McEwen v. Bowersox
MEMORANDUM: For the reasons stated above, the petition of Larry McEwen for a writ of habeas corpus is denied. Because petitioner has made no substantial showing that he was deprived of a constitutional right, a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2). An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 5/16/2014. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:12 CV 2293 DDN
This action is before the court upon the amended petition of Missouri state prisoner Larry
McEwen for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 18.) The parties have
consented to the exercise of plenary authority by the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (Doc. 13.) For the reasons set forth below, the petition for a writ
of habeas corpus is denied.
On November 7, 2008, a jury in the Circuit Court of Washington County found petitioner
guilty of second degree assault, first degree assault, and two counts of armed criminal action.
(Doc. 21, Ex. D at 67-68.) On January 15, 2009, the circuit court sentenced petitioner to two
years imprisonment for second degree assault, fifteen years for first degree assault, and three
years for each count of armed criminal action, all to be served concurrently. (Id.) On March 23,
2010, the Missouri Court of Appeals affirmed the judgment on direct appeal. (Id., Ex. G); State
v. McEwen, 307 S.W.3d 184 (Mo. Ct. App. 2010).
On March 11, 2009, petitioner filed in the circuit court a pro se motion for postconviction relief under Missouri Supreme Court Rule 29.15. (Doc. 21, Ex. I at 7-13.) Petitioner
filed an amended motion for post-conviction relief on May 11, 2010. (Id. at 14-58.)1 The circuit
With the assistance of appointed counsel, petitioner filed a second amended motion for postconviction relief on July 14, 2010. (Doc. 21, Ex. I at 59-78.) However, petitioner withdrew the
second amended motion and refiled the first amended motion on July 19, 2010. (Id. at 3, 59-78.)
court denied petitioner’s motion on May 17, 2011. (Id. at 160-73.) On April 17, 2012, the
Missouri Court of Appeals affirmed the circuit court’s denial of the motion. (Id., Ex. O at 1.);
McEwen v. State, 364 S.W.3d 268 (Mo. Ct. App. 2012). On May 9, 2012, petitioner filed a pro
se motion for rehearing or transfer to the Missouri Supreme Court. (Doc. 21, Ex. Q at 1-15.)
The Missouri Court of Appeals denied the motion as untimely on May 14, 2012. (Id. at 16.)
On December 7, 2012, petitioner commenced this federal action by filing a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On August 2, 2013, plaintiff amended
his petition with the assistance of counsel. (Doc. 18.)
In denying petitioner’s direct appeal, the Missouri Court of Appeals described the facts,
viewed in the light most favorable to the verdict, as follows:
This case arises out of events that occurred between [petitioner] and his
siblings on their father’s farm. [Petitioner] is one of six children of Malcolm
McEwen (“Father”) and Ethel McEwen (“Mother”). Mother recently passed
away which led to a strained relationship between the members of the McEwen
family. Ron McEwen (“Ron”), [petitioner’s] brother, lived on Father’s farm, but
Father had recently asked Ron to move. Ron had previously had problems with
[petitioner] and had obtained an order of protection against him prior to the
incident in this case. Because of the move, Ron was selling his cattle and agreed
to sell his last two to Keith Miller (“Miller”), who was to pick them up from
Father’s farm on October 16, 2004.
On October 16, 2004, Ron along with his sister Karen McEwen (“Karen”),
who had also had previous problems with [petitioner], arrived at the farm in a van
along with Miller who was driving behind in a truck with a cattle trailer hitched to
it. As they drove to the cattle on the farm, [petitioner] pulled in front of the van
with a tractor. [Petitioner] was armed with a shotgun and pistol, which he showed
to Karen and Ron. [Petitioner] led the van and the truck to the cattle, and as they
followed, Ron began to videotape what was happening with his camcorder.
Eventually [petitioner] pulled the tractor to the side of the path, and let the van
pass, but then walked in front of Miller’s truck and, while holding the shotgun,
ordered Miller to stop. When Karen saw the [petitioner] was stopping Miller, she
stopped the van and got out.
[Petitioner] began to yell at Karen, and then pointed his shotgun at her and
threatened to shoot her. Karen challenged [petitioner] to go ahead and shoot her.
[Petitioner] then lowered the shotgun, pulled an unopened beer bottle out of his
pocket and threw it at Karen striking her in the right hip without the bottle
breaking. Karen threw the bottle back at [petitioner]. [Petitioner] picked the
bottle back up and hit Karen with it, and then struck her with the butt end of his
shotgun, causing three fractures in Karen’s skull.
[Petitioner] began to walk away, but then turned around and approached
Karen again as if to hit her again. Ron got between them, put his camcorder
down, and told [petitioner] that Karen needed a doctor. [Petitioner] grabbed the
shotgun by the stock and swung it like a baseball bat, and hit Ron in the side of
the head with the barrel. [Petitioner] then pulled a pistol out of his back pocket
and shot Ron’s camcorder. Ron left and called 911.
[Petitioner] then turned the shotgun on Miller and told him to leave.
Miller asked [petitioner] to move his tractor so he could turn his truck around.
[Petitioner] then told him to get the calves. Miller loaded the calves into his
trailer and then drove off. As he left, he told [petitioner] he would call an
ambulance for Karen, to which [petitioner] replied, “The bitch is faking.” Miller
left the property and called the police.
Sheriff’s deputies arrived and found Karen still on the ground. They also
found the camcorder and the shotgun sitting on the tailgate of a truck nearby. The
butt of the shotgun stock had been shattered and the forearm stock had popped
off. The pistol was found under a shirt on the passenger seat of the truck with a
live round in the chamber and another in the magazine. A fired round and a shell
casing were found on the ground. A broken beer bottle and splinters from the
stock of the shotgun were also found in the area.
[Petitioner] was arrested and given Miranda warnings. He admitted to the
deputies that he struck Ron and Karen and that he shot the camcorder. The
cassette in the camcorder was unplayable, but when the spools were replaced by
the deputies, the tape was played and found to be blank.
At trial, [petitioner] presented testimony from Stephen and Michael
Dosenbach, who were both on the farm the day the events occurred and who both
testified that Karen and Ron advanced on [petitioner], and that he struck them in
self-defense. [Petitioner] also testified that he was acting in self-defense.
The jury found [petitioner] guilty of assault in the first degree, assault in
the second degree, and two counts of armed criminal action. [Petitioner] was
sentenced to fifteen years imprisonment for assault in the first degree, two years
imprisonment for assault in the second degree, and three years imprisonment each
for each count of armed criminal action to run concurrently.
(Doc. 21, Ex. G at 3-5).
II. PETITIONER’S GROUNDS FOR FEDERAL HABEAS RELIEF
Petitioner alleges five grounds for relief in this habeas action:
Trial counsel rendered constitutionally ineffective assistance per se because he
was suffering from a mental disorder that profoundly affected his preparation and
Trial counsel rendered constitutionally ineffective assistance by failing to call
Guy Roberts, D.O., to explain petitioner’s physical limitations and inability to
conduct the alleged attacks.
Trial counsel rendered constitutionally ineffective assistance by failing to
properly and fully cross-examine Karen Taylor.
The trial court violated petitioner’s right to due process by failing to properly
control the cross-examination of petitioner’s witness Michael Dosenbach and by
allowing improper impeachment of that witness through the testimony of a
The prosecution violated petitioner’s right to due process by charging a more
serious offense because petitioner exercised his right to trial.
(Doc. 18 at 1-7.)
Respondent contends that all grounds are without merit. Respondent further contends
that petitioner procedurally defaulted entirely on Grounds 1, 4, and 5 and partially on Ground 3.
(Doc. 20 at 12-17.)
III. EXHAUSTION AND PROCEDURAL BAR
Congress requires that state prisoners exhaust their state law remedies for claims made in
federal habeas corpus petitions filed in district court under 28 U.S.C. § 2254. See 28 U.S.C.
§ 2254(b)(1)(A). A state prisoner has not exhausted his remedies “if he has the right under the
law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. §
Given the limitation periods under Missouri law for a motion for rehearing or
application for transfer to the Missouri Supreme Court, no proper procedure for litigating his
federal habeas claims remains available to petitioner. See Mo. Sup. Ct. R. 83.02 and 84.17
(motions for rehearing and applications for order transferring case from the Court of Appeals to
Missouri Supreme Court must be filed within fifteen days of the filing of the memorandum
decision disposing of the case).
Exhaustion in the sense that petitioner now has no remaining procedure for bringing a
claim to the state court does not, however, satisfy the federal statutory requirement. Rather, a
petitioner must have fairly presented the substance of each federal ground to the trial and
appellate courts. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). If he has not done so
and has no remaining procedure for doing so because he has defaulted on the legitimate
requirements of the otherwise available procedures, any such ground for federal habeas relief is
barred from being considered by the federal courts. Grass v. Reitz, 643 F.3d 579, 584 (8th Cir.
2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001) (en banc); Sweet v. Delo, 125 F.3d
1144, 1149-50 (8th Cir. 1997) (concluding that petitioner’s failure to present a claim on appeal
from a circuit court ruling raises a procedural bar to pursuing the claim in a habeas action in
federal court). The doctrine of procedural bar applies whether the default occurred at trial, on
appeal, or during state court collateral attack. See Murray v. Carrier, 477 U.S. 478, 490-92
Petitioner raised Ground 1 in his motion for post-conviction relief (Doc. 21, Ex. I at 20),
but he did not present that ground to the Missouri Court of Appeals (Id., Ex. M). Although
petitioner raised the ground again in his motion for rehearing or transfer to the Missouri Supreme
Court, the Court of Appeals denied the motion as untimely. (Id., Ex. Q.) Due to petitioner’s
failure to present Ground 1 on appeal, he procedurally defaulted on that ground.
Petitioner raised Ground 2 in his motion for post-conviction relief and presented it to the
Missouri Court of Appeals. (Id., Ex. I at 21-22, Ex. M at 27.) Petitioner did not procedurally
default on Ground 2.
In Ground 3, petitioner argues that trial counsel failed to properly and fully crossexamine Karen Taylor, citing Taylor’s history of violence against her father in addition to her
violation of bond conditions on October 16, 2004. (Doc. 18 at 7.) In his motion for postconviction relief, petitioner raised several grounds for ineffective assistance related to trial
counsel’s cross-examination of Karen Taylor; however, on appeal, petitioner presented only the
ground that trial counsel was ineffective for failing to cross-examine Karen Taylor regarding her
bond conditions. (Id., Ex. I at 24-25, 60, Ex. M at 46.) A petitioner procedurally defaults on any
specific ineffectiveness claims that are not presented on appeal. See Flieger v. Delo, 16 F.3d
878, 885 (8th Cir. 1994). Accordingly, petitioner procedurally defaulted on any ineffectiveness
claims presented in Ground 3 beyond the claim regarding trial counsel’s failure to cross-examine
Karen Taylor regarding her bond conditions.
Petitioner raised Ground 4 on direct appeal but not before the trial court. (Doc. 21, Ex. E
at 27, 35.) The Missouri Court of Appeals found no grounds that a manifest injustice occurred
and declined to grant discretionary review for plain error. Because the court did not conduct
plain error review, there was no waiver of procedural default. See Hornbuckle v. Groose, 106
F.3d 253, 257 (8th Cir. 1997); Mack v. Caspari, 92 F.3d 637, 641 (8th Cir. 1996). Because
petitioner failed to raise Ground 4 at trial and the Missouri Court of Appeals did not waive
procedural default on direct appeal, he procedurally defaulted on Ground 4.
Petitioner first raised Ground 5 in his petition for federal habeas relief and did not present
the ground to any state court. Accordingly, petitioner procedurally defaulted on Ground 5.
Nevertheless, petitioner may avoid the procedural bar if he can demonstrate legally
sufficient cause for the default and actual prejudice resulting from it, or if he can demonstrate
that failure to review the claim would result in a fundamental miscarriage of justice. Maples v.
Thomas, 132 S. Ct. 912, 922 (2012); Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). To
establish sufficient cause for the procedural default, petitioner must demonstrate that some
objective factor external to the defense impeded his efforts to comply with a state procedural
requirement. Maples, 132 S. Ct. at 922; Coleman, 501 U.S. at 750-52.
To establish actual prejudice, petitioner must demonstrate that the alleged errors “worked
to his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (internal citations omitted);
see also Charron v. Gammon, 69 F.3d 851, 858 (8th Cir. 1995) (stating that the standard of
prejudice to overcome procedural default “is higher than that required to establish ineffective
assistance of counsel under Strickland.”).
Petitioner argues that the Missouri State Public Defender system caused his procedural
default of Grounds 1, 3, and 5 by failing to raise those grounds on appeal. (Doc. 24 at 4.)
Federal habeas courts may hear claims procedurally defaulted due to ineffective assistance of
counsel in initial post-conviction motion proceedings. Martinez v. Ryan, 132 S. Ct. 1309, 1315
(2012). However, here, the default occurred when petitioner’s counsel failed to raise Grounds 1,
3 or 5 in the appeal of the denial of his motion for post-conviction relief. The narrow exception
set forth in Martinez does not extend to appellate post-conviction counsel. Arnold v. Dormire,
675 F.3d 1082, 1087 (8th Cir. 2012). Accordingly, the failure of petitioner’s counsel to present
Grounds 1, 3, and 5 to the Missouri Court of Appeals does not constitute cause for default, and
the grounds remain procedurally barred.
Nevertheless, Congress has authorized federal courts to consider and to dismiss the
merits of procedurally barred grounds if the court concludes that the grounds are without merit.
28 U.S.C. § 2254(b)(2). The undersigned has considered all of petitioner’s federal grounds on
IV. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires that habeas relief
may not be granted by a federal court on a claim that has been decided on the merits by a state
court unless that adjudication:
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
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)(1)-(2).
A state court’s decision is contrary to clearly established federal law if it “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.” Thaler v. Haynes,
559 U.S. 43, 47 (2010) (per curiam) (citation omitted). This standard is difficult to meet because
habeas corpus “is a guard against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.” Harrington v. Richter, 131 S. Ct. 770,
786 (2011) (citation omitted). A state court’s decision involves an “unreasonable application” of
clearly established federal law if “the state court identifies the correct governing legal principle
from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Thaler, 559 U.S. at 47.
A state court’s factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1);
Wood v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d)(1) is limited to the record
before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct.
1388, 1398 (2011). Clear and convincing evidence that factual findings lack evidentiary support
is required to grant habeas relief. 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293.
The court reviews Grounds 1, 2, and 3 under the AEDPA standard. However, because no
state court decided Grounds 4 and 5 on the merits, the pre-AEDPA standard for habeas review
governs. Robinson v. Crist, 278 F.3d 862, 867 (8th Cir. 2002). The pre-AEDPA standard
requires de novo review. Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011)
V. EVIDENTIARY HEARING
Petitioner also requests an evidentiary hearing, specifically to present evidence regarding
his trial counsel’s mental disorder and failure to investigate the background of Karen Taylor.
(Doc. 25.) AEDPA provides that a court shall not hold an evidentiary hearing on a habeas
corpus claim unless a petitioner shows that:
(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
None of petitioner’s claims rely on a new rule of law or a factual predicate that could not
have been previously discovered with due diligence. Further, in his first and second amended
pro se motions for post-conviction relief, petitioner argued the same factual predicates that
constitute the bases of Grounds 1 and 3. (Doc. 21, Ex. I at 20, 24-25.) Additionally, petitioner
deposed his trial counsel with the assistance of appointed counsel prior to the state court’s
decision on the motion for post-conviction relief. (Doc. 21, Ex. J.) Accordingly, petitioner’s
request for an evidentiary hearing is denied.
A. Ground 1
Petitioner argues that his trial counsel suffered from a mental disorder at the time of trial,
rendering counsel’s assistance constitutionally ineffective. In Strickland v. Washington, the
Supreme Court defined ineffective assistance of counsel as arising under the Sixth and
Fourteenth Amendments. 466 U.S. 668 (1984). Pursuant to Strickland, petitioners are entitled to
federal habeas corpus relief upon a showing that “counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Id. at 686. If there is any reasonable argument that the state court decision is consistent
with Strickland, then the state court decision must be left undisturbed. Williams v. Roper, 695
F.3d 825, 831 (8th Cir. 2012).
Petitioner must first demonstrate that counsel’s performance fell below an objective
standard of reasonableness.
Strickland, 466 U.S. at 687-88.
However, there is a strong
presumption that counsel has provided constitutionally effective assistance.
Id. at 690.
Counsel’s strategic choices made after thorough investigation are virtually unchallengeable, and
decisions following reasonable, but less thorough, investigation are upheld to the extent that they
are supported by reasonable judgment. Id. at 690-91.
Petitioner must then demonstrate actual prejudice resulting from counsel’s deficient
performance. Id. at 687. To show prejudice, petitioner must establish a reasonable probability
that, but for counsel's errors, the result of the proceeding would have been different. Id. at 695.
The prejudice must be an “actual and substantial disadvantage, infecting [petitioner’s] entire trial
with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).
Specifically, petitioner states that trial counsel suffered from depression at the time of
trial, making him reluctant to “look at certain things that needed to be looked at.” Petitioner cites
a motion to set aside judgment and order of disbarment that counsel filed in a separate
disciplinary action, indicating that counsel suffered “severe mental disorders” from at least
January 1, 2007, that caused him to avoid and suppress threatening situations. (Doc. 21, Ex. I at
138.) Petitioner argues that these mental disorders resulted in counsel’s deficient preparation for
trial. However, the post-conviction motion court held that there was no evidence in the record of
counsel’s mental disorder at the time of trial:
The Court watched trial counsel's performance very closely, throughout the trial.
Mr. Pennoyer did nothing during the trial to suggest he was suffering  from any
mental disease or disorder. Rather, the Court found him to be attentive, and
considered his cross and direct examination of witnesses to be appropriate and
consistent with the defenses presented by Defendant. The Court also recalls that,
given the relationship of the Defendant to the victims, and the family dynamics in
play, the trial involve some very emotional evidence. Trial counsel managed to
navigate the two days of trial without any apparent mental, or other problems that
the Court could see.
(Doc. 21, Ex. I at 161-62.)
The Eighth Circuit has declined to adopt a rule requiring a per se presumption of
prejudice with regard to mental illness. Johnson v. Norris, 207 F.3d 515, 518 (8th Cir. 2000).
The record should reflect the errors made by counsel as a result of his mental illness. See id.
Petitioner has failed to produce evidence sufficient to rebut the presumption of correctness
afforded to state determinations. See 28 U.S.C. § 2254(e)(1). Moreover, petitioner fails to point
to any specific conduct affected by trial counsel’s alleged mental illness constituting deficient
Accordingly, Ground 1 is without merit.
B. Ground 2
In Ground 2, petitioner argues that trial counsel was ineffective for failing to call Guy
Roberts, D.O., to testify that petitioner was physically unable to perform the alleged attacks. The
Missouri Court of Appeals concluded that petitioner failed to demonstrate deficient performance,
noting the risk that Dr. Roberts’s testimony would contradict petitioner’s statements regarding
self-defense, the testimony’s limited relevance to the claim of self-defense, and the testimony’s
cumulative nature. (Doc. 21, Ex. O at 4.)
At his deposition, trial counsel testified that he
avoided calling Dr. Roberts as a witness due to the risk that Dr. Roberts’s testimony would
contradict petitioner’s testimony that he could not run, retreat, or jump. (Id., Ex. J at 17.)
During trial, petitioner testified that he could not run, bend, or squat. (Id., Ex. A at 274.) He
further testified that he hit Karen Taylor when she reached for his shotgun and that he hit Ronald
McEwen when Ronald quickly advanced on him and that he could not run due to his physical
limitations. (Id. at 279-82, 295.) Further, Michael Dosenbach also testified at trial regarding
petitioner’s physical limitations at the time of the attack. (Id. at 257.)2
The evidence in the
record supports the determination that trial counsel was not deficient for failing to call Dr.
Accordingly, the Missouri Court of Appeals did not unreasonably apply federal law, and
Ground 2 is without merit.
When the witness changed the subject matter of his answer, "The time that when Karen --," the
prosecutor objected, because this was not responsive to the question. The trial court sustained
the objection. (Id.)
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C. Ground 3
Petitioner argues that trial counsel was ineffective for failing to properly and fully crossexamine witness Karen Taylor, specifically regarding her alleged assault on Malcolm McEwen,
restraining orders entered against her and Ronald McEwen, and Karen Taylor's bond conditions.
Petitioner offered a power-of-attorney document, petition for order of protection, and an
agreement signed by Malcolm, Larry, Ronald, and Janet McEwen to the motion court in support
of his ineffective assistance claim regarding the cross-examination of Karen Taylor. (Doc. 21,
Ex. I at 147-57.) The motion court found that the document as described could not have bound
Karen Taylor and that the record was irrelevant and inadmissible. (Id. at 181.) The motion court
further found that petitioner failed to plead that the bond conditions were in effect on the date of
the crime and thereby failed to demonstrate the relevance of such bond conditions. (Id. at 182.)
The motion court concluded that trial counsel’s failure to introduce inadmissible evidence was
not ineffective assistance. (Id.) The Missouri Court of Appeals agreed with the conclusions of
the motion court. (Id., Ex. O at 6.) The state appellate court further noted that the jury had heard
several accounts of the attack as well as petitioner’s self-defense claim and knew of Karen
Taylor’s prior conviction for second-degree assault. (Id. at 7.) The appellate court concluded
that the additional cross-examination of Karen Taylor suggested by petitioner would not have
resulted in a different outcome at trial. (Id.)
Petitioner states that Karen Taylor’s bond conditions prohibited her from entering
Malcolm McEwen’s farm, but no such condition appears in any of the documents attached to
petitioner’s post-conviction motion. (Id., Ex. I at 150-59.) Further, Karen Taylor was not named
as a party in the petition for order of protection. (Id.) The jury heard testimony regarding the
attack from Karen Taylor, Ronald McEwen, Keith Miller, Stephen Dosenbach, Michael
Dosenbach, and petitioner (Id., Ex. A at 114-19, 162-66, 212-17, 230-34, 252-55, 279-82). The
jury also heard testimony regarding Karen Taylor’s prior convictions, including the conviction
for second-degree assault. (Id. at 104-05.)
The lack of any evidence suggesting that Karen Taylor was a party of any order of
protection or subject to any bond conditions supports the determination by the state court that the
documents cited by petitioner were irrelevant and that trial counsel was not deficient for failing
to cross-examine Karen Taylor regarding them. Further, the testimony of several witnesses
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regarding the attack, including three witnesses testifying on behalf of petitioner, and the
presentation of evidence of Karen Taylor’s prior convictions support the Missouri Court of
Appeals' determination that additional cross-examination of Karen Taylor suggested by
petitioner would not have resulted in a different outcome at trial.
Because neither the post-conviction motion court nor the Missouri Court of Appeals
unreasonably applied federal law, Ground 3 is without merit.
D. Ground 4
Petitioner argues that the trial court violated his right to due process by failing to properly
control the cross-examination of Michael Dosenbach and by allowing improper impeachment
through the testimony of a rebuttal witness. To establish a due process violation based on a state
court evidentiary ruling, petitioner must show that the alleged violation was “so egregious that
[it] fatally infected the proceedings and rendered his entire trial fundamentally unfair.”
Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) (internal citation omitted). Petitioner must
also show a reasonable probability that, but for the alleged violation, the outcome of the trial
would have been different. Id. Whether the evidence was properly admissible under state law is
beyond the scope of habeas review. Middleton v. Roeper, 498 F.3d 812, 820 (8th Cir. 2007).
Petitioner argues that the cross-examination and calling of a rebuttal witness to impeach
Dosenbach “shift[ed] the focus from the ultimate jury question, acted to deprive [p]etitioner of
due process and created a manifest injustice.” Even assuming the trial court erred by admitting
the impeachment testimony, petitioner fails to demonstrate that the verdict would have been
different absent the challenged testimony.
At trial, Michael Dosenbach testified in support of petitioner’s claim of self-defense.
(Doc. 21, Ex. A at 249-58.) The prosecutor cross-examined Michael Dosenbach as to whether
he retired from a position with the Ste. Genevieve County Sheriff’s Department or was fired for
the mishandling of a female inmate:
Isn't it true that you were fired from the Ste. Genevieve County Sheriff's
Department on March 2, 2001?
No, sir. I had a choice if I wanted to retire and that's what I did, I retired.
And you were fired for taking a female inmate out to lunch in plain clothes
with no cuffs on?
If you want to say that.
You were fired for that reason.
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I had a supervisor with me, sir, and that was his decision, not mine.
Sir, were you fired from the Ste. Genevieve County Sheriff's Department?
No. I retired.
And that's your testimony under oath, correct?
(Id. at 262-63.) Later, the prosecution called Sheriff Gary Stolzer twice in rebuttal to testify
that he fired Michael Dosenbach. (Id. at 305, 332.) The testimony of Karen Taylor and Ronald
McEwen also contradicted Michael Dosenbach’s testimony regarding petitioner's self-defense.
(Id. at 114-19, 162-66, 212-17.) Because of this substantial evidence contradicting Michael
Dosenbach’s testimony and supporting the conviction, the court cannot conclude that, absent the
alleged violation, the outcome of the trial would have been different.
Accordingly, Ground 4 is without merit.
E. Ground 5
Petitioner argues that the prosecution raised the charge from a class B felony to a class A
felony as a response to petitioner exercising his right to trial. The record shows that the
prosecution initially charged petitioner with a class A felony (Doc. 21, Ex. D at 16). The
petitioner implies that the prosecution then offered him a class B felony charge in exchange for a
guilty plea, which petitioner declined. (Doc. 24 at 21.) The prosecution ultimately succeeded in
convicting petitioner of a class A felony at trial. (Doc. 21, Ex. D at 56-63.)
“To punish a person because he has done what the law plainly allows him to do is a due
process violation of the most basic sort.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978).
However, when the prosecution does no more than present “the defendant with the unpleasant
alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution,”
the prosecution does not violate the right to due process. Id. at 365. Petitioner fails to argue that
the prosecution’s conduct exceeded the confines of that which Bordenkircher expressly allows.
Petitioner next argues that the prosecutor improperly implored the jury, in sentencing
petitioner, to consider petitioner’s “behavior and actions” during the trial.
argument, the prosecutor stated that petitioner “couldn’t even . . . answer his attorney’s questions
before . . . going off the wall” or “behave in [the] courtroom.” (Doc. 21, Ex A at 391.) Jury
sentencing, based on the jury’s assessment of the evidence and demeanor and character of the
accused, is a legitimate practice under federal constitutional law and Missouri law. Chaffin v.
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Stynchcombe, 412 U.S. 17, 32 (1973); Young v. State, 547 S.W.2d 146, 148 (Mo. Ct. App.
1976). Thus, petitioner’s argument fails to demonstrate prosecutorial error.
Ground 5 is without merit.
For the reasons stated above, the petition of Larry McEwen for a writ of habeas corpus is
Because petitioner has made no substantial showing that he was deprived of a
constitutional right, a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2).
An appropriate Judgment Order is issued herewith.
/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on May 16, 2014.
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