affidavits
from relatives – Brenda Revels and Ramona Revels. Both of these affidavits were prepared
years after the events in question. (ECF No. 9) As noted above, even Revels did not raise this
issue in his pro se Rule 29.15 motion, and there is no indication that his 29.15 motion counsel
had access to the information in these affidavits. More importantly, the record before the trial
court tends to undermine Revels’ claims. Near the end of his sentencing hearing, the court
inquired into the adequacy of trial counsel’s representation. Resp’t Ex. B at 165-75. During that
inquiry, Revels stated that his attorney failed to speak with three witnesses he requested – Angela
Ursery, Steven Williams, and Ebony Williams. Id. at 180.
To establish Strickland prejudice from counsel’s alleged failure to investigate a potential
witness, “petitioner must show that the witness would have testified and that their testimony
would have probably changed the outcome of the trial.” Hadley v. Groose, 97 F.3d 1131, 1135
5

During defense counsel’s cross-examination of prosecution witness Maurice Wilson,
the prosecutor objected. During the resulting side bar, defense counsel explained to the court
that she was trying to show “this was a drug deal gone bad, who was robbing who.” Id. The
court shut down this line of cross-examination.
6
The Court addresses other identification issues relative to Revels’ claims 1b and 2c
below.
11

(8th Cir. 1994) (internal quotations omitted). There was no mention of Brenda or Ramona
Revels before the trial court, and Revels does not offer any affidavits from any other allegedly
helpful witnesses. Revels offers only speculation that these other witnesses were available and
would have offered beneficial testimony. Further, giving Revels the benefit of the doubt, given
the strength of the other evidence against him, there is no reasonable likelihood that the outcome
of his trial would have been different had trial counsel contacted these witnesses.
Accordingly, Revels has not overcome the procedural default of Ground 1(a). Ground
1(a) is denied.
B.

Ground 1(b)

In Ground 1(b), Revels argues that trial counsel was ineffective for failing to file a
motion to suppress the line-up identification because there were only three other participants in
the line-up and they did not resemble him. 7 Respondent contends that the line-up was not
unduly suggestive and that Revels cannot show Strickland prejudice. Resp’t Br. at 23.
Revels raised a version of Ground 1(b) in his amended Rule 29.15 motion. Resp’t Ex. G
at 20. The Missouri Court of Appeals denied relief on this claim because Revels did not allege
any facts that would have entitled him to relief: “Movant advances no facts that support his
allegation that the identifications procedures were unnecessarily suggestive.” Resp’t Ex. J at 6.
“[T]he Due Process Clause requires suppression of an eyewitness identification tainted
by police arrangement.” Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012). “[D]ue process
concerns arise only when law enforcement officers use an identification procedure that is both
7

Revels also argues that he had a right to the assistance of counsel at the physical line-up.
(ECF No. 1-1 at 2) This argument is based on a flawed premise. The right to counsel during an
identification proceeding only attaches after adversarial proceedings have begun. See United
States v. Wade, 388 U.S. 218, 228-29, 233 (1967). There is no contention that the identification
procedures at issue occurred after Revels had been formally charged or adversarial proceedings
had otherwise begun.
12

suggestive and unnecessary. Even when the police use such a procedure … suppression of the
resulting identification is not the inevitable consequence.” Id. (citations omitted).
Revels has not cited any Supreme Court cases requiring that an alleged perpetrator be
placed in a line-up comprised of similar looking persons. There is no indication that “improper
police conduct created a substantial likelihood of misidentification.” Id. (quotations and citations
omitted).
Additionally, Revels has not demonstrated prejudice from any alleged misidentification.
For example, Sykes testified that he first recognized Revels from a newscast of the chase leading
to his arrest. Resp’t Ex. A at 314 (Trial Tr.). 8

Wachowe was first shown a line-up that did not

include Revels, and Wachowe rejected all of the subjects. Id. at 233. Wachowe later identified
Revels in a photospread. Id. at 234. After identifying Revels from the photospread, Wachowe
then identified Revels in a line-up. See also Resp’t Ex. B at 18-20. 9 As a result, there is no
indication that any line-up was unduly suggestive or otherwise unconstitutional. Therefore, trial
counsel did not provide constitutionally ineffective assistance in declining to mount a pretrial
challenge to the line-up procedures used in Revels’ case.
The state court’s opinion was not contrary to, or an unreasonable application of, clearly
established federal law. Rather, the state court’s decision denying relief reflects a “reasonable

8

Cf. United States v. Omar, 786 F.3d 1104, 1109-10 (8th Cir. 2015) (“Even if it
could be said that the identification technique used here was unduly suggestive, [the
Eighth Circuit has] reasoned that ‘when someone already familiar with a suspect is asked
to comment on whether a recorded voice or image portrays the suspect … concerns
[about the prejudicial effect of undue suggestiveness] are absent.’”) (quoting United
States v. Dobbs, 449 F.3d 904, 909-10 (8th Cir. 2006)).
9

The photospread was created using an automated system that selects photographs of
persons with similar characteristics. The photospread included six different individuals. See
Resp’t Ex. B at 19. Thus, it is highly unlikely that counsel could have successfully challenged
the identification procedures used in this matter.
13

argument that [Revels’] counsel satisfied Strickland’s deferential standard.”

Harrington v.

Richter, 562 U.S. at 105. Therefore, Revels is not entitled to relief on Ground 1(b).
C.

Ground 1(c)

In Ground 1(c), Revels argues that trial counsel was ineffective for failing to file a motion
to sever counts. Specifically, Revels maintains that the charges from the incident on July 2,
2003, should have been tried separately from the charges arising from the incident on August 9,
2003. Respondent contends that any such motion would have been meritless and that it reflects
an issue of state law that is not cognizable in federal habeas review.
As an initial matter, the record is abundantly clear that, had trial counsel moved to sever
the counts, the trial court would have denied such a motion. After sentencing Revels, the trial
court inquired as to Revels’ satisfaction with counsel’s representation. Resp’t Ex. B at 165-75.
One of Revels’ complaints was that he did not want a single trial for both the July 2, 2003, and
the August 9, 2003 incidents. Id. at 172. In response, the trial court stated that “if [counsel] had
requested that I sever those charges, I would have denied her request under Missouri law.” Id.
Revels raised a version of this claim in his amended Rule 29.15 motion. In particular,
Revels claimed that trial counsel was ineffective for failing to seek separate trials for the July 2,
2003, events, and the August 9, 2003 events. Resp’t Ex. G at 22. The Missouri Court of
Appeals rejected this argument, concluding that, under Missouri law, the crimes associated with
both incidents were properly joined and Revels had failed to show any prejudice associated with
counsel’s failure to seek severance. Resp’t Ex. J at 6-9.
Missouri Supreme Court Rule 23.05 provides:
All offenses that are of the same or similar character or based on two or more acts
that are part of the same transaction or on two or more acts or transactions that are
connected or that constitute parts of a common scheme or plan may be charged in
the same indictment or information in separate counts.
14

“In order to be considered of the same or similar character, the crimes committed must be so
similar that it is likely the same person committed the charged offenses.” Resp’t Ex. J at 6.
In denying relief on this claim, the Missouri Court of Appeals applied Missouri law and
found the two incidents to be similar in character.
In the instant case, both robberies occurred within the City of St. Louis and within
approximately five weeks of each other. Both robberies involved an AfricanAmerican male perpetrator deceptively engaging male victims, before entering the
victims’ automobile with the victim(s) still inside. Significantly, both robberies
involved the unique demand by the perpetrator that his victims remove their
pants. These common facts sufficiently demonstrate that the Walgreens robbery
and the gas station robbery were similar in character.
Id. at 7.
“In § 2254 proceedings, federal courts are limited to deciding whether a state conviction
violated the federal Constitution or laws…. A federal court may not re-examine a state court’s
interpretation and application of state law.” Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.
1994) (citation omitted). See also Middleton v. Roper, 498 F.3d 812, 820 (8th Cir. 2007) (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). The state court’s decision was entirely grounded
in state law, and this Court must defer to that decision. Missouri’s law is not in conflict with any
federal constitutional principles.
The record conclusively shows that, had counsel moved to sever the trials, such a motion
would have been unsuccessful. Therefore, Revels cannot now show that counsel was deficient
for failing to file a meritless motion. Accordingly, Revels cannot demonstrate that he was
prejudiced by counsel’s performance in this regard. As a result, Revels is not entitled to relief on
Ground 1(c).
D.

Ground 1(d)

In Ground 1(d), Revels argues that trial counsel was ineffective for failing to call as a
witness Shelby Polk (“Polk”), who was arrested while in Wachowe’s car after it had been stolen.
15

Respondent argues that this ground is procedurally defaulted. Revels did not raise it in his Rule
29.15 motion, and he has not offered any basis to excuse his default. Respondent also contends
that Revels has failed to show that he was prejudiced by the failure to call Polk as a witness. As
a result, Revels is not entitled to relief on this ground.
The Court concludes that Revels has defaulted this ground. It was not raised in his pro se
or amended Rule 29.15 motions, and Revels has not identified any cause and prejudice that
would excuse his default. In any event, this claim also fails on the merits.
“Some days” after the theft of Wachowe’s car, officers arrested Polk while he was
driving Wachowe’s car. Resp’t Ex. B at 16. Polk was placed in a line-up at the St. Louis County
Justice Center with persons sharing similar physical characteristics. As noted above, Wachowe
was asked if he could identify any of the persons in the line-up and he could not. Id. at 17. Id.
After Wachowe was unable to identify anyone in the line-up, the police did not have any leads in
the case. Id. at 18.
Revels contends that Polk was found “with a gun that closely resembled the one
described by robbery victim, but Counsel Thomas again remained not to abide by Movant’s
wishes claiming she didn’t want to upset the Court and wind up with an all white jury from
Ladue. This was wrong and a reasonable minded counsel wouldn’t have taken such a stance,
therefore Movant is entitled to a new trial.” Mem. in Supp. of Pet. at 2. Nothing in the record,
however, suggests that Polk was the person that stole Wachowe’s car, other than the fact that he
was driving it when it was recovered. The record demonstrates that Wachowe did not identify
Polk as the robber during the line-up procedures.
As noted above, to establish Strickland prejudice from counsel’s alleged failure to
investigate a potential witness, “petitioner must show that the witness would have testified and

16

that their testimony would have probably changed the outcome of the trial.” Hadley v. Groose,
97 F.3d 1131, 1135 (8th Cir. 1994) (internal quotations omitted). Revels has not met this
burden. There is no indication that Polk would have testified, and if so, what his testimony
might have been. 10 Revels offers only speculation that Polk’s testimony would have been
beneficial. That is not enough to overcome the deferential standard of Strickland. Similarly,
Revels cannot show that the outcome of the trial would have been different had counsel called
Polk to the stand. Regardless of Polk’s presence in Wachowe’s vehicle after it had been stolen,
there was more than sufficient evidence to convict Revels of the crimes. Thus, even if Revels
had not defaulted, he would not be entitled to relief on Ground 1(d).
E.

Ground 1(e)

In Ground 1(e), Revels argues that trial counsel was ineffective for failing to depose any
witnesses, and as a result, “was ill prepared at trial to present a legitimate adversarial testing.”
Revels further argues that counsel “was aimless and allowed prosecution [sic] to have it’s [sic]
way with [her].” Respondent contends that depositions are not required and that trial counsel
thoroughly and effectively cross-examined the state’s witnesses.
Respondent also argues that Ground 1(e) is procedurally defaulted. Revels did not raise
it in either his pro se or amended Rule 29.15 motions, and he has not offered any basis for cause
and prejudice. As a result, he is not entitled to relief on this ground.
Alternatively, this claim fails on the merits. Counsel’s impeachment of the prosecution’s
witnesses did not fall below the level of reasonableness. Specifically, the record shows that trial

10

Revels argument suggests a theory that Polk, not Revels, was the perpetrator of the
Wachowe robbery. Given the fact that Polk was driving a stolen vehicle in which the police
allegedly found a weapon, it is likely that Polk would have asserted his privilege against selfincrimination under the Fifth Amendment had he been called to testify at Revels’ trial.
17

counsel was reasonably well-prepared and effectively cross-examined Wachowe, Officer Vetter,
Officer Ahlbrand, Wilson, and Robinson.
During her cross-examination of Wachowe, for example, counsel demonstrated great
familiarity with the information he provided to the police officers and detectives about Revels’
appearance and characteristics. Resp’t Ex. A at 243-52. Counsel elicited that he described
Revels as being between 5’7’’ and 5’8,” having a “scraggly beard” with no mustache, wearing a
short-sleeved T-shirt, as having a light complexion, having worn blue jean shorts, and carrying a
.32 caliber blue steel revolver. Id.
Counsel cross-examined Officer Vetter about the discrepancies between the description
of Revels in the police report and Wachowe’s description of him. Id. at 327-29. In doing so, she
demonstrated her knowledge of the record.
Similarly, when cross-examining Officer Ahlbrand, counsel demonstrated ample
knowledge of the record in attacking the makeup of both the photographic and physical line-ups.
Id. at 32-39.
In cross-examining Wilson, counsel attempted to show that Wilson and Sykes lured
Revels into their car with the promise of selling him marijuana they did not have. Id. at 362-63.
She wanted to introduce a “Drug Deal Gone Bad” defense, which the court did not allow. Id. at
362-63.
Counsel examined Robinson at length about his plea deal with the State. Id. at 411-54.
She had spent several hours listening to tapes of his testimony to prosecutors about his
involvement in the incident. Id. at 412. She highlighted several inconsistent statements he made
before and after the plea deal regarding his culpability in the incident. Id. at 412-54. She

18

demonstrated comprehensive knowledge of Robinson’s oral statements to prosecutors, and she
effectively impeached his testimony.
Counsel’s knowledge of the record and her impeachment of the prosecution’s witnesses
did not fall below Strickland’s standard of reasonableness.

Moreover, Revels has not

demonstrated that the outcome of the trial would have been different had she deposed the
witnesses before trial. Accordingly, even if Revels had not defaulted Ground 1(e), he would not
be entitled to relief on this ground.
F.

Ground 1(f)

In Ground 1(f), Revels argues that trial counsel was ineffective for failing to move for a
continuance when co-defendant Cedric Robinson was announced as a surprise witness. Revels
contends that introducing Robinson as a witness just before trial was a violation of Brady v.
Maryland. Brady and its progeny require the timely disclosure of favorable evidence to the
defense, including impeachment material. See, e.g., Brady v. Maryland, 373 U.S. 83 (1963);
Kyles v. Whitley, 514 U.S. 419 (1995). As explained below, Brady does not apply in this
situation.
More fundamentally, however, Respondent argues that Ground 1(f) is procedurally
defaulted. Revels did not raise it in either his pro se or amended Rule 29.15 motions, and he has
not offered any basis for cause and prejudice. As a result, Revels is not entitled to relief on
Ground 1(f).
Responding to the merits, Respondent claims that the introduction of Robinson as a
witness involves state discovery rules and is not cognizable in these proceedings. Respondent
further claims that this issue does not involve exculpatory evidence, and therefore, Brady is not
implicated. The record in this matter supports Respondent.

19

First, Respondent is correct that Brady is not implicated by a tardy disclosure of
inculpatory information. In Brady, the Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. The introduction of Robinson as a witness was not
favorable to Revels. Moreover, Revels makes no credible allegation, and the Court finds no
suggestion in the record, that the State failed to adequately disclose impeachment material
relative to Robinson. To the contrary, the record suggests that the State disclosed the nature and
extent of Robinson’s cooperation as well as his prior inconsistent statements.
Further, there is no constitutional or federal law requirement that the prosecution reveal
the identities of its witnesses before trial in a non-capital case. See United States v. Hutchings,
751 F.2d 230, 236 (8th Cir. 1984). Thus, any issue regarding the timeliness of the disclosure of
Robinson’s status as a witness would involve a non-cognizable issue of Missouri criminal law.
More importantly, Revels was not prejudiced by his lawyer’s failure to request a continuance.
As stated above, during her cross-examination of Robinson, counsel demonstrated thorough
knowledge of his statements relative to the charged crimes – both before and after his plea
deal. 11 Counsel used Robinson’s inconsistent statements, as well and the benefit Robinson
received for from his plea agreement with the State, to thoroughly cross examine him and
impeach him before the jury. Accordingly, Revels has failed to show his attorney’s performance
was constitutionally deficient or that that the outcome of the trial would have been different had
she asked for a continuance.
11

For example, the record shows that counsel spent considerable time reviewing
Robinson’s statements in preparation for cross-examination. See, e.g., Resp’t Ex. A at 412-13
(explaining that counsel took good notes, spent eight hours reviewing a tape of Robinson’s
statements, and was aware of changes in Robinson’s version of events).
20

Revels is not entitled to relief on Ground 1(f).
G.

Ground 1(g)

In Ground 1(g) of the petition, Revels argues that trial counsel was ineffective for failing
to file a motion to dismiss improperly joined counts. Respondent argues that this is an issue of
state law and that the Court should defer to the state court’s legal conclusions. 12
As noted above regarding Ground 1(c) (failure to file a motion to sever counts), the
record is abundantly clear that, had trial counsel moved to sever the counts, the trial court would
have denied such a motion. Resp’t Ex. B at 165-75. Furthermore, the Missouri Court of
Appeals resolved Revels’ severance/joinder issues pursuant to the application of Missouri law,
and consistent with the trial court’s statement to Revels during sentencing. Thus, even if counsel
had objected and preserved the joinder issue for direct appeal, Revels would still not prevail.
Under Missouri law, joinder is proper if “where the charged offenses are: (1) of the same or
similar character: (2) based on two or more connected acts or transactions; or (3) part of a
common scheme or plan.” Resp’t Ex. J at 6.
In denying relief on this claim, the Missouri Court of Appeals found the two incidents –
the July 2, 2003, and the August 9, 2003, robberies – to be similar in character.
In the instant case, both robberies occurred within the City of St. Louis and within
approximately five weeks of each other. Both robberies involved an AfricanAmerican male perpetrator deceptively engaging male victims, before entering the
victims’ automobile with the victim(s) still inside. Significantly, both robberies
involved the unique demand by the perpetrator that his victims remove their
pants. These common facts sufficiently demonstrate that the Walgreens robbery
and the gas station robbery were similar in character.
Id. at 7.
12

Technically, ground 1(g) has been procedurally defaulted. Revels’ pro se and amended
Rule 29.15 motions only raised an issue of severance due to misjoinder, not dismissal of
improperly joined counts. See Resp’t Ex. G at 7, 9, 20. The Court need not rely on default to
resolve ground 1(g) because it would fail on the merits.
21

As already discussed above, “[i]n § 2254 proceedings, federal courts are limited to
deciding whether a state conviction violated the federal Constitution or laws…. A federal court
may not re-examine a state court’s interpretation and application of state law.” Schleeper, 36
F.3d at 737. The state court’s decision was entirely grounded in state law. Revels has not
demonstrated that Missouri law is in conflict with the Constitution or any other federal law. 13
This Court must defer to the Missouri Court of Appeals decision.
Revels cannot show that counsel was deficient for failing to file a hopeless motion to
dismiss allegedly improperly joined counts. As such, he also cannot demonstrate that he was
prejudiced. Therefore, he is not entitled to relief on Ground 1(g).
H.

Ground 1(h)

In Ground 1(h), Revels argues that trial counsel was ineffective for failing to object to
Cedric Robinson’s testimony regarding the gun used in the August 9, 2003 events. (ECF No. 1-1
at 3) To understand Ground 1(h), it is useful to also understand that Revels was arrested on
August 11, 2003 (two days after the Sykes robbery) and found to be in possession of a .357
revolver. Revels ultimately pled guilty to unlawful use of a weapon and carrying a concealed
weapon (Count 17). See Resp’t Ex. A at 6-7, 36. The substance of Revels’ argument is that the
State should not have been permitted to show the gun seized from him (and which he pled guilty
to unlawfully possessing) to Robinson.

As explained below, the factual basis for Revels’

argument is not supported by the record when viewed in context.
Prior to trial on the more serious charges, the prosecutor acknowledged that the State did
not have “ballistics that match the gun that was seized [from Revels] with the shootings [on
August 9, 2003].” Id. at 36-37. At trial, Robinson was shown the .357 revolver seized from
13

In fact, Missouri law is similar to the corresponding federal rule regarding joinder of
offenses. See Fed. R. Crim. P. 8(a).
22

Revels (State’s Exh. 24B). Robinson testified, in substance, that it was the same gun he saw
Revels possess on August 9, 2003, in connection with the Sykes robbery. Robinson described
the lack of a “thumb presser” on the weapon. Id. at 389-92. Revels also testified that, after the
robbery and shooting on August 9, 2003, Revels removed and discarded the shells from the
weapon, and replaced them with several .38 caliber cartridges given to him by Robinson. Id. at
389-90.
After Robinson testified, the State presented evidence and testimony from an expert
firearms examiner – Officer David Menendez. Resp’t Ex. B at 6-13. Officer Menendez testified
that he examined the .357 revolver and six live .38 caliber cartridges with it. Id. at 9-10. Officer
Menendez testified that a .357 caliber weapon can accept a .38 caliber cartridge. Id. at 12.
Officer Menendez examined the weapon only to ensure that it fired and was functional. The
record indicates that Officer Menendez did not conduct any ballistics tests on the weapon. Id. at
13-14.
Revels argues that his trial counsel should have objected to Robinson’s testimony
regarding the .357 revolver because Robinson’s testimony was allegedly false. The gist of
Revels’ position is that, because there was no ballistics evidence linking the shootings to the
revolver, Robinson’s testimony must be false.

Respondent contends that this ground is

procedurally defaulted and, in any event, that allegedly false testimony is not a valid basis for an
objection.
Revels did not raise this ground on appeal from the denial of his post-conviction motion.
He has not alleged cause or prejudice to excuse any default.
procedurally defaulted, and Revels is not entitled to relief.

23

Therefore, Ground 1(h) is

Even assuming Revels could overcome his default, Ground 1(h) would fail on the merits
for at least two reasons. First, Respondent is correct that allegedly false testimony, without
more, is not a basis for a proper objection. See Perry v. New Hampshire, ---U.S.---, 132 S. Ct.
716, 723 (2012) (“The Constitution … protects a defendant against a conviction based on
evidence of questionable reliability, not by prohibiting introduction of the evidence, but by
affording the defendant means to persuade the jury that the evidence should be discounted as
unworthy of credit.”).
Second, and more importantly, even if Ground 1(h) is liberally construed to state a proper
claim for federal habeas review (e.g., counsel’s failure to object to the foundation for Robinson’s
testimony), it would still fail because Revels’ argument is unsupported by the record, when it is
viewed in full context.
Robinson’s testimony was that State’s Exhibit 24B – a .357 caliber revolver – was the
same as the gun that he observed Revels possess in connection with the August 9, 2003 robbery.
Robinson described a specific characteristic of the gun – the lack of a “thumb presser.”
Robinson also testified that, after the robbery, Revels discarded the shells that were in the
revolver and replaced them with .38 caliber shells. Officer Menendez testified that State’s
Exhibit 24B (the revolver) was recovered with six .38 caliber shells, thus corroborating, at least
in part, Robinson’s testimony. 14 Furthermore, although there was no ballistics evidence that
matched the .357 revolver to the shooting on August 9, 2003, there was also no ballistics
evidence excluding that revolver from the shooting. Officer Menendez’s analysis was limited to
14

There is no dispute that the State’s theory was that Revels’ robberies were a signature
type of crime (e.g., demanding that victims remove their pants). In this regard, even absent
expert ballistics evidence affirmatively linking the seized handgun to the events of August 9,
2003, the gun and Robinson’s testimony would have been admissible as evidence of the same
type of gun Revels in fact possessed, which was loaded with the same type of ammunition that
Revels was last known to have used.
24

verifying that the firearm was operational. Furthermore, before Robinson or Officer Menendez
testified, all three victims testified and indicated that Revels robbed them at gunpoint. Victims
Sykes and Wilson specifically identified the weapon as a .357.
Thus, Revels cannot show that Robinson’s testimony was demonstrably false or that his
counsel could have taken more steps to limit Robinson’s testimony as to what he observed on
August 9, 2003. Thus, Revels cannot show any Strickland deficiency or prejudice due to
counsel’s failure to object to Robinson’s testimony regarding State’s Exhibit 24B. As a result,
even if Revels had not defaulted Ground 1(h), he would not be entitled to relief on the basis of a
claim that Robinson allegedly testified falsely regarding the .357 caliber revolver.
I.

Ground 1(i)

In Ground 1(i), Revels argues that appellate counsel was ineffective for failing to raise
the issues he instructed her to raise on direct appeal. Revels claims that he instructed direct
appeal counsel to raise claims of ineffective assistance of counsel regarding allegedly perjured
testimony (Ground 1(h)), lack of Brady material concerning surprise witnesses (Ground 1(f)),
and for failing to move for a continuance to prepare for surprise witnesses (Ground 1(f)). Revels
further argues that counsel should also have raised trial court error claims regarding
vindictiveness in sentencing (Ground 4), the issue of severance (Ground 1(c)), the suppression of
line-up identification (Ground 1(b)), actual innocence (Ground 3), and prosecutorial misconduct
(Ground 2).
Revels did not raise any claim of ineffective assistance of appellate counsel in his pro se
or amended Rule 29.15 motions. Accordingly, it has been procedurally defaulted. To overcome
his default, Revels appears to rely on Martinez (discussed above). Martinez, however, could not
save this ground because none of the matters complained of are substantial. Stated differently,

25

appellate counsel was not ineffective because Revels’ claims are meritless and, therefore, he was
not prejudiced by counsel’s failure to raise such claims.
First, as Respondent correctly points out, counsel was not ineffective for failing to raise
grounds of ineffective assistance of counsel on direct appeal because those claims are properly
brought in a Rule 29.15 motion. See Mo. Ct. R. 29.15(a); Missouri v. Leivan, 103 S.W.3d 425,
427-28 (Mo. Ct. App. 2003). Second, as to Revels’ claims of prosecutorial misconduct and
actual innocence, as is discussed below, those claims are not substantial under the Martinez
standard. Hence, appellate counsel was not ineffective for failing to raise them on appeal. Third,
Revels’ claims of trial court error rest on the same bases as his ineffective assistance of counsel
claims discussed above. The Court has found that none of those claims would entitle him to
federal habeas relief.
Finally, Revels also claims that he directed appellate counsel to raise a ground based on
judicial vindictiveness in sentencing. This argument is substantially similar to the argument
Revels advances independently herein as Ground 4. Revels contends that the trial judge gave
him a longer sentence because he told the judge that his counsel did not adequately represent his
interests at trial. In his affidavit, Revels contends –
[T]he trial judge specifically stated, “I was prepared to give you a 20-year
sentence as the state gave my codefendant Cedric Robinson but scratch that now
I’m giving you 30 years especially since one of your victims is strickened [sic] to
a wheelchair as the result of you and you are very ungrateful by complaining
about you [sic] attorney’s representation when she was actually fighting for you
and did the best she could.”
Pet’r Aff. at 2.
Revels does not cite to any support in the record for his argument. The record from
Revels’ sentencing hearing does not include any suggestion that the trial judge made any
statements even remotely resembling the remarks suggested in Revels’ affidavit. See Resp’t Ex.
26

B at 156-75. Rather, during the sentencing hearing, Revels claimed that counsel did not properly
investigate his case. Id. at 170-73. In response to all of Revels’ complaints, the court stated:
Following examination of defendant pursuant to Rule 29.07(b)(4) of the Missouri
Rules of Criminal Procedure, the Court finds that defendant has been advised of
his right to proceed under Rule 29.15 and understands this right and that
defendant has been represented at all critical stages in this case by [counsel] who
investigated this case, advised defendant concerning all significant aspects, kept
the defendant informed of the State’s recommendation, prepared defendant for
trial and tried this case in a reasonably competent and professional manner; that
there is no probable cause to believe defendant received ineffective assistance of
counsel.
Id. at 174-75. This statement stands in stark contrast to that offered by Revels.
Revels is not entitled to relief due to the alleged ineffective assistance of appellate
counsel, as alleged in Ground 1(i).
J.

Ground 1(j)

In Ground 1(j), Revels argues that post-conviction counsel was ineffective for failing to
raise, in the amended Rule 29.15 motion, all of the claims that Revels raised in his pro se motion.
Specifically, Revels contends that he instructed post-conviction counsel to raise an “actual
innocence” claim based on his allegation that the prosecution introduced the wrong gun at trial,
as well as a claim of ineffective assistance of counsel for allowing Robinson’s “surprise”
testimony to be introduced at trial. Respondent argues that Revels is not entitled to relief on this
ground because it raises an independent claim of ineffective assistance of post-conviction
counsel, which is impermissible under § 2254(i).
Section 2254(i) states, “[t]he ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254.” It appears that Respondent is correct in that Revels is attempting to
bring an independent claim of ineffective assistance of counsel. Thus, Revels is not entitled to

27

relief to the extent Ground 1(j) raises an independent claim of ineffective assistance of postconviction counsel.
Alternatively, and liberally construing his petition, Revels may be attempting to argue
that the ineffective assistance of his post-conviction counsel cures the procedural default of the
grounds he failed to raise and exhaust in state court. As discussed above, the Supreme Court
held in Martinez v. Ryan that:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, 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. 1309, 1320 (2012). Therefore, the default may be excused if any of the eliminated
grounds of ineffective assistance of trial counsel was “substantial,” “which is to say that the
prisoner must demonstrate that the claim has some merit.” Id. at 1318.
None of the omitted claims has any merit. Whether the evidence introduced at trial was
sufficient to support the verdict does not show actual innocence. It merely goes to the weight of
the evidence. Likewise, the Court has already found that Robinson’s “surprise” testimony does
not give rise to relief. Finally, the Court has addressed, even if briefly, the merits of every claim
of ineffective assistance of counsel raised herein and found each such claim to fall short of
meeting the deferential standard under Strickland.
As a matter of law, Revels is not entitled to relief on any of his claims of ineffective
assistance of post-conviction counsel, as actually raised or as liberally construed herein.
II.

Prosecutorial Misconduct Claims
As part of his second ground, Revels alleges seven incidents of what he characterizes as

prosecutorial misconduct. Prosecutorial misconduct does not warrant federal habeas relief unless
the misconduct infected the trial with enough unfairness to render a petitioner’s conviction a
28

denial of due process. Roberts v. Bowersox, 137 F.3d 1062, 1066 (8th Cir. 1998). To obtain
habeas relief, “[a] petitioner ‘must show that there is a reasonable probability that the error
complained of affected the outcome of the trial—i.e., that absent the alleged impropriety the
verdict probably would have been different.’” Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th
Cir. 2002) (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995)).
A.

Grounds 2(a)-2(c)

Grounds 2(a)-(c) are essentially duplicative of grounds 1(b), 1(f), and 1(h). Ground 2(a)
alleges a failure to disclose Brady material relative to “surprise witness” Cedric Robinson. This
ground fails for substantially the same reasons that Ground 1(f) fails. Ground 2(b) alleges that
the prosecution suborned the perjured testimony of Robinson relative to the .357 revolver. That
matter was thoroughly considered and rejected in considering Ground 1(h).

Ground 2(c)

contends that the prosecution knowingly relied upon unreliable identification procedures. This
ground was addressed above as part of Ground 1(b). Inasmuch as Grounds 2(a)-2(c) merely
restate Revels’ ineffective of assistance clams as prosecutorial misconduct claims, Revels is not
entitled to relief on any of these grounds for at least the same reasons discussed above. The
Court addresses the remainder of Revels purported prosecutorial misconduct claims below.
B.

Ground 2(d)

Ground 2(d) claims that the prosecution engaged in “multiplicity/duplicity when it
stacked several charges against” Revels. ECF No. 1-1 at 5; Revels’ Memorandum in Support of
his Petition. Revels contends that the
Prosecution violated his Due Process Rights by breaking one crime into four, thus
confusing the jury into believing [Revels] was/is a straight up menace to society
[whose] alleged modus operandi is to strip victims of their pants. Prosecution
relied upon a half baked story by Robinson whereas he claimed [Revels’] M.O.
was to rob victims of their pants, when in actuality it was a drug deal gone bad as
[Revels], Maurice Wilson, and Norman Sykes tussled over the gun, when Wilson
29

was shot in his buttocks and on his own accord, took off his shorts and ran.
Therefore, [Revels] shouldn't have been charged with Robbery nor should the
prosecution have allowed Robinson to testify to this.
Id.
Revels’ argument does not identify any meaningful claim of prosecutorial misconduct.
To the extent this argument reflects a claim of improper joinder of counts, the Missouri Court of
Appeals sufficiently addressed that issue, as noted above in reference to Ground 1(c) and 1(g).
To the extent it raises a sufficiency of the evidence argument, that is addressed in Ground 2(g)
below. 15
To the extent Ground 2(d) raises an issue other than joinder/severance or the sufficiency
of the evidence, it has been procedurally defaulted. Thus, to the extent Revels argument in this
Court claims the indictment against him was duplicitous or multiplicitous, those arguments have
been defaulted – no such claim was raised on direct appeal or in Revels’ 29.15 motion.
Even if Revels could cure his default, any duplicity or multiplicity claim would fail on
the merits. Duplicity occurs when the State charges a defendant with two or more distinct crimes
in a single count. See, e.g., United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997). Revels
has not shown how any count was duplicitous. Multiplicity occurs when an indictment charges a
single offense in multiple counts. See, e.g., United States v. Worthon, 315 F.3d 980, 983 (8th

15

Moreover, in reviewing Revels’ sufficiency of the evidence arguments on direct
appeal, the Missouri Court of Appeals rejected the argument that the State had “overreached by
‘piling on’ multiple charges.” Resp’t Ex. F at 7-8. In so doing, the Missouri Court of Appeals
applied state law to resolve the claim. Id. Nothing suggests that Missouri law in this regard is
unconstitutional. Thus, an argument premised on “piling on” would not be cognizable on federal
habeas review.
30

Cir. 200 (citation omitted). Revels has not offered any meaningful claim that any group of
counts in the indictment were unconstitutionally multiplicitous.16
Accordingly, Revels is not entitled to relief on Ground 2(f).
C.

Ground 2(e)

In Ground 2(e), Revels argues that the prosecutor committed misconduct by allowing
Officer Ahlbrand to give his opinion regarding whether a person caught driving a stolen car is
necessarily the same person who stole the car. Revels claims that the testimony was prejudicial
and prevented him from claiming that Shelby Polk was the actual perpetrator of the July 2, 2003,
incident. Respondent argues that whether such evidence is admissible is a question of state law.
Although Revels placed his argument is Ground 2(e) under the category of prosecutorial
misconduct, it is more accurately characterized as a claim of trial court error. A prosecutor does
not necessarily commit misconduct by eliciting opinion testimony from a lay witness. It is left to
defense counsel to object to a potentially improper question and for the trial court to rule the
objection.
Revels raised a substantially similar argument in his direct appeal. In particular, Revels
argued that “allow[ing] Officer Ahlbrand to speculate as to whether and why stolen cars may be
found in the possession of someone other than the robber [] was improper opinion testimony by a
lay witness.” Resp’t Ex. F at 8. The appellate court noted that Revels had not preserved “his

16

To his credit, Respondent has parsed Ground 2(d) and noted that Revels was convicted
of robbery and armed criminal action relative to the theft of the Grand Cherokee possessed by
Sykes and Wilson (Counts 5 and 6), as well as robbery and armed criminal action relative to the
theft of Sykes pants (Counts 7 and 8). See Resp’t Resp. at 44-45 (ECF No. 13). The Court is not
persuaded that charging Revels with two distinct robberies, on these facts and pursuant to
Missouri law, raises a constitutional double jeopardy concern that would have merited
consideration either on direct appeal or as part of a Rule 29.15 motion.
31

claim that the testimony was improper opinion of a lay witness,” and it reviewed that claim for
plain error. Id. at 9. The court found that Revels
mischaracterize[d] Officer Ahlbrand’s testimony. Ahlbrand was not asked to
speculate or offer an opinion as to why Polk was driving Wachowe’s stolen car.
The questions asked of Officer Ahlbrand were intended to elicit his observations
from twenty-one years of law enforcement experience as to why a car stolen by
one person would be recovered in the possession of another person.
Id. at 10.
Until recently, there was uncertainty whether a state court’s plain error review of a
defaulted claim cured or otherwise remedied a procedural default for federal habeas purposes.
The Eighth Circuit has now made clear that a state court’s plain error review of an unpreserved
or waived claim does not serve to excuse a procedural default. See Clark v. Bertsch, 780 F.3d
873, 876-77 (8th Cir. 2015) (resolving intra-circuit split).
In Revels’ case, the Missouri Court of Appeals concluded that he failed to preserve any
claim of error relative to Officer Ahlbrand’s alleged improper lay opinion. Thus, it appears that
Revels defaulted Ground 2(e). Under Bertsch, the fact that the Missouri Court of Appeals
reviewed Revels’ arguments for plain error does not cure the default. Accordingly, Revels’
Ground 2(e) is procedurally defaulted.
Even if Revels had not defaulted this ground, it would still fail. Whether evidence was
admissible under Missouri’s evidence rules does not create a federal constitutional issue that is
cognizable under the Court’s limited habeas jurisdiction. Estelle v. McGuire, 502 U.S. 62, 67
(1991). “A state court’s evidentiary rulings can form the basis for federal habeas relief under the
due process clause only when they were so conspicuously prejudicial or of such magnitude as to
fatally infect the trial and deprive the defendant of due process.” Parker v. Bowersox, 94 F.3d
458, 460 (8th Cir.1996).

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As noted by the Missouri Court of Appeals, Officer Ahlbrand’s testimony was drawn
from twenty-one years of law enforcement experience. Moreover, Officer Ahlbrand’s testimony
was not the only testimony at trial explaining why someone other than the original car thief may
later end up driving the stolen vehicle. For example, Cedric Robinson testified that he swapped
stolen cars with other persons. See Resp’t Ex. A at 430, 460.
Thus, even if Revels had not defaulted Ground 2(e), Officer Ahlbrand’s testimony did not
deprive Revels of due process, as he has failed to demonstrate that a manifest injustice occurred.
The decision of the state court was not contrary to, or an unreasonable application of, clearly
established federal law. Moreover, Officer Ahlbrand’s testimony was not the only testimony
regarding swapping stolen vehicles. As a result, Revels is not entitled to federal habeas relief on
Ground 2(e).
D.

Ground 2(f)

In Ground 2(f), Revels argues that the prosecutor committed misconduct by presenting
contradictory theories of guilt during pretrial discussions and at trial. In particular, Revels
contends that the prosecution presented conflicting theories regarding the .357 revolver he pled
guilty to possessing illegally, and the gun used in the robberies. Respondent claims that Revels’
claim is contradicted by the record. Having reviewed the record in detail, the Court concludes
that Respondent is correct.
Revels’ argument rests on the prosecutor’s pretrial acknowledgement that the State had
not used ballistics evidence to connect the .357 revolver seized from Revels to the robbery and
shooting on August 9, 2003. There is no indication, however, that there was ballistics evidence
showing that the .357 revolver was not used in the robbery. Rather, there was simply no
ballistics evidence at all. As discussed above in reference to Ground 1(h), the State connected

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the .357 revolver (State’s Exhibit 24B) seized from Revels to the gun used in the August 9th
robbery through the testimony of Cedric Robinson, as corroborated in part by Officer Menendez
and other victim witnesses who testified that Revels robbed them using a .357 gun. Therefore,
Revels has not shown any contradictory theory or improper prosecutorial conduct relative to the
.357 revolver. The prosecutor’s position was consistent from the pretrial hearing (no ballistics
evidence), through opening statement, and through testimony of victims Sykes and Wilson,
cooperating witness Robinson, and expert testimony of Officer Menendez. Therefore, Revels is
not entitled to relief on Ground 2(f).
E.

Ground 2(g)

In Ground 2(g), Revels argues that the prosecutor committed misconduct by failing to
introduce sufficient evidence to support the verdict. Respondent contends that the Missouri
Court of Appeals’ finding that the evidence was sufficient to support the verdict was not
unreasonable or contrary to clearly established federal law.
In reviewing a claim of insufficiency of the evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In applying this, the scope of review
is extremely limited. See Nash v. Russell, 807 F.3d 892, 897 (8th Cir. 2015) (describing Jackson
as a “narrow standard”). The Court must presume that the trier of fact resolved all conflicting
inferences in the record in favor of the state, and the Court must defer to that resolution.
Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003).
On direct appeal, Revels argued that the evidence was insufficient to support the
convictions for first-degree robbery and armed criminal action for forcibly stealing Sykes’s pants

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– Counts 7 and 8. Resp’t Ex. F at 5. 17 The appellate court applied the correct standard and
found the evidence to be sufficient. Specifically, the court recited Sykes’s testimony and found
that the “evidence that Sykes handed his pants over to [Revels] is sufficient to show that [Revels]
appropriated Sykes pants [sic] and a taking occurred.” Id. at 7. Sykes’s testimony that Revels
took his pants at gunpoint was sufficient for a reasonable juror to find that Revels robbed Sykes.
Revels is not entitled to relief on Ground 2(g).
III.

Actual Innocence – Ground 3
In Ground 3, Revels argues that he is actually innocent because the prosecution did not

present any ballistic evidence regarding the .357 revolver. Ground 3 is another form of the same
arguments the Court rejected in the context of Revels’ ineffective assistance of counsel and
prosecutorial misconduct grounds – Grounds 1(H), 2(b), and 2(f). For similar reasons, Revels
would not be entitled to relief on Ground 3. For clarity, however, the Court will address Revels’
“actual innocence” ground.
The term “actual innocence” can have different meanings in the federal habeas context.
“Actual innocence” can refer to either a “gateway claim” or a “freestanding claim.” See Nash,
807 F.3d at 898-99. A gateway claim of actual innocence refers to a means by which a prisoner
can obtain federal review of a procedurally defaulted claim. Id. “To obtain review of an
otherwise procedurally barred claim, a petitioner must satisfy a two-part test: (1) the ‘allegations
of constitutional error must be supported with new reliable evidence not available at trial’; and
(2) ‘it is more likely than not that no reasonable juror would have convicted him in light of the
new evidence.’” Id. at 899 (quoting Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)
(citing Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). The Eighth Circuit has “defined ‘new
17

To the extent Revels seeks federal habeas review on a broader basis than his direct
appeal, Ground 2(g) is defaulted.
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evidence’ as evidence that ‘was not available at trial and could not have been discovered earlier
through the exercise of due diligence.’” Id. (quoting Amrine, 238 F.3d at 1028).
In Revels’ case, he has not identified any new evidence that was not available to him at
trial. Thus, he has not established a gateway claim of actual innocence that would cure any
procedural default. Moreover, Revels’ argument rests on a notion that the only evidence linking
him to the crimes was the .357 revolver seized from him and identified by cooperating witness
Robinson. That is not correct. As noted repeatedly herein, all three victims positively identified
Revels as the person who robbed him at gunpoint. Multiple witnesses identified the weapon as a
.357 model. Thus, even if the gun seized from Revels after the robberies was not the exact same
weapon as the one he used in the August 9th robbery, he cannot meet his burden of showing that
no reasonable juror would have convicted him if Robinson’s testimony regarding the gun had
been more limited.
Finally, the Court has addressed, even if briefly, the substance of Revels’ defaulted
grounds and found each of those grounds lacking in merit. Therefore, even if Revels had made a
gateway claim of actual innocence, he would still not be entitled to relief on any of his
procedurally defaulted grounds.
The Court will also consider Ground 3 as an attempt to raise a “freestanding claim” of
actual innocence. A freestanding claim of actual innocence is one that is not limited to curing a
procedural default. It is not entirely clear whether such a claim may form the basis of federal
habeas relief (at least in a non-capital context). Rather, “[t]he Supreme Court has not decided
whether a persuasive demonstration of actual innocence after trial would render unconstitutional
a conviction and sentence that is otherwise free of constitutional error.” Dansby v. Hobbs, 766
F.3d 809, 816 (8th Cir. 2014) (citing House v. Bell, 547 U.S. 518, 554-55 (2006)). What is clear,

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however, is “that if the Supreme Court were to grant relief on this type of claim, ‘the threshold
… would be extraordinarily high [and] would require more convincing proof than the gateway
standard.’” Nash, 807 F.3d at 899 (quoting Dansby, 766 F.3d at 816). Because Revels cannot
meet the gateway standard of actual innocence, he certainly cannot satisfy any possible
freestanding standard that might be applied to his case.
Revels is not entitled to relief on Ground 3.
IV.

Vindictive Sentencing – Ground 4
For Ground 4, Revels argues, as he does in Ground 1(i), that the trial court sentenced him

“out of the spirit of vindictiveness” because Revels said during sentencing that he thought his
counsel was ineffective. Like Ground 1(i), Ground 4 is refuted by the record. No further
discussion is required. Therefore, Revels is not entitled to relief on Ground 4.
Conclusion
The Court concludes that Revels is not entitled to federal Habeas relief on any of the
grounds presented in his Petition. Revels has procedurally defaulted most of his claims and has
not alleged any lawful excuse for such defaults.

As for the grounds Revels has properly

exhausted and presented for federal review, he has not satisfied his burden of showing that his
state court proceedings were contrary to, or involved an unreasonable application of, clearly
established federal law, or was based upon an unreasonable determination of the facts presented
in those proceedings. See 28 U.S.C. § 2254(d).
Moreover, an evidentiary hearing is not warranted because the existing “record already
contains all the facts necessary to resolve [Revels’] claim[s].” Johnston v. Luebbers, 288 F.3d
1048, 1060 (8th Cir. 2002) (explaining that habeas petitioners are entitled to evidentiary hearings
only under narrow circumstances). See also 28 U.S.C. § 2254(e)(2).

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Finally, Revels has failed to make a substantial showing of the denial of a constitutional
right, which requires a demonstration “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Khaimov v. Crist, 297 F.3d
783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of
appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED, and
this action is DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate Judgment will be issued forthwith.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

Dated this 2nd day of February, 2016

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