Watkins v. Norman

Filing 38

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. [Doc. 1 .] IT IS FURTHER ORDERED that a separate judgment will be entered this same date. IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Kenneth Watkins for a Certificate of Appealability will be DENIED. Signed by Magistrate Judge Nannette A. Baker on 5/26/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENNETH WATKINS,
Petitioner,
v.
RONDA J. PASH,
Respondent.

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Case No. 4:12-CV-2393 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Kenneth Watkins’ (Watkins) Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Respondent Ronda J. Pash filed
a response. [Doc. 15.] Watkins filed a Reply Memorandum. [Doc. 27.] The parties have
consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1). [Doc. 11.] For the reasons set forth below, Watkins’ petition for writ of
habeas corpus will be denied.
I.

Background
Watkins was convicted of robbery in the first degree and armed criminal action. (Resp’t

Ex. B at 70-71.) Watkins was tried in this matter twice. The first trial in August 2007 ended in a
mistrial. (Resp’t Ex. B at 46.) At the second trial in January 2008, a jury found Watkins guilty.
(Resp’t Ex. B at 70-71.) The evidence presented at the second trial, viewed in the light most
favorable to the jury’s verdict, was presented as follows 1: The victim, LaShonda Phillips sat in
her car at a gas station. Watkins then tapped on her window with a gun and demanded money.

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These facts are taken directly from the Supplemental Memorandum accompanying the Missouri Court of Appeals
decision in Watkins’ direct appeal. See Resp’t Ex. E. A state court’s determination of a factual issue made by a
State court shall be presumed to be correct. 28 U.S.C. § 2254.

Watkins then ordered her out the car. When Phillips exited the car, Watkins got in the car and
sped away. Ms. Phillips entered the gas station and called the police.
A few days later, Officer Ronald Mueller saw Phillips’ car and recognized it as a car
listed on the “hotsheet,” a list of stolen cars. Officer Mueller pulled the car over, at which point
Watkins exited the car and began walking toward Officer Mueller carrying a white plastic bag
and a black bag. Officer Mueller ordered him to stop and Watkins began to run. Watkins was
taken into custody shortly thereafter. Phillips’ car keys were found in Watkins’ front pocket, the
white bag contained Phillips’ car stereo, and the black bag contained a gun.
A few hours after the car was recovered, Phillips went to the police station and identified
Watkins in a lineup. Phillips also identified the gun, Watkins’ hoodie and baseball cap, and her
car stereo. Watkins received a thirty year sentence for first degree robbery, which was run
concurrently to his sentence of ten years for the armed criminal action charge. Watkins filed a
direct appeal, which was denied by the Missouri Court of Appeals. Watkins then filed a motion
to vacate, set aside, and correct sentence. The post-conviction motion court denied Watkins’
post-conviction motion and that denial was affirmed by the Missouri Court of Appeals.
II.

Standard of Review
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in

violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ,
a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91
(2011). “In general, if a convicted state criminal defendant can show a federal habeas court that
his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of
habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 133 S.Ct.
1911, 1917 (2013). The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.

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§ 2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners after this
statute’s effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In
conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding
whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a
decision that is “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented at the State court
proceedings.” 28 U.S.C. § 2254(d). A determination of a factual issue made by a state court is
presumed to be correct unless the petitioner successfully rebuts the presumption of correctness
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
For purposes of § 2254(d)(1), the phrase “clearly established federal law refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state court decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “In other words,
clearly established federal law under § 2254(d)(1) is the governing legal principle or principles
set forth by the Supreme Court at the time the state court renders its decision.” Id. To obtain
habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he
thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris, 459 F.3d
849, 853 (8th Cir. 2006).
A state court’s decision is “contrary to” clearly established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from [the] precedent.’”

Penry v.

Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)).

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A state court decision is an unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case. Id. (citing Williams, 529 U.S. at 407–408). “A federal habeas
court making the unreasonable application inquiry should ask whether the state court’s
application of clearly established federal law was objectively reasonable.” Penry, 532 U.S. at
793. “A state court decision involves ‘an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it is shown
that the state court’s presumptively correct factual findings do not enjoy support in the record.”
Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute error is
inconsistent with the presumption that state courts know and follow the law.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). AEDPA’s highly deferential standard demands that state court
decisions be given the benefit of the doubt. Id.
III.

Discussion
Watkins presents eight claims for review. First, Watkins asserts that the trial court erred

in denying his motion to suppress evidence due to an illegal arrest, because he was arrested by
City of St. Louis police officers outside of their jurisdiction. Next, Watkins contends that he
conviction was procured through perjured testimony from Phillips. Then, Watkins states that the
prosecutor suppressed Brady material. Finally, Watkins presents five ineffective assistance of
counsel claims. Watkins contends that his trial counsel failed to (1) properly present the issue of
St. Louis police officers assaulting him, (2) argue the issue of an unlawful arrest, because the
arresting officers were outside of their jurisdiction, (3) impeach Phillips with inconsistent
deposition testimony, and (4) impeach Officer Mueller concerning the observations leading to
Watkins’ arrest.

Watkins asserts that appellate post-conviction counsel was ineffective for

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failing to raise a strong claim of trial court error that would have likely prevailed on appeal. The
Respondent contends that Watkins has procedurally defaulted seven of the eight claims and the
petition should be denied.
A.

Ineffective Assistance of Counsel
1.

Ineffective Assistance of Counsel Standard

“The Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial system to
produce just results.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “An accused is
entitled to be assisted by an attorney, whether retained or appointed who plays the role necessary
to ensure that the trial is fair.” Id. To succeed in a claim “that counsel’s assistance was so
defective as to require reversal of a conviction,” a petitioner must establish (1) that the trial
counsel’s performance fell below an objective standard of reasonableness and (2) that this
deficient performance prejudiced the Petitioner’s defense. Strickland, 466 U.S. at 687-88.
The “performance” component of Strickland requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
To satisfy this prong, a petitioner must first identify the specific acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment. Id. at 690. The
court must then examine the totality of the circumstances in order to determine whether “the
identified acts or omissions were outside the wide range of professionally competent assistance.”
Id. In making this determination, the court should recognize that trial counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. “Miscues and omissions are inevitable in any case

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and there is no such thing as a perfect trial.” Medearis v. U.S., 469 F.Supp.779, 785 (D.S.D.
2006).
To satisfy the “prejudice” component of Strickland, a petitioner “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Such “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In determining whether
prejudice exists, “a court hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Id. at 695. Further, the court “should presume, absent
challenge to the judgment on grounds of evidentiary insufficiency, that the judge and jury acted
according to the law.” Id. at 694.
It is important to note that “there is no reason for a court deciding an ineffective
assistance claim to approach the [two-pronged] inquiry in [a pre-determined] order or even to
address both components of the inquiry if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697. It is unnecessary, therefore, to prove that counsel’s performance fell
below an objective standard of reasonableness before determining the presence or absence of
resulting prejudice.
“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’ of
review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (citing Cullen v. Pinholster, 563
U.S. 170) (2011)). “First, under Strickland, the state court must make a predictive judgment
about the effect of the alleged deficiencies of counsel on the outcome of the trial, focusing on
whether it is reasonably likely that the result would have been different absent the errors.”
Williams, 695 F.3d at 831 (citing Strickland, 466 U.S. at 696)). “To satisfy Strickland, the
likelihood of a different result must be substantial not just conceivable.” Id. Second, under

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AEDPA, the Court must give substantial deference to the state court’s predictive judgment. Id.
Therefore, “[s]o long as the state court’s decision was not “contrary to” clearly established
federal law, the remaining question under the “unreasonable application” clause of § 2254(d) is
“whether the state court's determination under the Strickland standard is unreasonable, not
merely whether it is incorrect.” Id. at 831 (citing Harrington v. Richter, 562 U.S. 86, 101
(2011)). This standard is difficult, and “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102.
2.

Ineffective Assistance of Trial Counsel (Ground Three)

Watkins contends that he was denied effective assistance of counsel, because his trial
counsel failed to properly investigate, prepare, and argue the issue of his unlawful arrest.
Watkins states that the City of St. Louis arresting officers were acting outside of their
jurisdiction, because they arrested him in Pine Lawn, Missouri.
Watkins filed a Motion to Suppress Physical Evidence and Statements Relating to
Defendant’s Arrest and Memorandum in Support. (Resp’t Ex. B at 49-53.) In his motion,
Watkins stated that the physical evidence obtained during his arrest was obtained pursuant to an
unlawful search and seizure, because the City of St. Louis police officers had no authority to act
outside the city limits of their jurisdiction. The trial court took up the suppression motion with
the trial. During the trial, Watkins’ attorney did not object to the officers’ testimony regarding
the arrest. The trial court denied Watkins’ motion at the end of trial. (Resp’t Ex. J at 420.)
Watkins filed an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence
pursuant to Rule 29.15 asserting that his trial counsel failed to object to, and preserve for appeal
the issue of his unlawful arrest based on the fact that the arresting officers were acting outside of
their jurisdiction. (Resp’t Ex. F at 25-54.) The motion court denied Watkins’ Motion. (Resp’t

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Ex. F at 66-69.) The Missouri Court of Appeals held that claims for post-conviction relief based
on trial counsel’s failure to adequately preserve issues for appeal are not cognizable under Rule
29.15. (Resp’t Ex. I at 2.) Specifically, the court of appeals stated that “trial counsel’s failure to
preserve error for appellate review does not affect a movant’s right to a fair trial.” (Resp’t Ex. I
at 2.) The court of appeals found that because Watkins did not claim trial counsel’s inaction
affected the fairness of his trial, only the outcome of his appeal, the claim was not cognizable in
a post-conviction setting. (Resp’t Ex. I at 2-3.)
In this case, the pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. Harrington, 562 U.S. 86, 101. Based on current U.S. Supreme
Court and Eighth Circuit precedent, the Court finds that the court of appeals’ application of the
Strickland standard was not unreasonable. In Strickland, the Supreme Court stated “the ultimate
focus must be on the fundamental fairness of the proceeding whose result is being challenged.”
Strickland, 466 U.S. 668. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court
considered whether an attorney who failed to file a notice of appeal despite a request from the
defendant to do so provided ineffective assistance of counsel. In Flores-Ortega, the Supreme
Court held that “when counsel’s constitutionally deficient performance deprives a defendant of
an appeal that he otherwise would have taken, the defendant has made out a successful
ineffective assistance of counsel claim entitling him to an appeal.” Flores-Ortega, 528 U.S. at
484. The Supreme Court also recognized that “counsel’s alleged deficient performance arguably
led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of the
proceeding itself.” Id. at 483.
It appears that Flores-Ortega would give credence to Watkins’ claims. Despite the broad
language contained in Flores-Ortega, however, in a case very similar to this one, the Eighth

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Circuit decided that the petitioner was not entitled to relief. In Kennedy v. Kemna, 666 F.3d 472,
486 (8th Cir. 2012), the Eighth Circuit held that “[h]abeas relief is not warranted under § 2254(d)
where, as here, fairminded jurists could disagree over whether the Missouri Court of Appeals’
adjudication of [petitioner’s] claims conflicts with Strickland or Flores-Ortega.” In Kennedy,
the Eighth Circuit opined there is no clearly established federal law based on Supreme Court
precedent specifically addressing whether a federal court should examine the prejudice on appeal
rather than at trial where an attorney fails to preserve an issue for review. Id. at 486. In a case
decided before, Kennedy, this Court granted habeas relief to a petitioner whose attorney failed to
preserve an issue on appeal. See Shaw v. Dwyer, 555 F.Supp.2d 1000 (E.D. Mo. 2008). But, the
Court must follow Eighth Circuit law as it now stands. Based on currently binding 8th Circuit
precedent, the Court finds that relief should be denied on this claim.
B.

Procedurally Defaulted Claims

There is no dispute that Watkins has defaulted his seven remaining claims and these
claims are barred from federal review. “Failure to raise a claim on appeal reduces the finality of
appellate proceedings, deprives the appellate court of an opportunity to review trial error, and
undercuts the State’s ability to enforce its procedural rules.” Murray v. Carrier, 477 U.S. 478,
491 (1986). “In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review is barred.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Watkins contends that his procedural default
should be excused due to ineffective assistance of trial counsel, direct appellate counsel, and
post-conviction appellate counsel, as well as on the basis of newly discovered evidence. Because
Watkins has procedurally defaulted these claims, the court will review whether Watkins has
shown cause and prejudice to excuse the default of his claims.

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To overcome the default, a defendant must demonstrate either cause and actual prejudice
as a result of the alleged violation of federal law, or demonstrate that a failure to consider the
claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. 722 at 750. To
show cause for the default, defendant must demonstrate that some objective factor external to the
defense impeded counsel’s efforts to comply with the State’s procedural rule. Murray, 477 U.S.
at 488. For example, a defendant could demonstrate that the factual or legal basis for a claim
was not reasonably available to counsel or some interference by officials made compliance
impracticable. Id at 488.

While ineffective assistance of counsel constitutes cause for a

procedural default, the exhaustion doctrine generally requires that an ineffective assistance claim
be presented to the state courts as an independent claim before it may be used to establish cause
of a procedural default in federal habeas proceedings. Id. at 489. An ineffective assistance of
counsel claim asserted as cause for the procedural default of another claim can itself be
procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). This procedural
default may be excused if the prisoner can then satisfy the cause-and-prejudice standard with
respect to that claim. Id.
Section 2254(i) provides that “the 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.”

28 U.S.C. § 2254(i).

The Supreme Court has

recognized a limited exception to this rule. In Martinez v. Ryan, the Supreme Court held:
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.

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Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012). The Eighth Circuit has held that Martinez does
not stand for the proposition that the failure to preserve claims on appeal from a post-conviction
proceeding can constitute cause. Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (citing
Martinez, 132 S.Ct. at 1320) (holding does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings).
Because, Watkins has defaulted these claims and Watkins is claiming that his default
should be excused pursuant to Martinez, the Court will determine whether the claims have
substantial merit that would excuse the default.
1.

Ineffective Assistance of Trial Counsel Claims (Grounds Two and
Four)

Watkins claims that his trial counsel was ineffective for failing to present his assault
claim to the trial court and failing to impeach Phillips regarding inconsistencies with her
deposition testimony, trial testimony, and information provided to the 911 operator. Although
these claims are defaulted, Watkins states that he can establish cause and prejudice for the
default, because he received ineffective assistance of post-conviction counsel who failed to
include these claims in his Rule 29.15 post-conviction motion. These claims were included in
Watkins’ pro se Rule 29.15 motion, but not the amended Rule 29.15 motion filed by his
appointed counsel.
Upon review of the record pursuant to Martinez, the Court finds that Watkins has not
established that his post-conviction counsel was ineffective for failure to include the above
ineffective assistance of trial counsel claims in the Rule 29.15 motion. To assert a claim under
Martinez, Watkins must show that initial post-conviction counsel was ineffective in asserting a
substantial claim of constitutionally ineffective assistance of trial counsel. Dansby v. Hobbs, 766
F.3d 809, 834 (8th Cir. 2014). “A substantial ineffective assistance claim is one that has some
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merit.” Dansby, 766 F.3d at 834. The Court finds that these underlying ineffective assistance of
trial counsel claims lack merit.
First, there was no evidence in the trial court record regarding the police assaulting
Watkins. Counsel cannot be found ineffective for failing to assert claims not supported in the
record 2. There was no claim or allegation of an assault by police in the state court record below.
The officers testified that one officer used a taser when Watkins resisted arrest, but nothing
further was mentioned regarding any use of force. (Resp’t Ex. J at 298-300, 333, 366.) In his
initial pro-se Rule 29.15 motion, Watkins asserted that his trial counsel failed to investigate and
present a police brutality claim to the court. (Resp’t Ex. F at 7.) Watkins provides no details
about any assault including who committed the assault, how he was assaulted, or when the
assault took place. Therefore, the undersigned finds that this claim lacks substantial merit.
Second, Watkins’ trial counsel questioned Phillips regarding the discrepancies between
her deposition testimony, the 911 call, and trial testimony. (Resp’t Ex. J at 256-59, 262.) “A
failure to impeach constitutes ineffective assistance when there is a reasonable probability that,
absent counsel’s failure, the jury would have had reasonable doubt of the petitioner’s guilt.”
U.S. v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (citing Whitfield v. Bowersox, 324 F.3d 1009,
1018 (8th Cir. 2003)). Even if there could have been a stronger impeachment during Phillips’
cross-examination, there was no reasonable doubt of Watkins’ guilt, because Watkins was
stopped by the police after exiting Phillips’ car while carrying Phillips’ possessions. Watkins’
trial counsel also filed a motion to suppress the identification made by Phillips in the line-up and
any in court identification arising from the line-up (Resp’t Ex. B at 24-26.) In this case, initial
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Watkins attached his trial counsel’s “working notes” to his Petition. [Doc. 1 at 55-57.] In those notes, counsel
wrote: “Client was beat up pretty good and in line up all beat up. Client said we took a picture of him at confined
interviews.” [Doc. 1 at 55.] There is no other mention of Watkins being beat up by the police. The line-up
photographs were entered into evidence during the second trial. (Resp’t Ex. J at 239.) Phillips testified regarding
the line-up pictures. (Resp’t Ex. J at 238-39.)

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post-conviction counsel was not ineffective for failing to present claims that lack merit. “The
process of winnowing out weaker arguments on appeal and focusing on those more likely to
prevail, far from being evidence of incompetence, is the hallmark of effective advocacy.” Smith
v. Murray, 477 U.S. 527, 536 (1986). Therefore, the Court finds that post-conviction counsel
was not ineffective for failing to present non-meritorious or unsupported claims in the amended
29.15 motion. Based on the foregoing, the Court finds that grounds two and four lack substantial
merit. Accordingly, Watkins has failed to establish cause and prejudice to excuse the procedural
default and the Court cannot review the ineffective assistance of trial counsel claims in Grounds
two and four.
2.

Perjured Testimony (Ground Five)

Next, Watkins claims that his conviction was procured through perjured testimony from
Phillips. Watkins admits that this claim is defaulted and asserts that his default is excused,
because he received ineffective assistance of initial post-conviction counsel who failed to include
this claim in the amended Rule 29.15 motion. Watkins claims that his counsel acknowledges
that default of this claim was his fault. [Doc. 27-1 at 29.]
“[A] conviction obtained by the knowing use of perjured testimony is fundamentally
unfair and must be set aside if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” U.S. v. Agurs, 427 U.S. 97, 103 (1976).
The principle that a State may not knowingly use false
evidence, including false testimony, to obtain a tainted
conviction, implicit in any concept of ordered liberty, does
not cease to apply merely because the false testimony goes
only to the credibility of the witness. The jury’s estimate of
the truthfulness and reliability of a given witness may well
be determinative of guilt or innocence.

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Napue v. Illinois, 360 U.S. 264, 269 (1959). A defendant must establish that (1) the testimony
was in fact perjured and (2) the prosecuting officers knew, or should have known, of the perjury
at the time the testimony was presented before the Court can apply the reasonable likelihood
standard of Agurs. United States v. Duke, 50 F.3d 571, 577-78 (8th Cir. 1995).
Upon review of the record pursuant to Martinez, the Court finds that Watkins has not
established that his post-conviction counsel was ineffective for failure to include this claim of
perjured testimony in the amended Rule 29.15 motion.

Watkins has not shown that his

underlying claim of perjury has any merit. Watkins refers to inconsistences in Phillips’ 911 call,
deposition testimony, and trial testimony.

As discussed previously and acknowledged by

Watkins, his trial counsel questioned Phillips on these discrepancies during cross-examination.
(Resp’t Ex. J at 256-59, 262.) While Phillips’ statements may not be entirely consistent, “mere
inconsistency is not necessarily equated with perjury and every contradiction may not be
material.” United States v. Nelson, 970 F.2d 439, 443 (8th Cir. 1992).

Watkins has not

established that any of Phillips’ statements were perjurious or that the government knew or
should have known that any of Phillips’ statements constituted perjury. Initial post-conviction
counsel is not required to bring non-meritorious claims. Smith, 477 U.S. at 536. Therefore,
Watkins has failed to establish ineffective assistance of initial post-conviction counsel as cause
and prejudice to excuse the procedural default and the Court cannot review Watkins’ claim of
perjured testimony in Ground five.
The Court has reviewed the letter from Watkins’ post-conviction counsel regarding his
representation of Watkins in filing the amended Rule 29.15 motion. [Doc. 27-1 at 29-30.]
Counsel’s letter indicates that counsel disagrees with the Missouri Court of Appeals’ decision
not to review Watkins’ “Fourth Amendment” claim. Watkins’ counsel did not address the merits

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of Watkins perjury claim except to mention that he did not include it in the amended Rule 29.15
motion. None of the information included in the letter supports granting relief on Ground five.
3.

Trial Court Error in Denying Motion to Suppress (Ground One)

Next, Watkins contends that the trial court erred in denying his motion to suppress based
on illegal arrest. Watkins contends that his constitutional rights under the Fourth, Fifth, and
Fourteenth Amendments were violated by the admission of this evidence. In this case, Watkins
filed a motion to suppress evidence and statements relating to his arrest, asserting that the search
and seizure were unlawful because the arresting officers stopped Watkins outside of their
jurisdiction. (Resp’t Ex. B at 49-53.) The trial court denied the motion. On direct appeal,
Watkins’ appeal counsel raised one issue- denial of his motion to suppress Phillips’ line-up and
in court identifications. (Resp’t Ex. C.) Watkins contends that procedural default of this claim
should be excused, because direct appeal counsel rendered ineffective assistance by failing to
assert this claim on direct appeal. Watkins raised the issue of ineffective assistance of trial
counsel for failure to raise this claim on post-conviction appellate review. (Resp’t Ex. G.)
“In the habeas context, rules of evidence and trial procedure are usually matters of state
law.” Bucklew v. Luebers, 436 F.3d 1010, 1018 (8th Cir. 2006). “It is not the province of a
federal habeas court to reexamine state court determinations on state law questions.” Estelle v.
McGuire, 502 U.S. 62, 67 (1991). “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Id. at 68. “A federal issue is raised only where trial errors infringe on a specific constitutional
protection or are so prejudicial as to amount to a denial of due process.” Bucklew, 436 F.3d at
1018. In making this determination, the federal habeas court “must review the totality of the
facts in the case and analyze the fairness of the particular trial under consideration.” Hobbs v.

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Lockhart, 791 F.2d 125, 128 (8th Cir. 1986).

“Rulings on the admission or exclusion of

evidence in state trials rarely rise to the level of a federal constitutional violation.” Nebinger v.
Ault, 208 F.3d 695, 697 (8th Cir. 2000).
In this case, the trial court reviewed and the parties discussed state law regarding whether
the St. Louis City police officers had legal authority to stop and arrest Watkins in Pine Lawn
Missouri. (Resp’t Ex. J at 414-20.) The trial court acknowledged that the law was unclear as to
Watkins’ case, but found that the officers’ actions were justified and reasonable and denied the
motion to suppress. (Resp’t Ex. J at 417-20.) In Stone v. Powell, the U.S. Supreme Court held
that “where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at trial.” Stone v.
Powell, 428 U.S. 465, 494-495 (1976). A Fourth Amendment violation will only be reviewed if
either the state provided no procedure by which the prisoner could raise his Fourth Amendment
claim, or the prisoner was foreclosed from using that procedure because of an unconscionable
breakdown in the system. Palmer v. Clarke, 408 F.3d 423, 437 (8th Cir. 2005).
In this case, the State provided a corrective mechanism for any error made by the trial in
admitting any evidence by allowing Watkins to appeal his convictions to the Missouri appellate
courts. Chavez v. Weber, 497 F.3d 796, 802 (8th Cir. 2007). “A mere disagreement with the
outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the
state’s corrective process.” Chavez, 497 at 802. Moreover, “the federal courts on habeas review
of such claims are not to consider whether full and fair litigation of the claims in fact occurred in
the state courts, but only whether the state provided an opportunity for such litigation.” Willett v.
Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994) (emphasis in original). The undersigned finds that

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Watkins received an opportunity for full and fair litigation of his Fourth Amendment claims in
state court and there is no evidence of any unconscionable breakdown in the state’s review
mechanism that would warrant habeas relief. Further, because the state courts based their
decision on state law and the Court has not found a specific federal constitutional violation,
Watkins claim lacks substantial merit. Because this claim does not have substantial merit,
Watkins has failed to establish cause and prejudice for the default of this claim. Therefore, the
Court declines to grant relief on Ground one.
4.

Ineffective Assistance of Direct Appeal Counsel (Ground Six)

In his sixth ground for relief, Watkins contends that direct appeal counsel was ineffective
for failure to raise the issue of trial court error in the denial of his motion to suppress during his
direct appeal. The Sixth Amendment includes a guarantee to the right of effective assistance of
counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Watkins must satisfy both
prongs of the Strickland test to prevail on his claim of ineffective assistance of appellate counsel.
Smith v. Robbins, 528 U.S. 259, 289 (2000). Therefore, Watkins must show that the appellate
attorney’s performance was below the reasonable standard of competence and that there is a
reasonably probability that the result would have been different absent the attorney’s deficient
performance. Gee v. Groose, 110 F.3d 1346, 1352 (8th Cir. 1997). “Reasonable appellate
strategy requires an attorney to limit the appeal to those issues counsel determines have the
highest likelihood of success.” Gee, 110 F.3d at 1352. “Importantly, if an issue an appellate
attorney failed to raise on appeal is not meritorious, then appellate counsel cannot be considered
ineffective for having failed to argue that meritless issue on appeal. Kerns v. Bowersox, No.
4:06-CV-1755 TCM, 2010 WL 1049841 at *13 (E.D. Mo. Mar. 18, 2010).

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The Court has previously addressed Watkins’ claim and found habeas review is
foreclosed on this claim. See supra Section III.B.3. Because the claim lacks substantial merit,
Watkins cannot establish ineffective assistance of counsel of appellate counsel for failure to raise
this claim on direct appeal. Therefore, the Court will deny relief on Ground Six.
5.

Newly Discovered Evidence (Grounds Seven and Eight)

Next, Watkins requests that the Court review grounds seven and eight based on newly
discovered evidence. In ground seven, Watkins contends that he received ineffective assistance
of counsel, because his trial counsel failed to impeach Officer Mueller regarding inconsistency
with a radio dispatch recording at the time of Watkins’ arrest and his trial testimony. In ground
eight, Watkins states that the prosecution withheld evidence, i.e., the radio dispatch recording,
and allowed Mueller to falsely testify. Watkins contends that the procedural default of these
claims should be excused, because the radio dispatch recording is newly discovered evidence.
Watkins is not entitled to habeas relief on grounds seven and eight. First, the radio
dispatches and 911 recordings are not newly discovered evidence. The 911 recording was
played at trial for the jury. (Resp’t Ex. J at 410.) The officers testified about the radio dispatch
recordings. (Resp’t Ex. J at 291-92, 331, 352, 358-61.) “Newly discovered evidence has a wellsettled meaning: it is evidence which could not reasonably have been presented by the petitioner
in the earlier proceeding.” Stephens v. Kemp, 469 U.S. 1043, 1051 (1984). In short, it is
evidence that was not available at the time that Watkins presented his claims to the state court.
The 911 recording and radio dispatches do not constitute newly-discovered evidence in the case.
Watkins has not shown that these recordings were unavailable to him or counsel at the time of
his trial. Moreover, the existence of newly discovered evidence alone is not enough to establish
cause for a defaulted claim.

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Second, “claims of newly discovered evidence that relate only to the guilt or innocence of
a state prisoner do not warrant federal habeas corpus relief.” Bowman v. Gammon, 85 F.3d
1339, 1342 (8th Cir. 1996). “There must be an independent constitutional violation occurring in
the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). In
ground seven, Watkins alleges ineffective assistance of trial counsel for failing to impeach
Officer Mueller regarding whether he made inconsistent statements about his observations of
Watkins immediately prior to his arrest. This claim lacks merit. Officer Mueller’s testimony
that he observed Watkins for several minutes does not contradict his alleged statements 3 to the
police dispatcher during the observation that he had to circle back, at some point, because he was
driving on a one-way street. His testimony and alleged comments on the dispatch tape regarding
his observations of Watkins are not mutually exclusive. As stated previously, a failure to
impeach constitutes ineffective assistance when there is a reasonable probability that, absent
counsel’s failure, the jury would have had reasonable doubt of the petitioner’s guilt.” Orr, 636
F.3d at 952. Officer Mueller’s testimony and the alleged comments on the dispatch tape do not
come close to casting reasonable doubt on Watkins’ guilt. Because Watkins cannot establish
ineffective assistance was the cause of his procedural default or that he was prejudiced by it, his
procedural default on this claim cannot be excused.
In ground eight, Watkins contends that the prosecutor suppressed evidence and used
testimony that she knew to be false, and as a result he was prejudiced. In Brady v. Maryland, the
Supreme Court held that “the 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 v. Maryland, 373 U.S. 85,

3

The Court does not have a copy of the dispatch recording or transcript. The Court is assuming that Watkins’
transcript of the recording in his Petition is accurate. [Doc. 1 at 24.]

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87 (1963). In this case, the Court finds that Watkins provides no support for a Brady violation
regarding the transcript of the dispatch call. Second, it cannot be shown that the officers’
testimony was “perjured” or that the government knew or should have known that any of
Phillips’ statements constituted perjury. Officer Mueller did not mention that he “circled”
around in his trial testimony, but that does not make his testimony inconsistent. Further, a mere
inconsistency in statements is not enough to support a perjury charge. It is not likely that the
outcome of the case would have been different, because the victim identified Watkins in a lineup and he was arrested soon after being observed driving her car. When he was arrested, he had
the victim’s personal items in his possession. Therefore, Watkins has shown no prejudice from
the radio dispatch tapes not being produced at trial. Because Watkins has failed to establish
cause and prejudice for the default of Grounds seven and eight, habeas relief on these claims will
be denied.
IV.

Conclusion
Based on the foregoing, the Court finds that Watkins’ request for relief pursuant to 28

U.S.C. § 2254 should be denied. The Court finds that the state court’s findings and conclusions
regarding Watkins’ claims were not contrary to, nor do they involve an unreasonable application
of clearly established federal law as determined by the Supreme Court of the United States, nor
did they result in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings. Further, because Watkins has made no
showing of a denial of a constitutional right, the Court will not issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).

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Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is DENIED. [Doc. 1.]
IT IS FURTHER ORDERED that a separate judgment will be entered this same date.
IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by
Kenneth Watkins for a Certificate of Appealability will be DENIED.

Dated this 26th day of May, 2016.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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