Ray v. Wallace

Filing 20

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. [Docs. 1 and 54.]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 Damien Ray for a Certificate of Appealability will be DENIED. Signed by Magistrate Judge Nannette A. Baker on 3/23/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAMIEN RAY,
Petitioner,
v.
IAN WALLACE,
Respondent

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Case No. 4:12-CV-2400 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Damien Ray’s (Ray) Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 5.] Respondent Ian Wallace filed a
response. [Doc. 12.] Ray filed a Reply Memorandum. [Doc. 18.] The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c)(1). [Doc. 15.] For the reasons set forth below, Ray’s Petition for Writ of Habeas
Corpus will be denied.
I.

Background
Ray was convicted of robbery in the first degree and armed criminal action after a jury

trial. The evidence presented in the light most favorable to the jury verdict is as follows 1: At
approximately 1:30 a.m. on July 1, 2007, Lester Hash patronized a Shell gas station and
convenience store where he noticed Ray sitting in the back seat of a white sports utility vehicle
(SUV) looking at him as he walked into the store. While Hash was inside the store, he looked at
the SUV again. Ray was still looking at Hash and talking to the other people inside the SUV.

1

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(e).

Hash again glanced at the SUV while he was in line, and saw that Ray was still looking at him.
When Hash exited the store, Ray began to talk to him as he walked to his truck. After Hash got
into his truck, he attempted to close the door, but Ray stepped in between the door and truck and
held the door open. Ray offered to sell Hash drugs, which Hash declined. Hash tried to close the
door when Ray pulled out a gun. Ray jammed the gun into Hash’s stomach, telling Hash to give
him $100.00 or Ray would fire the gun. Hash gave Ray all the money he had, which was about
$120.00. Ray then got back into the SUV.
Hash called the police. Upon Officer Sean Lipina’s arrival, Hash described the SUV to
the officer as a white Ford Expedition with license plate number 411-RKF. Hash described Ray
as being a black male; approximately five foot ten, one hundred and sixty to one hundred and
seventy pounds; and wearing a blue shirt, black pants, and tattoos on his left forearm. About
three hours later, Sergeant Bryan McGynn stopped a white SUV matching the description of the
one Ray had occupied at the time of the robbery. Officer Lipina determined that Ray matched
Hash’s physical description of the man who robbed him, and that the vehicle was also an exact
match for the description given by Hash. That same day, Hash viewed a physical line-up, which
consisted of Ray and three other similar looking inmates. Hash identified Ray as the robber,
claiming he was one hundred percent certain of the identification. Ray was charged with firstdegree robbery and armed criminal action. (Resp’t Ex. B at 15-16.) A jury returned a guilty
verdict on both counts. (Resp’t Ex. B at 54, 56.) Ray received two 20 year concurrent sentences
for both convictions. (Resp’t Ex. B at 73-76.)
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,

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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.
§ 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 in the State court
proceeding. 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 (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. at 72. 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).

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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)).
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 unreasonable.” 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
Ray presents five grounds for relief. 2 Ray alleges three trial court errors. First, he states

that the trial court erred in denying his motion to suppress Hash’s out-of-court and in-court
identifications. Ray also contends that the Rule 29.15 post-conviction motion court erred in
appointing independent counsel for three potential witnesses, because it violated Ray’s due
process right and his right to present a defense at his post-conviction evidentiary hearing. Ray
2

Ray lists six grounds, but grounds two and six will be considered together.

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also asserts that the Rule 29.15 post-conviction motion court should have granted immunity to
the three witnesses so that they would testify at the post-conviction evidentiary hearing.
Ray also asserts two ineffective assistance of counsel claims. Ray asserts that trial
counsel was ineffective for failing to call three witnesses and failing to object to and preserve for
review the use of peremptory strikes against three female venirepersons.
A.

Trial Court Error (Grounds 1, 4, and 5)
1.

Failure to Suppress Out of Court Identifications (Ground 1)

Petitioner’s first ground for relief states that the trial court erred in overruling his motion
to suppress out-of-court identifications, because the identifications were unduly suggestive,
created a substantial likelihood of misidentification, were inherently unreliable, and violated his
rights. The Supreme Court has recognized, “state and federal statutes and rules ordinarily govern
the admissibility of evidence, and juries are assigned the task of determining the reliability of the
evidence presented at trial.” Perry v. New Hampshire, 132 S.Ct. 716, 723 (2012). There is a
“due process check on the admission of eyewitness identification, applicable where police have
arranged suggestive circumstances leading the witness to identify a particular person as the
perpetrator of a crime.” Perry, 132 S.Ct. at 720. Reliability is the “linchpin” in determining the
admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The
factors to be considered in determining admissibility are the following: (1) the opportunity of
the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention,
(3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at
the confrontation, and (5) the time between the crime and the confrontation. Id. “Against these
factors is to be weighed the corrupting effect of the suggestive identification itself.” Id. “The
existence of each factor is a factual determination to be made by the state court … and is entitled

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to the requisite presumption of correctness.” Palmer v. Clarke, 408 F.3d 423, 435-36 (8th Cir.
2005). “The admissibility of evidence in a state trial is a matter of state law,” and habeas relief
will be granted only if the “state court’s evidentiary ruling infringes upon a specific
constitutional protection or is so prejudicial that it amounts to a denial of due process.” Palmer,
408 F.3d at 436.
In this case, Ray filed a motion to suppress identification. (Resp’t Ex. B. at 33-34.) The
trial court took the motion with the case. Hash testified that when he was robbed, he noticed that
the robber had tattoos on his arm. (Resp’t Ex. A at 179.) After Hash left St. Louis, he received a
phone call from police. The police informed Hash that they had stopped the white SUV and
there was a gentleman matching the description of the robber and he needed to come identify
him. (Resp’t Ex. A at 186, 205.) Hash returned to St. Louis and viewed a physical line-up.
(Resp’t Ex. A at 186-89, 206-8) Hash selected Ray as the person who robbed him and stated he
was one hundred percent positive of the identification. (Resp’t Ex. A at 186-89.)
Ray contends that the trial court erred in allowing Hash’s out of court and in court
identifications, because Officer Lipina gave Hash the impression that the robber was present in
the physical line-up when Hash had little to no independent basis for the identification. The
Missouri Court of Appeals denied Ray’s appeal, stating that under state law, identifications are
not impermissibly suggestive because a witness knows a lineup includes a suspect whom the
police believe the witness might identify. (Resp’t Ex. E at 5-6.) The court of appeals found that
it is implicit that the line-up may include the person police suspect as the perpetrator of the
crime. The state court also found that only having two men in the lineup with tattoos was not
unduly suggestive, because courts only require reasonable efforts by police to find physically
similar participants for a photographic lineup. (Resp’t Ex. E at 6.)

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Based on a review of the evidence regarding the identification, the Court will deny relief
on this claim. “A lineup is not made unnecessarily suggestive due to the number of non-suspects
in a lineup or because the non-suspects are different from a suspect in physical appearance or
attire.” Collins v. Bowersox, No. 4:04-CV-1194 RWS, 2007 WL 2231040 at *10 (E.D. Mo. Jul.
31, 2007). “A police station is not a theatrical casting office, and all that is required is that a
reasonable effort is made to find physically similar participants.” Id. Ray has failed to provide
evidence that the non-suspects in the line-up where so physically dissimilar that the physical
line-up was unduly suggestive.
Even assuming that the line-up was unduly suggestive, the physical lineup identification
did not result in a substantial likelihood of misidentification. U.S. v. Johnson, 56 F.3d 947, 954
(8th Cir. 1995) (even assuming procedure was impermissibly suggestive because petitioner was
the only person in lineup in jail uniform; based on totality of circumstances, lineup procedures
did not result in substantial likelihood of misrepresentation). In this case, several factors lend to
the reliability of the lineup identification, which is the linchpin in determining admissibility.
First, Hash observed Ray at a very close distance during the robbery. Second, Hash was able to
provide accurate details about Ray’s clothing, observed that Ray had tattoos, and gave the police
a correct description of the SUV’s license plate number. Third, Hash was very confident in his
identification. Finally, the time between the robbery and the identification was a few hours.
Officer Lipina’s indication that Hash had selected the suspect had no bearing on Hash’s
identification of Ray, because Lipina’s affirmation did not occur until after Hash had selected
Ray as the person who robbed him.
Based on the foregoing, the Court finds that the state appellate court’s findings and
conclusions were not contrary to, nor do they involve an unreasonable application of clearly

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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 regarding the physical line-up and subsequent
identification of Ray at trial.
2.

Grounds 4 and 5

Ray asserts two claims regarding his Rule 29.15 post-conviction proceedings.

He

contends that the trial court erred in appointing counsel to advise his three witnesses and the
court should have granted “use immunity” to the witnesses after they asserted their Fifth
Amendment right not to testify. Respondent contends that Ray’s claims are not cognizable on
federal review.
Ray presented these claims to the Missouri Court of Appeals in his pro se and amended
appeals of the denial of his Rule 29.15 motion. The appellate court declined to review the
claims, because the claims were not raised in the post-conviction motion presented to the Rule
29.15 motion court.

“An infirmity in state post-conviction proceedings does not raise a

constitutional issue cognizable in a federal habeas petition.” Gee v. Groose, 110 F.3d 1346,
1351-52 (8th Cir. 1997) (quoting Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir. 1994)). There is no
constitutional right to state post-conviction proceedings, as such irregularities in these
proceedings do not rise to the level of a constitutional violation. Pennsylvania v. Finley, 481
U.S. 551, 557 (1987); Williams v. Missouri, 640 F.2d 140, 143-44 (8th Cir. 1981). Therefore,
Ray’s claims in Grounds 4 and 5 are not cognizable in this federal habeas petition. Even if the
Court could review Ray’s claims, these claims lack merit as discussed below.

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a.

Appointment of Counsel for Witnesses (Ground 4)

Ray contends that the trial court erred in appointing counsel for three witnesses, Anthony
Doll, Jarvis Smith, and Emmanuel Harrison at his Rule 29.15 post-conviction evidentiary
hearing. Doll, Smith, and Harrison were allegedly in the car with Ray at the time of the robbery.
Smith is Ray’s brother. Ray’s initial post-conviction counsel subpoenaed the three witnesses to
testify at the Rule 29.15 evidentiary hearing. Although it is not in the transcript of the Rule
29.15 evidentiary hearing, the state’s attorney notified the court of possible self-incrimination by
the three witnesses who Ray testified were in the SUV with him on the day of the robbery. The
Rule 29.15 motion court appointed one attorney who spoke to all three witnesses.

The

witnesses’ appointed attorney represented to the court that Doll, Smith, and Harrison wished to
assert their Fifth Amendment right against self-incrimination. The state’s attorney stipulated, at
post-conviction counsel’s suggestion, that all three witnesses would assert their rights under the
Fifth Amendment.

Without further inquiry, the post-conviction motion court released the

witnesses from testifying.
Ray contends that the state committed misconduct in raising the issue of potential selfincrimination. Ray also contends that appointing counsel for these three witnesses caused a
manifest injustice and miscarriage of justice, because the appointment of counsel denied his
rights to due process of law and to present a defense. In his habeas petition, Ray has included an
affidavit from Jarvis Smith stating that appointed counsel told him that if he testified, he would
be “falsely accused as an accessory to the crime and be placed behind bars with Damien T. Ray.”
[Doc. 5 at 15-16.]

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“The Self-Incrimination Clause of the Fifth Amendment guarantees that no person shall
be compelled in any criminal case to be a witness against himself.” Withrow v. Williams, 507
U.S. 680, 688 (1993).

“Nothing in the Fifth Amendment, or in any other constitutional

provision, provides a means for overcoming this privilege once a potential witness has invoked
it.” U.S. v. Blaylock, 421 F.3d 758, 770 (8th Cir. 2005) (citing United States v. Moussaoui, 382
F.3d 453, 466 (4th Cir. 2003)). Ray’s Sixth Amendment right to compulsory process does not
include the right to compel any of the witnesses to waive his or her Fifth Amendment privilege
against self-incrimination. Blaylock, 421 F.3d at 770. “[W]hen a defendant’s Sixth Amendment
rights and a witness’s Fifth Amendment rights collide, an accused’s right to compulsory process
must give way to the witness’s Fifth Amendment privilege not to give testimony that would tend
to incriminate him.” Culkin v. Purkett, 45 F.3d 1229, 1233 (8th Cir. 1995).
In this case, Ray has not alleged that the trial court or the state’s attorney threatened or
intimidated Doll, Smith, or Harrison, which would be clearly inappropriate. Ray alleges that the
state’s attorney should not have raised the issue of potential self-incrimination and the court
should not have appointed counsel to advise the witnesses of their Fifth Amendment right not to
incriminate themselves. Missouri Supreme Court Rule 4.3 states that a lawyer “shall not give
advice to an unrepresented person, other than the advice to secure counsel.” The Missouri
Supreme Court has also found that prosecutors have a duty to request the court advise a witness
of his right against self-incrimination. See State v. Grays, 856 S.W.2d 87, 91 (Mo. Ct. App.
1993) (citing State v. Miller, 485 S.W.2d 435, 441 (Mo. 1972) (Missouri Supreme Court found
prosecutorial duty to ensure witness was aware of his rights). “Although a witness may freely
invoke his privilege against self-incrimination even at the expense of the defendant’s right to
present a defense, the government cannot substantially interfere with a defense witness’s

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decision to testify.” United States. v. Pablo, 696 F.3d 1280, 1295 (10th Cir. 2012) (citing United
States v. Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005)). “Whether substantial government
interference occurred is a factual determination.” United States v. True, 179 F.3d 1087, 1090
(8th Cir. 1999).
Ray has not provided any legal authority holding that a state’s attorney cannot inform the
court that an unrepresented witness’s testimony may implicate the witness’s Fifth Amendment
right against self-incrimination. To the contrary, the state’s attorney had an obligation to do so.
As stated above, Ray’s Sixth Amendment right to present his defense must yield to another’s
Fifth Amendment right against self-incrimination. No federal constitutional violation is found
based solely on a state’s attorney informing the court that a witness’s testimony may implicate
the witness’s Fifth Amendment rights.
Next, the trial court’s appointment of counsel cannot be considered improper. In Webb v.
Texas, the Supreme Court held that a defendant’s Sixth Amendment rights were violated when a
trial judge gave a lengthy admonition to a defense witness about lying and perjury, but had failed
to provide the same admonition to any of the prosecution witnesses. Webb v. Texas, 409 U.S.
95, 97 (1972). In Webb, the trial judge “implied that he expected the witness to lie, and went on
to assure him that if he lied, he would be prosecuted and probably convicted for perjury, the
sentence for that conviction would be added on to his present sentence, and that the result would
be to impair his chances for parole.” Id. Not surprisingly, the witness was so intimidated that he
refused to testify. Id. The Supreme Court held that the trial judge’s “threatening remarks,”
effectively “drove that witness off the stand.” Id. No such conduct occurred in this case. The
record does not even indicate that the judge spoke directly to the witnesses. Ray has not alleged
any federal constitutional violation in the Rule 29.15 post-conviction motion court’s appointment

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of counsel for his witnesses. See Graham v. Symmes, No. 10-2404 JNE/JJK, 2011 WL 2693659
at *7-14 (D. Minn. May 19, 2011) (decision by trial court not to compel witnesses or their
attorneys to explain how their testimony would incriminate the witness did not violate
petitioner’s right to present a defense); Taylor v. Cain, 649 F.Supp.2d 460, 482-84 (E.D. La.
2009) (the prosecutor’s actions of informing witnesses of Fifth Amendment implication in
testimony and court’s appointment of counsel to represent them was proper).
Finally, the Smith’s affidavit does not affect the Court’s findings. Smith’s affidavit
alleges no wrongdoing on the part of the state or the Court. Smith’s affidavit asserts that
appointed counsel advised him not to testify, because he would be “falsely” accused as an
accessory to the crime and placed behind bars. [Doc. 5 at 15-16.] Notwithstanding Smith’s
characterization of appointed counsel’s advice, this affidavit does not support a claim against the
state or the court that would be reviewable in Ray’s habeas petition.
b.

Failure to Offer Witnesses Immunity (Ground 5)

Ray also asserts that the trial court should have granted Doll, Smith, or Harrison “use
immunity” so that they could testify on his behalf. In Missouri, neither prosecutors nor judges
have inherent power to grant immunity. State v. Culkin, 791 S.W.2d 803, 815 (Mo. Ct. App.
1990). The power to grant immunity comes from the legislature. Id. Missouri statutory law
allows a judge to compel a witness to testify and produce evidence only upon the approval of a
verified application for witness immunity from the prosecuting attorney.

Mo. Rev. Stat.

§ 491.205.2. Because the trial court cannot sua sponte grant immunity to a witness or require the
prosecuting attorney to grant immunity, Ray’s claim in ground 5 fails as a matter of law.
Based on the foregoing, the Court finds that grounds 4 and 5 are not cognizable on
federal habeas review and the state appellate court’s findings and conclusions were not contrary

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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 regarding Ray’s Sixth Amendment rights. Even if the Court could review
these claims, the claims lack merit. Therefore, the Court will deny relief on grounds 4 and 5.
B.

Ineffective Assistance of Counsel Claims (Grounds 2, 3, and 6)

Ray presents two ineffective assistance of counsel claims. Ray asserts that trial counsel
was ineffective for failing to call three witnesses who were with him at the gas station and failed
to preserve for appellate review the prosecutor’s discriminatory use of peremptory strikes based
on gender. “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.”

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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
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.
1.

Failure to Call Witnesses (Grounds 2 and 6)

In the first claim of ineffective assistance of counsel, Ray asserts that trial counsel failed
to investigate and call as witnesses Doll, Smith, and Harrison. Ray contends that their testimony
would have provided a viable defense that he did not commit the charged offenses and but for

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trial counsel’s ineffectiveness, there was a reasonable probability that the trial result would have
been different.
At his sentencing, Ray testified that he gave trial counsel the names of all of the
witnesses that could help him at trial and named two witnesses- Doll and Harrison. (Resp’t Ex.
A at 320-21.) Trial counsel told the court that his investigator made every effort to try and
contact the witnesses and discuss the case with them. (Resp’t Ex. A at 323-24.) At the Rule
29.15 post-conviction hearing, Ray and his trial counsel testified. Ray testified that he told his
counsel that he wanted Doll, Smith, and Harrison to testify on his behalf at trial, because they
were with him on the night of the robbery. (Resp’t Ex. F at 7.) Ray testified that his trial
counsel told him that Doll was not credible, because he would testify that Ray was wearing the
same color T-shirt that the victim stated that he was wearing. (Resp’t Ex. F at 8-9.) Ray also
testified that he gave his counsel the addresses and phone numbers for Smith and Harrison, but
counsel informed him that his caseload was overloaded so the investigator couldn’t get a hold of
them. (Resp’t Ex. F at 9-10.) Ray’s trial counsel testified that his investigator had a telephone
interview with Harrison and maybe Smith, but he did not call them as witnesses. (Resp’t Ex. F
at 19-21.)
The Rule 29.15 motion court denied Ray’s Rule 29.15 post-conviction motion and the
Missouri Court of Appeals affirmed. (Resp’t Ex. G at 28-39, J.) The court of appeals stated that
Ray failed to prove that trial counsel’s decision to forgo calling Doll, Smith, and Harrison did not
conform to the degree of skill and diligence of a reasonably competent attorney. (Resp’t Ex. J at
5.) The court of appeals noted that Ray did not meet his burden to show that the witnesses would
have testified at trial, especially in light of the fact that all three witnesses invoked their Fifth
Amendment rights and did not testify at the Rule 29.15 hearing. (Ex. J. at 5.) The court of

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appeals also noted that Ray could not prove that the witnesses would have provided a viable
defense, because Ray testified that he was at the gas station at the time of the robbery and offered
Hash drugs. Hash testified that Ray, the person who offered him drugs, then robbed him. Hash
also provided the police with the correct license plate number of the SUV and identified Ray in a
line-up.
Trial counsel’s failure to call witnesses is presumed to be reasonable trial strategy.
“Decisions relating to witness selection are normally left to counsel’s judgment and this
judgment [should not] be second guessed on hindsight.” Williams v. Armontrout, 912 F.2d 924,
934 (8th Cir. 1990). An attorney’s decision not to interview or call a particular witness must be
viewed from the perspective of counsel at the time the decision was made. U.S. v. Williams, 562
F.3d 938, 941 (8th Cir. 2009). “To establish prejudice from counsel’s failure to investigate a
potential witness, a petitioner must show that the witness would have testified and that their
testimony probably would have changed the outcome of the trial.” Siers v. Weber, 259 F.3d 969,
974 (8th Cir. 2001). “In conducting this analysis, [the Court considers]: (1) the credibility of all
witnesses, including the likely impeachment of the uncalled defense witnesses; (2) the interplay
of the uncalled witnesses with the actual defense witnesses called; and (3) the strength of the
evidence actually presented by the prosecution.” Id. There is no prejudice if, factoring in the
uncalled witnesses, the government’s case remains overwhelming. Armstrong v. Kemna, 590
F.3d 592, 605 (8th Cir. 2010).
The Court finds that the state court’s decision findings and conclusions 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

16

court proceedings regarding the failure to call witnesses. Trial counsel’s decision not to call
witnesses who could also be implicated in the robbery was reasonable trial strategy. Ray cannot
show that the witnesses would have waived their Fifth Amendment rights and testified on his
behalf at trial. The witnesses all exercised their right not to testify on his behalf at the Rule
29.15 hearing. Further, Ray cannot show prejudice. Even if the witnesses testified that Ray did
not rob Hash, the government’s case is overwhelming. Ray testified that he was at the gas
station at the time of the robbery and offered Hash drugs. A few hours after the robbery, Hash
identified Ray as the robber and accurately identified the car Ray was riding in during the
robbery. Therefore, the Court will deny relief on this claim.
2.

Failure to Object and Preserve Issue for Appeal (Ground 3)

Finally, Ray states that trial counsel was ineffective for his failure to object to and
preserve for appeal the prosecution’s discriminatory peremptory strikes based on gender. The
Respondent contends that this claim is procedurally defaulted and lacks merit.
“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). 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.

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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.
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

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Martinez, 132 S.Ct. at 1320) (holding does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings).
In this case, Ray’s discriminatory peremptory strikes claim is defaulted. At the outset,
the venirepersons mentioned by Ray were stricken for cause, the strikes were not peremptory
strikes. Ray’s counsel did not object to the strikes for cause at trial. Moreover, Ray did not
present a claim of ineffective assistance of trial counsel for failure to object to the prosecutor’s
strikes for cause in the appeal of the denial of his Rule 29.15 post-conviction motion.
Further, the undersigned finds that Ray has not established cause and prejudice to excuse
the default. Ray states that he received ineffective assistance of initial post-conviction counsel,
which should excuse default of his claims. But, initial post-conviction counsel included these
claims in the amended Rule 29.15 motion 3. (Resp’t Ex. G at 23). Evidence regarding the jury
strikes was also presented at the Rule 29.15 evidentiary hearing. (Resp’t Ex. F at 9-13, 21-25.)
Ray’s appellate post-conviction counsel did not include the claim in the post-conviction appeal
to the Missouri Court of Appeals. The failure to preserve claims on appeal from a postconviction proceeding cannot constitute cause for default. See Arnold v. Dormire, 675 F.3d
1082, 1087 (8th Cir. 2012) (citing Martinez, 132 S.Ct. at 1320). Therefore, Ray’s default cannot
be excused.
Even if Ray’s claims were not defaulted, the undersigned finds that Ray’s claim lacks
merit. “[The] proper test for exclusion of a juror for cause is whether the juror’s views would
prevent or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.”

Sweet v. Delo, 125 F.3d 1144, 1156 (8th Cir. 1997) (citing

3

Initial post-conviction counsel incorporated Ray’s original 29.15 motion including his claims regarding the jury
strikes into the amended Rule 29.15 motion. (Resp’t Ex. G at 23.)

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Wainwright v. Witt, 469 U.S. 412, 424 (1985)). Deference must be given to the trial judge who
sees and hears the juror. Wainwright, 469 U.S. at 426.
Ray claims that three venirepersons Kimberly Wilkens, Melissa Cook, and Sara Martin
were stricken based solely on gender. During jury selection, Wilkens stated that due to her
cousin’s conviction, she could not be fair to both sides, she would follow her own heart instead
of the court’s instructions, including regarding the elements of the offense. (Tr. 16-18, 29-30,
37, 40.) The state struck Wilkens for cause and Ray’s counsel did not object. (Resp’t Ex. at
130.) At the Rule 29.15 evidentiary hearing, trial counsel testified that the state had grounds to
strike Wilkins for cause. (Resp’t Ex. F at 23.) During jury selection, Cook stated that she would
not want to decide a case “based off of testimony.” (Resp’t Ex. A at 41-42.) The state struck
Cook for cause and Ray’s counsel did not object. (Resp’t Ex. A at 130.) At the Rule 29.15
evidentiary hearing, trial counsel testified that the state had grounds to strike Cook for cause.
(Resp’t Ex. F at 23-24.) During jury selection, Martin stated that she would have difficulty
assessing conflicting information and determining credibility, she would hold the state to a lesser
standard, and that she could not be fair to both sides due to the type of charges involved. (Tr. 5052, 63, 99.) The state struck Martin for cause and Ray’s counsel did not object. (Resp’t Ex. at
130.) At the Rule 29.15 evidentiary hearing, trial counsel testified that the state had grounds to
strike Martin for cause. (Resp’t Ex. F at 24-25.) Based on the foregoing, the Court finds that
Ray has not shown any constitutional error in the strikes for cause. Further, Ray has not
demonstrated that he was prejudiced by the strikes of these three venirepersons. Therefore, the
Court will deny relief on ground 3.

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IV.

Conclusion

Based on the foregoing, the Court finds that Ray’s request for relief pursuant to 28 U.S.C.
§ 2254 should be denied.

Further, because Ray 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).
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is DENIED. [Docs. 1 and 5 4.]
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 Damien
Ray for a Certificate of Appealability will be DENIED.
Dated this 23rd day of March, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

4

There are two Petitions, because Ray’s original Petition [Doc. 1] was not signed. The Court ordered Ray to submit
a signed copy of the Petition. [Doc. 3.] The signed copy of the Petition is Document 5.

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