Speer v. Wallace

Filing 15

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Ernest Speer. 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 dismiss ed 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. Signed by Magistrate Judge Abbie Crites-Leoni on 2/26/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERNEST SPEER,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 4:12CV2220 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Ernest Speer for a Writ of Habeas Corpus
under 28 U.S.C. ' 2254.
I. Procedural History
Speer is currently incarcerated at Southeast Correctional Center in Charleston, Missouri,
pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri.
(Respt’s Ex. B at 150-55.)
On December 3, 2008, a jury found Speer guilty of murder in the first degree and armed
criminal action. (Respt’s Ex. A at 534.) The court sentenced Speer to consecutive terms of life
imprisonment without parole for the murder in the first degree offense and life imprisonment for
the armed criminal action offense. (Respt’s Ex. B at 150-55.)
Speer raised two points on direct appeal of his convictions. (Respt’s Ex. D.) In his first
point, Speer argued that the trial court erred in overruling Speer’s objection to the testimony of
state witness Tina Schniepp-Babel, the victim’s sister, about an incident between Speer and the
victim in the St. Charles County Courthouse. Id. at 11-12. In his second point, Speer argued that
the trial court plainly erred in overruling Speer’s Motion to Suppress Statements and admitting
into evidence his alleged statement that he deserved to die because of what he had done. Id. at
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13-14. On October 20, 2009, the Missouri Court of Appeals affirmed Speer’s convictions.
(Respt’s Ex. F.)
Speer filed a pro se motion for post-conviction relief under Rule 29.15. (Respt’s Ex. H at
4-29.) After appointment of counsel, Speer filed an amended post-conviction relief motion and
request for evidentiary hearing, in which he alleged the following ineffective assistance of counsel
claims: (1) trial counsel had an actual conflict of interest; (2) trial counsel failed to call Speer to
testify at trial in his defense after he indicated a desire to testify; (3) trial counsel failed to subpoena
and call Norman Showers and Ricky Fields as alibi witnesses at trial; and (4) trial counsel failed to
subpoena and call Melissa Lee as a witness at trial. (Respt’s Ex. I at 1-46.) Speer also filed a
Motion for Change of Judge or Disqualification, in which he argued that he could not have a fair
and impartial post-conviction proceeding before Judge John Garvey based on Judge Garvey’s
comments at Speer’s sentencing hearing. Id. at 35-39. Speer’s Motion for Change of Judge was
denied, but his request for an evidentiary hearing was granted. Id. at 40. An evidentiary hearing
was held on Speer’s motion on November 5, 2010, at which Speer, trial counsel, Norman Showers,
Ricky Fields, and Melissa Lee testified. (Respt’s Ex. G.) On November 30, 2010, the motion
court denied Speer’s amended motion. Id. at 42-52.
Speer raised five points in his appeal from the denial of post-conviction relief. (Respt’s
Ex. J.) In his first point, Speer argued that the motion court abused its discretion in denying
Speer’s request for a change of judge. Id. at 15. In his second point, Speer argued that he was
denied his right to conflict-free counsel and effective assistance of counsel in that trial counsel had
an actual conflict of interest. Id. at 16. In his third point, Speer argued that he was denied
effective assistance of counsel when trial counsel failed to call Speer to testify at trial in his
defense after he indicated a desire to do so. Id. at 18. In his fourth point, Speer argued that he
was denied effective assistance of counsel when trial counsel failed to subpoena and call Norman
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Showers and Ricky Fields. Id. at 19. In his fifth point, Speer argued that he was denied effective
assistance of counsel when trial counsel failed to subpoena and call Melissa Lee as a witness at
trial. Id. at 20. The Missouri Court of Appeals affirmed the decision of the motion court.
(Respt’s Ex. L.)
Speer filed the instant Petition on November 30, 2012. (Doc. 1.) Speer raises the
following grounds for relief: (1) the trial court erred in overruling his objection to the testimony of
Tina Schniepp-Babel regarding an incident between Speer and the victim in the St. Charles County
Courthouse; (2) the trial court plainly erred in overruling Speer’s Motion to Suppress Statements
and admitting his statement “After what I’ve done, I don’t deserve to live”; (3) the motion court
abused its discretion in denying Speer’s request for a change of judge based on Judge Garvey’s
comments during sentencing; (4) he was denied his right to conflict-free counsel and effective
assistance of counsel in that trial counsel had an actual conflict of interest; (5) trial counsel were
ineffective when they failed to call Speer to testify at trial in his defense after he indicated a desire
to do so; (6) trial counsel were ineffective when they failed to subpoena and call Norman Showers
and Ricky Fields as alibi witnesses at trial; and (7) trial counsel were ineffective for failing to
subpoena and call Melissa Lee as a witness at trial. (Doc. 1.)
On April 1, 2013, Respondent filed a Response to Order to Show Cause, in which he
argues that Grounds One and Two are procedurally defaulted, and all of Speer’s claims fail on
their merits. (Doc. 9.)
II. Facts
The sufficiency of the evidence is not in dispute. The Court’s summary of the facts below
is taken directly from the decision of the Missouri Court of Appeals affirming the denial of
post-conviction relief. (Respt’s Ex. L at 2-3)
Speer and Sara Speer (“Victim”) were married in 2002. In December 2006, problems
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began in the marriage. Victim’s sister, Tina Schniepp-Babel, who is an attorney, helped Victim
file for divorce. While at the St. Charles County Courthouse in connection with the divorce,
Speer and Victim had an argument, during which Speer lunged at Victim and threatened to hurt
her. Both Speer and Victim were employed at Tocco Foods, a wholesale food distributor located
in the City of St. Louis. Speer normally started his work around 3:30 or 4:00 a.m. and Victim
normally started work around 8:00 a.m.
On October 24, 2007, Victim entered the parking lot of Tocco Foods at approximately 8:00
to 8:10 a.m. Shortly after Victim arrived at work, two Tocco Food employees, Joe Mowry
(Mowry) and Peter Tocco (Tocco), heard a scream and two gunshots. Mowry called 9-1-1 while
Tocco went to the front dock to investigate. Tocco found Speer sitting on a bench on the front
dock smoking a cigarette. Tocco asked Speer if he heard a noise and Speer stated that the noise
was probably a truck backfiring twice. Tocco went back inside but, after discussing the noise
with Mowry, went back outside to take another look. Tocco found Victim dead in the parking lot.
Victim had been shot twice.
Shortly thereafter, Speer was seen leaving the “paper room,” a room where Tocco Foods
stored paper and chemicals. Police officers searched the premises and found a gun, two
magazines, and cartridges hidden behind a freezer in the “paper room.” Ballistics testing
indicated that spent casings found at the scene and one of the bullets recovered from Victim’s body
were fired from the gun found in the paper room. Speer’s DNA was recovered from the gun’s
trigger and grip.
The jury convicted Speer on both counts and the court sentenced Speer to two consecutive
life sentences without the possibility of parole.

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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).
The Supreme Court construed Section 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. at 410.
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IV. Procedural Default
Respondent contends that Speer procedurally defaulted Grounds One and Two by failing
to preserve these claims for review on direct appeal. In Ground One, Speer argues that the trial
court erred in overruling his objection to the testimony of Victim’s sister regarding an incident
between Speer and Victim in the St. Charles County Courthouse. In Ground Two, Speer argues
that the trial court plainly erred in overruling Speer’s Motion to Suppress Statements and
admitting his statement “After what I’ve done, I don’t deserve to live.”
“Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254
proceeding may consider only those claims which the petitioner has presented to the state court
in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086–87 (8th
Cir. 2012) (quotation marks omitted). “In Missouri, a claim must be presented at each step of
the judicial process to avoid default.” Id. at 1087.
Until recently, there was a split within the Eighth Circuit regarding whether plain-error
review by a state appellate court waived a procedural default, and courts were permitted to
choose which line to follow. Clark v. Bertsch, 780 F.3d 873, 876 (8th Cir. 2015) (comparing
Toney v. Gammon, 79 F.3d 693, 699 (8th Cir. 1996) and Hayes v. Lockhart, 766 F.2d 1247, 1253
(8th Cir. 1985) (state court's plain-error review does not excuse procedural default) with Thomas
v. Bowersox, 208 F.3d 699, 701 (8th Cir. 2000), Bannister v. Armontrout, 4 F.3d 1434, 1445 n. 6
(8th Cir. 1993) and Williams v. Armontrout, 877 F.2d 1376, 1379 (8th Cir. 1989) (state court's
plain-error review permits federal review)). In 2011, the Eighth Circuit, sitting en banc,
directed that, in the event of an intra-circuit split, future panels were to “determine and follow the
earliest precedent.” Id. (citing Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011)).
The Court then determined that the earliest controlling panel opinion on the effect of plain-error
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review is Hayes, which held that such claims are procedurally defaulted and unreviewable,
absent cause and prejudice. Id. (quoting Hayes, 766 F.2d at 1253).
The Missouri Court of Appeals found that Speer failed to preserve the claim raised in
Ground One for review by not properly raising it in his motion for new trial, and limited their
review to plain error review. (Respt’s Ex. F at 2-3.) Speer conceded on direct appeal that he
failed to preserve the claim contained in Ground Two by not objecting when the state introduced
his statements into evidence, and sought plain error review only. (Respt’s Ex. D at 13-14,
21-22.) The court accordingly reviewed this claim for plain error. (Respt’s Ex. F at 5.)
Speer does not attempt to excuse his procedural default on the basis of cause and
prejudice or manifest injustice. Thus, Speer’s claims in Grounds One and Two are procedurally
defaulted.
V. Speer’s Claims
As previously noted, Speer asserts seven grounds for relief. The undersigned will
discuss Speer’s grounds for relief in turn.
1.

Ground One
Speer argues that the trial court erred in overruling his objection to the testimony of

Victim’s sister regarding an incident between Speer and Victim in the St. Charles County
Courthouse. Speer contends that admission of the testimony regarding Speer’s alleged prior
misconduct violated his right to due process. The Court has already found that this claim is
procedurally defaulted. It fails on its merits as well.
As the Supreme Court has emphasized, “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions,” such as the admissibility of
evidence at trial. See Estelle v. McGuire, 502 U.S. 62, 68 (1991). “In conducting habeas
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review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Id. Evidentiary issues can, however, form the basis for habeas
relief if the error constitutes an independent constitutional violation. See Bounds v. Delo, 151
F.3d 1116, 1119 (8th Cir. 1998). “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.” Id. (quoting Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996)). To meet this
standard, a petitioner must show a reasonable probability that the evidentiary errors affected the
trial’s outcome. See Meadows v. Delo, 99 F.3d 280, 283 (8th Cir. 1996).
At trial, Victim’s sister, Ms. Schniepp-Babel, testified over Speer’s objection that the
following occurred at the St. Charles County Courthouse:
[Victim] and I were walking toward the first floor, and we ran into [Speer] and
his—[Speer] and his attorney, Amanda Verett. And [Victim] and he were
talking, and he was becoming more agitated and got very angry and kind of lunged
forward at her and said he was going to hurt her. Whereupon [Victim] was very
scared, and she—I kind of pushed her back away from him.
[Defense Counsel]: And what, if anything was done to get the defendant away
from her?
[Ms. Schniepp-Babel]: Well, she—his attorney tried to move him away, and
[Victim] tried to get to the other—to the bailiffs and to the police, and so she went
into a room very quickly, and I followed, and he was—he followed after her, and
the door shut, and he was looking at her through one of those windows in the door,
and he—I was afraid because of just the way he was looking at her. And he was
redfaced and shaking his head, and she had a Manila envelope that she was trying
to hide behind.
(Respt’s Ex. A at 194.)
Speer raised this claim in his direct appeal. The Missouri Court of Appeals, reviewing
for plain error, held as follows:
Generally, the admission of evidence of prior uncharged misconduct is
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inadmissible in order to demonstrate the propensity of a defendant to commit such
crimes. State v. Haslett, 283 S.W.3d 769, 781 (Mo. App. S.D. 2009). However,
“[e]vidence of uncharged misconduct is admissible if it tends to establish motive,
intent, identity, the absence of mistake or accident, or a common scheme or plan.”
State v. Turner, 242 S.W.3d 770, 778 (Mo. App. S.D. 2008), see also State v.
Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993).
The testimony presented in this case demonstrated Defendant threatened
the victim and displayed hostility toward her during their dissolution proceedings.
Accordingly, it was admissible in that it tended to establish Defendant’s guilt of
the charged offenses because the evidence established his hostility toward the
victim and his motive to injure her. The trial court did not commit plain error in
its admission of Witness’ testimony. Point denied.
(Respt’s Ex. F at 3-4.)
Speer fails to demonstrate a due process violation resulting from the admission of Ms.
Schniepp-Babel’s testimony. The Missouri Court of Appeals found that the trial court did not err
in admitting evidence of Speer’s uncharged misconduct because the evidence was relevant to
establish Speer’s motive to harm Victim. Further, in light of the significant amount of evidence
presented regarding Speer’s guilt, including DNA evidence, Speer cannot demonstrate that the
outcome of the trial would have been different had the Victim’s sister’s testimony been excluded.
The state court determinations were not based upon unreasonable determinations of the facts or
misapplications of clearly established federal law. Thus, Ground One will be denied.
2.

Ground Two
In Ground Two, Speer argues that the trial court plainly erred in denying his Motion to

Suppress Statements and admitting his statement “After what I’ve done, I do not deserve to live.”
Speer alleges that the police coerced this statement from him by exploiting his nicotine addiction.
Prior to questioning Speer at the police department, officers advised him of his Miranda
rights. (Respt’s Ex. A at 304-05, 406-08.) Speer signed a written waiver of his rights to remain
silent and to have an attorney present during questioning. Id. at 407. After more than an hour of
questioning, Speer asked to speak to his attorney, and the interrogation ended. Id. at 411-13.
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Three officers testified that, when Speer was being escorted from police headquarters to the
Justice Center after the interrogation had ended, Speer asked one of the officers for a cigarette.
(Respt’s Ex. A at 162-63, 308, 330.) Speer was told he could not have a cigarette because he was
handcuffed at the time, and because he could not smoke in the Justice Center. Id. The officers
testified that Speer then stated “After what I’ve done, I do not deserve to live” (Id. at 163, 330); or
“After what I did today, I don’t deserve to live” (Id. at 308).
The Missouri Court of Appeals held as follows regarding Speer’s claim:
Defendant clearly was informed of his rights, and there is no evidence that
he was incapable of understanding those rights. When Defendant was being
moved from the police department to the Justice Center to be processed,
Defendant voluntarily initiated the conversation with Officer, requesting to smoke
a cigarette. Officer responded that he would not acquiesce to Defendant’s request
because Officer would not remove the handcuffs and once they reached the Justice
Center, there was a no smoking policy. Defendant then retorted that, “After what
I did today, I don’t deserve to live.”
Officer’s statement was merely responding to a question Defendant
posited and was not intended to induce Defendant to make additional statements.
Defendant voluntarily injected his comments that he was guilty. The trial court
did not plainly err in allowing the admission of Officer’s testimony. Point
denied.
(Respt’s Ex. F at 5.)
The Fifth Amendment ensures an accused the right to the presence of legal counsel during
a custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 474 (1966).

However, a

subsequent waiver can be established if “the accused himself initiates further communication,
exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
“Any statement given freely and voluntarily without any compelling influences is, of course,
admissible in evidence.” Miranda, 384 U.S. at 478. Therefore, when an accused in custody
requests a lawyer and subsequently makes a statement to the police, the question is whether the
accused was interrogated. Rhode Island v. Innis, 446 U.S. 291, 298 (1980). An accused’s
statement is not the product of a prohibited interrogation unless it is in response to questions that
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the police know or “should know are reasonably likely to elicit an incriminating response from
[the] suspect.” Id. at 301.
The Missouri Court of Appeals found that Speer’s statement was not a product of an
interrogation but, rather, was a statement Speer voluntarily made after initiating conversation
with the officers. Speer made a spontaneous statement after the interrogation had ended.
Considering the evidence in the record, the court’s determination was not based upon an
unreasonable determination of the facts or a misapplication of federal law. Thus, Ground Two
will be denied.
3.

Ground Three
In Ground Three, Speer argues that the motion court abused its discretion in denying

Speer’s request for a change of judge based on Judge Garvey’s comments during sentencing.
Speer contends that he was prejudiced by Judge Garvey’s statements because they reflected his
anger against Speer and his sympathy for Victim, and showed he had prejudged the issue of
ineffective assistance of counsel.
At Speer’s sentencing hearing, prior to imposing Speer’s sentence, Judge Garvey stated:
All right. I have a couple things to say after witnessing this trial. The
first thing is, your premeditation on this case was cold-blooded, was deliberative,
was well thought out. Somewhat. You want to blame it on a neighborhood,
maybe even a city, the place that you picked to commit this murder. But what’s
interesting is your post meditation was just the worst. I don’t think you ever
contemplated that a gun makes a loud sound, that people call the police when a
murder happens, and you never anticipated the unbelievable and excellent police
work done in this case. That never crossed your mind.
And so what we have here is you taking the life of this wonderful woman.
This mother, daughter, wife, sister. That’s what you did. So for that, I’m going
to max you out. But I’m finished with you now. What I want to talk about now
is the family who I watched throughout this trial. And the judge has a different
perspective during a trial when a family is involved, because I get to see the
family. And they had to go through this for these three or four days, and it was
horrible. It was horrible. But they suffered it with dignity and class and grace.
And their daughter, sister, mother would be very proud of the way that they acted
in this case. You didn’t even deserve this woman. You really didn’t. Or this
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family.
(Respt’s Ex. A at 539-40.)
Speer filed a motion for change of judge when his post-conviction motion was assigned to
Judge Garvey. (Respt’s Ex. H at 35-39.) The motion was denied. Id. at 40. Speer raised this
claim in his appeal from the denial of post-conviction relief. The Missouri Court of Appeals
held:
Although Judge Garvey’s remarks were critical of [Speer], a judge’s
critical or hostile remarks to a party do not support a claim of bias or partiality;
instead the comments must be considered in the context of all the judge’s
statements and the circumstances before the judge when the statements were
made. Haynes, 937 S.W.2d 199 at 204. Considered in context, Judge Garvey’s
remarks do not display a disqualifying bias or prejudice, particularly on the issue
of ineffective assistance of counsel, but merely the court’s rationale for imposing
the maximum sentence.
Furthermore, [Speer] fails to allege the existence of any extrajudicial
source of disqualifying bias or prejudice; therefore, the motion court did not abuse
its discretion in denying [Speer]’s motion for change of judge. Based on the
foregoing, [Speer]’s Point I is denied.
(Respt’s Ex. L at 6-7.)
For a judge to be disqualified on the basis of personal bias and prejudice, the bias “must
stem from an extrajudicial source and result in an opinion on the merits on some basis other than
what the judge learned from his participation in the case.” U.S. v. Grinnell Corp., 384 U.S. 563,
583 (1966). The Court explained this ‘extrajudicial source’ concept as follows: “The judge who
presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the
defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not
thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were
properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as
in a bench trial) necessary to completion of the judge’s task.” Liteky v. U.S., 510 U.S. 540,
550-551 (1994).
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In this case, there is no indication that the comments made by the trial judge derive from
any extrajudicial source. In fact, the judge himself indicated that his comments resulted from
witnessing the trial and observing Victim’s family during the course of the trial. The comments
were made in the context of explaining Speer’s sentence. There is no support in the record for
Speer’s claim that Judge Garvey’s statements at sentencing revealed he had an opinion on the
issues of ineffective assistance of counsel. Thus, the state court’s decision that Judge Garvey’s
remarks did not display a disqualifying bias or prejudice on the issue of ineffective assistance of
counsel was not contrary to federal law. This point will be denied.
Ineffective Assistance of Counsel Claims: Grounds Four through Seven
In order to state a claim of ineffective assistance of trial counsel, Speer must meet the
Strickland standard: he 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, Speer 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, 556 U.S. 111, 123
(2009) (internal quotations and citations omitted).
4.

Ground Four
In Ground Four, Speer argues that he was denied his right to conflict-free counsel and

effective assistance of counsel in that trial counsel had an actual conflict of interest. Speer
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contends that he had a financial conflict of interest with counsel due to disputes about finances
and that this conflict of interest caused counsel to fail to properly investigate the case.
Speer raised this claim in his post-conviction relief motion and in his appeal from the
denial of post-conviction relief. A hearing was held on Speer’s post-conviction relief motion, at
which Speer and counsel testified. (Respt’s Ex. G.) Speer testified that two different attorneys
represented him during the trial. Id. at 91. Speer testified that, at one point, counsel informed
him that his case was “at a standstill” until Speer paid them an additional $25,000. Id. at 92.
Speer stated that on another occasion closer to trial, counsel requested an additional $5,000 or
$6,000. Id. at 94. Speer testified that counsel threatened to withdraw if they did not receive the
additional funding. Id. at 95. Counsel testified that they did request additional funding during
their representation of Speer, and that it was explained to Speer at the beginning of the
representation that he would pay additional funds after the initial retainer. Id. at 17, 48-49.
Counsel testified that they did not ever threaten to put the case on hold or withdraw from the case
if the additional funding was not received. Id. at 18-19, 49-50. Counsel testified that they did
not believe their requests for additional funds affected their performance. Id. at 20, 49. One of
Speer’s attorneys stated that he thought he was “paid a lot of money, so [he] worked hard on the
case.” Id. at 49. The motion court found that Speer failed to show an actual conflict of interest
or any adverse effect on his attorneys’ performance. (Respt’s Ex. H at 47.)
The Missouri Court of Appeals also rejected Speer’s claim. The court stated:
Here, the record shows that [Speer]’s trial attorneys zealously defended
[Speer]. Counsel filed numerous pre-trial motions including a Motion to
Suppress [Speer]’s Statements and several discovery motions. Counsel
performed a substantial pre-trial investigation, including hiring a private
investigator to review the scene with counsel, reviewing the extensive discovery,
taking depositions, and meeting with [Speer] at least 10 times prior to trial.
Furthermore, following the State’s presentation of its case, [Speer] testified that he
was satisfied with his attorneys’ representation.
[Speer] has failed to demonstrate that an actual conflict of interest existed
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and that any alleged conflict affected the performance of counsel. “At a
post-conviction relief evidentiary hearing, the motion court determines the
credibility of the witnesses and is free to believe or disbelieve the testimony of any
witness, including that of the Movant.” Hurst v. State, 301 S.W.3d 112, 117 (Mo.
App. E.D. 2010). The motion court clearly found [counsel]’s testimony to be
more credible than that of [Speer]. [Speer] does not provide this Court with any
reason why we should disregard the deference given to the motion court’s
findings. The motion court did not err in finding that no financial conflict of
interest or any alleged conflict adversely affected counsel’s performance.
(Respt’s Ex. L at 9-10.)
“A claim for ineffective assistance of counsel arising from a conflict of interest does not
require proof of the prejudice component of the Strickland test. Rather, the petitioner can
establish a Sixth Amendment violation if he can demonstrate that ‘an actual conflict of interest
adversely affected his lawyer's performance.’” Johnson v. Norris, 207 F.3d 515, 519 (8th Cir.
2000) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). To make this showing, “the
petitioner must prove both that his attorney acted under an actual conflict of interest, as opposed
to just a potential one ... and that the conflict of interest actually affected the adequacy of the
representation.” Id. (citations omitted).
Speer failed to show that counsel had an actual conflict rather than a potential one or that
the alleged conflict affected their performance. Counsel testified that it was their standard
practice to receive an initial retainer and ask for additional funds as the case progressed. Counsel
testified that they did not threaten to withdraw if they did not receive the additional funds, and that
the request for additional funds did not affect their performance. There is no evidence in the
record that the alleged financial conflict affected counsel’s performance, as they filed a plethora
of pre-trial motions, including the Motion to Suppress Statements discussed above. (Respt’s Ex.
B at 1-8.) Speer never complained of counsel’s performance or alleged conflict of interest to the
trial court at any point prior to or during the trial. While the jury deliberated, the court
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questioned Speer regarding the assistance of trial counsel. (Respt’s Ex. A at 531-33.) Speer
testified that he was satisfied with the representation provided by counsel. Id. at 532. The
appellate court’s decision was not unreasonable or contrary to clearly established federal law.
As a result, Ground Four will be denied.
5.

Ground Five
In Ground Five, Speer argues that trial counsel were ineffective when they failed to call

Speer to testify at trial in his defense after he indicated a desire to do so.
Speer raised this claim in his post-conviction relief motion and in his appeal from the
denial of post-conviction relief. At the hearing on his post-conviction relief motion, Speer
testified that he told his attorneys during the trial that he wanted to testify. (Respt’s Ex. G at 97.)
Speer testified that one of his attorneys told him “Me and the boys in the office have discussed all
this, and you’re not testifying.” Id. Speer stated that his attorneys were concerned about his
criminal history, which included felony convictions for armed burglary and armed kidnapping.
Id. at 97-98. Speer acknowledged that the trial judge questioned him regarding his right to
testify after the state rested, and that he testified it was his decision not to testify. Id. at 121.
Speer testified that, although he represented to the trial judge that it was his decision not to testify,
he chose not to testify under the advisement of his attorneys. Id. Counsel testified that he
advised Speer not to testify due to the “severe crimes of violence against women on his criminal
history.” Id. at 51. Counsel further testified that it was ultimately Speer’s decision not to
testify. Id. at 52.
The motion court denied Speer’s claim, finding that it was Speer’s decision not to testify,
and that counsel’s advice not to testify was wise trial strategy. (Respt’s Ex. H at 49.) The
Missouri Court of Appeals affirmed, holding:
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“Generally, trial counsel’s advice whether to testify is a matter of trial
strategy, and does not constitute a ground for post-conviction relief, absent
exceptional circumstances.” Hickey v. State, 328 S.W.3d 225, 231 (Mo. App.
E.D. 2010). “However, a defendant’s right to testify on his own behalf is
fundamental, and only that individual can waive the right.” Id. The waiver of
the right to testify must be made voluntarily and knowingly. Id.
Here, the motion court’s finding that [Speer] chose not to testify at trial is
supported by the record. Again, the motion court determines the credibility of the
witnesses. Hurst, 301 S.W.3d at 117. [Defense counsel]’s testimony supports a
finding that they did, in fact, advise [Speer] about his right to testify and that it was
[Speer] who ultimately decided not to testify. The motion court did not err in
denying [Speer]’s petition on this point.
(Respt’s Ex. L at 11.)
The state courts reasonably applied Strickland. The record supports the state courts’
finding that the trial court questioned Speer regarding his decision not to testify, and that Speer
reported that it was his decision not to testify. (Respt’s Ex. A at 495.) Further, counsel’s advice
not to testify was reasonable trial strategy in light of Speer’s extensive criminal history. These
are not easy decisions, and “[j]udicial scrutiny of counsel’s performance is highly deferential,
indulging a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional judgment.” Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006) (citing
Strickland, 466 U.S. at 689). Thus, trial counsel were not ineffective in failing to call Speer to
testify. Ground Five will be denied.
6.

Ground Six
In Ground Six, Speer argues that trial counsel were ineffective when they failed to

subpoena and call Norman Showers and Ricky Fields as alibi witnesses at trial.
Speer raised this claim in his post-conviction relief motion, and in his appeal from the
denial of post-conviction relief. Both Showers and Fields testified at the hearing concerning
Speer’s post-conviction relief motion. Showers testified that he worked with Speer at Tocco
Foods. (Respt’s Ex. G at 4.) Showers testified that, when he arrived at work on the morning of
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the crime at 7:00 or 7:30 a.m., he saw Speer standing on the front dock smoking a cigarette and
said “good morning” to him. Id. at 5. Showers stated that he left Tocco Foods to go on a
delivery at approximately 8:05 a.m. Id. at 6-7. Showers testified that he did not observe the
shooting because it occurred after he left Tocco Foods. Id. at 9. Fields testified that he worked
at Tocco Foods with Speer. Id. at 68. Fields testified that he saw Speer when he arrived at work
at 5:00 a.m. on the day of the crime. Id. at 69. Fields stated that he left Tocco Foods to make a
delivery at approximately 7:30 a.m. Id. at 70. Fields testified that he was not at Tocco Foods
when the shooting occurred so he had “no idea what happened.” Id. at 70-71. When asked
whether he would have been willing to testify at Speer’s trial, Fields stated “I don’t know nothing.
Why would I be able to?” Id. at 71. One of Speer’s trial attorneys testified that he did not call
Showers or Fields because they did not witness the incident so they had nothing to offer the
defense. Id. at 26, 29.
The motion court denied Speer’s claim, finding that the testimony of Showers and Field at
the hearing revealed they had little to nothing to offer Speer as witnesses. (Respt’s Ex. H at 50.)
The Missouri Court of Appeals summarily denied Speer’s claim, finding that these witnesses
“would not have provided [Speer] with a viable defense.” (Respt’s Ex. L.)
The decision of the state courts was not contrary to or an unreasonable application of
clearly established federal law. The testimony Showers and Fields provided at the
post-conviction motion hearing reveals that they would not have aided Speer’s defense. Both
Showers and Fields left Tocco Foods prior to the crime and did not observe the incident. They
did not claim that they were with Speer when the shooting occurred and, as such, could not
provide Speer with an alibi. Thus, counsel were not ineffective in failing to call Showers or
Fields. Ground Six will be denied.

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7.

Ground Seven
In Ground Seven, Speer argues that trial counsel were ineffective for failing to subpoena

and call Melissa Lee as a witness at trial. Speer contends that Lee would have testified that the
incident at the St. Charles County Courthouse did not happen the way Victim’s sister described it.
Speer raised this claim in the post-conviction proceedings. At the hearing on his
post-conviction motion, trial counsel testified that Speer was adamant that Lee not testify.
(Respt’s Ex. G at 31, 39, 59.) Counsel testified that Speer told him that Lee did not know
anything about the case. Id. at 59. Counsel also stated that it was documented in the police
report that Lee called Speer’s cell phone soon after the murder and, when a detective answered the
phone, Lee asked “Is it over?” Id. at 39, 59. Counsel testified that Speer never told them that
Lee could refute Victim’s sister’s testimony regarding the courthouse incident. Id. at 31-32, 59.
Lee testified that she was a friend and neighbor of Speer’s. Id. at 75. Lee stated that
Speer had asked her to come to the St. Charles County Courthouse because Victim had “said
some statements” about Lee during the divorce proceedings, and Lee may be asked to testify. Id.
at 77. Lee testified that she never saw an altercation between Victim and Speer when she was at
the courthouse. Id. Lee further testified that Speer and Victim went inside the clerk’s office at
one point and she waited in the hallway outside the clerk’s office. Id. at 79-80, 86-88. Lee
stated that she thinks Victim’s sister was also in the clerk’s office with Speer and Victim, but she
could not see any of them. Id. at 88. Lee testified that she could not remember anything that
happened in the hallway. Id.
The motion court rejected Speer’s claim, noting “[w]hat this witness had to offer is a
mystery to the court.” (Respt’s Ex. H at 51.) The court found that counsel’s decision not to call
Lee as a witness was sound trial strategy as Speer told counsel not to call Lee because she did not
know anything about the case. Id. The Missouri Court of Appeals summarily denied this claim,
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stating Lee’s testimony would not have provided Speer with a viable defense. (Respt’s Ex. L at
14).
The decision of the state courts was not contrary to or an unreasonable application of
federal law. Lee’s testimony at the post-conviction hearing revealed that she was not with Speer
the entire time at the St. Charles County Courthouse. Lee also stated at the hearing that she could
not remember what happened in the hallway of the courthouse. As such, Lee’s testimony would
not have refuted Victim’s sister’s testimony regarding the argument between Speer and Victim at
the courthouse. Even if Lee were able to contradict Victim’s sister’s testimony regarding the
argument, she would not be able to establish Speer’s innocence of the murder in light of the
significant evidence presented of Speer’s guilt, including Speer’s DNA on the murder weapon.
Thus, trial counsel were not ineffective in failing to call Lee as a witness at trial.
VI.

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, Speer 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.

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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.

Dated: February 26, 2016

ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE

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