Hollins v. Wallace

Filing 19

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Casey Hollins. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. 2254 be denied and be dismissed wi th prejudice by separate judgment entered this date.IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 2/29/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CASEY HOLLINS,

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Petitioner,
vs.
IAN WALLACE,
Respondent.

Case No. 4:13CV00039 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Casey Hollins for a Writ of Habeas
Corpus under 28 U.S.C. ' 2254.
I. Procedural History
Hollins is currently incarcerated at Southeast Correctional Center in Charleston, Missouri,
pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri.
(Respt’s Ex. B at 94-97.)
The state charged Hollins with two counts of assault in the first degree, two counts of
armed criminal action, and two counts of unlawful use of a weapon for shooting at Tamara
Williams and injuring Lorenzo Phillips. Id. at 21-23. On June 2, 2009, a jury found Hollins
guilty of the three counts involving Williams, and not guilty of the three counts involving Phillips.
Id. at 83-88. The court sentenced Hollins to concurrent terms of twenty-five years’ imprisonment
for the assault in the first degree and armed criminal action counts, and fifteen years’
imprisonment for the unlawful use of a weapon count. Id. at 94-97.
Hollins raised two points on direct appeal of his convictions. (Respt’s Ex. C.) In his first
point, Hollins argued that the trial court plainly erred and exceeded its jurisdiction in sentencing
Hollins to the Class A felony of assault in the first degree, in that the offense was charged as a
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Class B felony in the indictment and was submitted to the jury as a Class B felony. Id. at 8. In
his second point, Hollins argued that the trial court erred in denying his motion for judgment of
acquittal at the close of all evidence on Count I because the state failed to prove beyond a
reasonable doubt that Hollins intended to shoot at Williams. Id. at 9. The Missouri Court of
Appeals granted Hollins’s first point on appeal, holding that the trial court erred and exceeded its
jurisdiction in sentencing Hollins to the Class A felony of assault in the first degree when the
offense was charged as a Class B felony in the indictment and was submitted to the jury as a Class
B felony. (Respt’s Ex. E at 2.) The court remanded to the trial court with directions to correct
the clerical error on the written judgment, changing it to reflect the Class B felony of assault in the
first degree. Id. at 3. The court denied Hollins’s second point on appeal and found that there was
sufficient evidence from which the jury could have found that Williams was Hollins’s intended
target. Id. at 4.
Hollins filed a pro se motion for post-conviction relief under Rule 29.15. (Respt’s Ex. F
at 3-30.) After appointment of counsel, Hollins filed an amended post-conviction relief motion
and request for evidentiary hearing, in which he alleged the following ineffective assistance of
counsel claims: (1) trial counsel was ineffective for failing to object during the cross-examination
of Hollins when the prosecutor improperly asked Hollins about a prior arrest for assault in the
second degree that had not resulted in a conviction; (2) trial counsel was ineffective for failing to
object, or to move to strike, on hearsay and Confrontation Clause grounds, Tamara Williams’
testimony that she had heard rumors that Hollins had told others that if Hollins did not get the
person responsible for shooting him, he would get Williams; (3) trial counsel was ineffective for
failing to submit a lesser-included instruction on the Class C felony of assault in the second degree;
and (4) trial counsel was ineffective for failing to object when the prosecutor elicited Tamara
Williams’ testimony that her neighbors had been grazed by bullets allegedly fired by Hollins. Id.
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On September 20, 2011, the motion court denied Hollins’ amended motion and request for an
evidentiary hearing. Id. at 69-73.
Hollins raised the same claims on appeal from the denial of post-conviction relief that he
raised in his amended post-conviction motion. (Respt’s Ex. G.) The Missouri Court of Appeals
affirmed the decision of the motion court. (Respt’s Ex. I.)
Hollins filed a Petition in the instant habeas action on January 7, 2013, raising the
following grounds for relief: (1) the evidence was insufficient to support his conviction of first
degree assault; (2) trial counsel was ineffective for failing to object to the state’s
cross-examination of him about a prior arrest for an assault charge that did not result in a
conviction; (3) trial counsel was ineffective for failing to object on hearsay and Confrontation
Clause grounds when Williams stated that she had heard rumors that Hollins wanted to harm her;
(4) trial counsel was ineffective for failing to object to Williams’ testimony that some of his shots
struck additional persons; and (5) trial counsel should have submitted an instruction on the
lesser-included offense of assault in the second degree. (Doc. 1.)
On January 11, 2013, Hollins filed a Motion to Amend Petition (Doc. 5), in which he
requested leave to add the following twelve grounds for relief:
(A) Counsel failed to: investigate, interview, and call Officer Kara Roberts,
(B) Officer Enoch Chambers, and
(C) Officer Burgoon;
(D) Counsel failed to: request a lesser-included instruction of Assault 2nd degree,
(E) investigate and depose Tamara Williams,
(F) object to hearsay testimony,
(G) call Enoch Chambers to impeach Williams with prior inconsistent statements,
(H) call Kara Roberts to impeach Tamara Williams’ prior inconsistent statements,
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(I) object to prosecutor’s questions of an uncharged assault;
(J) Prosecutor misconduct (Brady violation),
(K) Counsel failed to file a discovery motion, and
(L) failed to object to introduction of testimony not in evidence and uncharged
crimes.
Id. at 3. On April 15, 2013, Respondent filed a Response to Order to Show Cause, in which he
argued that Hollins’ Motion to Amend should be denied because Hollins’ claims lack
particularized facts, and eight of the proposed claims are procedurally defaulted. (Doc. 10.)
Respondent also argued that all of Hollins’ claims raised in the original Petition and the Motion to
Amend fail on their merits. The Court granted Hollins’ Motion to Amend, but noted that the
Court was not finding that Hollins’ new grounds for relief were timely, that they had not been
procedurally defaulted, or that they were meritorious. (Doc. 13.)
II. Facts
The Court’s summary of the facts below is taken from the decision of the Missouri Court of
Appeals on direct appeal. (Respt’s Ex. E at 1-2.)
On June 20, 2008, Hollins drove by the building where Tammy Williams (“Williams”)
lived, and shouted that he was “healed up”, that it was “time for war”, and that he was about to get
revenge. Hollins had been shot by a person standing outside Williams’ building earlier in the
month. About fifteen minutes after Hollins drove by Williams’ house shouting, Williams was
standing on her porch when she saw Hollins driving on the street in front of her building in a
minivan with the driver’s side closest to the building. Williams could see a gun held partially out
the driver’s side window, and someone yelled to get down. Then Williams heard between seven
and nine gunshots.
Lorenzo Phillips (“Phillips”) was standing next to Williams’ car at the time the shots were
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fired and was struck in the foot by a bullet. Two other people were grazed by bullets.
Hollins was charged with Class B felony assault in the first degree, armed criminal action,
and Class B felony unlawful use of a weapon.
Hollins’ mother, Mariethia Henry (“Henry”) and Kimberly Poston (“Poston”) testified for
Hollins. They stated that on June 19, 2008, Hollins and Henry were at the Wabash Valley
Correctional Center in Indiana where Hollins’ brother was receiving a college degree. They
testified that Hollins stayed with Henry in Indiana until June 21, after which Hollins returned to St.
Louis.

III. Standard of Review
A federal court=s power to grant a writ of habeas corpus is governed by 28 U.S.C. '
2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. ' 2254(d).
The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362
(2000). With respect to the Acontrary to@ language, a majority of the Court held that a state court
decision is contrary to clearly established federal law Aif the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of law@ or if the state court
Adecides a case differently than [the] Court has on a set of materially indistinguishable facts.@
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Id. at 405. Under the Aunreasonable application@ prong of ' 2254(d)(1), a writ may issue if Athe
state court identifies the correct governing legal rule from [the Supreme Court=s] cases but
unreasonably applies [the principle] to the facts of the particular state prisoner=s case.@ Id.
Thus, Aa federal habeas court making the >unreasonable application= inquiry should ask whether
the state court=s application of clearly established federal law was objectively unreasonable.@
Id. at 410. Although the Court failed to specifically define Aobjectively unreasonable,@ it
observed that Aan unreasonable application of federal law is different from an incorrect
application of federal law.@ Id. at 410.
IV. Procedural Default
Respondent contends that Hollins procedurally defaulted Grounds A, B, C, E, G, H, J,
and K by failing to raise these claims in his amended post-conviction motion. Hollins argues
that, if any of his claims are procedurally defaulted, they may be considered under the exception
articulated in Martinez v. Ryan, 132 S.Ct. 1309 (2012). Hollins contends that he raised these
claims in his pro se post-conviction motion. (Doc. 5.)
To avoid defaulting on a claim, a petitioner seeking federal habeas review must have
fairly presented the substance of the claim to the state courts, thereby affording the state courts a
fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark
v. Iowa, 322 F.3d 1018, 1020B21 (8th Cir. 2003) (internal quotation marks and citations omitted)
(quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106
F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his
claims in each appropriate state court before seeking federal habeas review of the claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner
has properly raised the same factual grounds and legal theories in the state courts that he is
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attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks
omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not
fairly presented to the state courts are procedurally defaulted. See id. at 1022.
Absent a showing of cause and prejudice or a miscarriage of justice, a federal habeas court
may not reach the merits of a federal constitutional claim procedurally defaulted due to a
petitioner=s failure to follow applicable state rules in raising the claim in state court. Sawyer v.
Whitley, 505 U.S. 333, 338B39 (1992). “Cause for a procedural default exists where ‘something
external to the petitioner, something that cannot fairly be attributed to him[,]…’ impeded [his]
efforts to comply with the State’s procedural rule.” Maples v. Thomas, 132 S.Ct. 912, 922
(2012) (alternations in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Claims of ineffective assistance of post-conviction appellate counsel cannot constitute
cause to excuse a defaulted claim. Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (“an
attorney's negligence in a postconviction proceeding does not establish cause”). However, the
United States Supreme Court has held that “[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner's procedural default of a claim of
ineffective assistance at trial.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). To meet this
narrow exception for establishing cause, Hollins must demonstrate that post-conviction counsel
was ineffective under the standards of Strickland. Therefore, “[t]o overcome the default, a
prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is
a substantial one, which is to say that the prisoner must demonstrate that the claim has some
merit.” Martinez, 132 S. Ct. at 1318.
Hollins does not allege the factual basis of his claims in his Motion to Amend. Rather, he
merely alleges fragments, with no factual support or explanation as to how the alleged error
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prejudiced him. As will be discussed below, even when the Court considers the facts Hollins
alleged to support his claim in his pro se post-conviction motion, none of his claims are
substantial.
To establish an ineffective assistance of counsel claim, a petitioner must satisfy the
two-part test set forth in Strickland. A habeas petitioner must show his counsel’s performance
fell below professional standards and that his defense suffered prejudice as a result. See
Strickland, 466 U.S. at 694. In evaluating the performance prong of the Strickland test, the basic
inquiry is “whether counsel’s assistance was reasonable considering all the circumstances.” Id.
at 688. Rather than second-guessing counsel’s actions with the benefit of hindsight, the
reviewing court must examine counsel’s conduct with a high degree of deference. Id. at 689.
Counsel’s performance was prejudicial if “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Sherron v.
Norris, 69 F.3d 285, 290 (8th Cir. 1995) (quoting Strickland, 466 U.S. at 694).
The Court will now examine Hollins’ grounds for relief individually to determine whether
he has alleged sufficient cause to excuse his procedural default.
a.

Grounds A, B, C, G, and H

In Grounds A, B, C, G, and H, Hollins claims that trial counsel should have investigated
and called Officer Kara Roberts (Grounds A and H), Officer Enoch Chambers (Grounds B and
G), and Officer Burgoon (Ground C) to testify about statements made by Williams and about the
crime scene.
Officer Roberts authored an Incident Report, in which she reported that Williams stated
that she was sitting on her front porch when she observed Hollins start shooting. (Respt’s Ex. F
at 12.) Roberts noted that Williams then dropped to the ground, and heard ten to twenty shots
fired. Id. Roberts indicated that Williams observed Phillips limping in front of her residence.
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Id. In his pro se post-conviction motion, Hollins argued that this report refutes Williams’ trial
testimony that she was shot at, and lists Williams as a victim of property damage. (Respt’s Ex. F
at 10.)
Officer Chambers authored a Supplemental Report, in which he indicated that he
re-interviewed Williams. Id. at 18. Chambers reported that Williams stated that she knew
Hollins and that Hollins believed Williams’ boyfriend was responsible for shooting him in a
previous shooting. Id. Chambers indicated that Williams reported that Hollins drove by her
residence thirty minutes prior to the shooting and told her he was going to kill her if he could not
get her boyfriend. Id. Chambers stated that Williams reported she was walking out of her
apartment with a friend when Hollins started shooting. Id. Hollins argued in his pro se
post-conviction motion that Williams’ statements to Chambers contradicted her trial testimony, in
which she testified she was standing on her porch when the shooting began. (Respt’s Ex. F at
15.)
Officer Burgoon authored an Evidence Technicians Report, in which he listed the
evidence seized at the scene. Id. at 21. Hollins argued in his pro se motion that Burgoon’s
testimony would show that the crime occurred at street level. (Respt’s Ex. F at 20.)
At trial, Williams testified that, on the day of the crime, Hollins drove by her residence
and shouted out that it was time for war and he was going to get revenge. (Respt’s Ex. A at 75.)
Williams testified that she did not know who Hollins believed had shot him in a previous
shooting. Id. Williams testified that fifteen to twenty minutes later, she was standing on her
front porch when Hollins drove by her residence again and started shooting. Id. at 77-80. She
stated that Phillips was shot and others in the area were grazed with a bullet. Id. at 82.
Defense counsel questioned Williams on cross-examination regarding her account of the
events, including her statements to police. Id. at 83-126. Williams testified that she had spoken
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to multiple officers on the day of the incident, and that she did not remember the names of any of
the officers. Id. at 85-86. Defense counsel questioned Williams regarding statements she made
to police that were inconsistent with her trial testimony, including her statement to Officer
Chambers that Hollins believed that Williams’ boyfriend was responsible for the shooting (Id. at
87-88, 90-94), and her statement to police that Hollins was holding the gun with both hands (Id. at
114-17). He also questioned Williams regarding her failure to report to the officers that two of
her neighbors had been grazed by a bullet. (Id. at 83-86, 98-99, 109.)
The parties stipulated to the admission of the photographs that Officer Burgoon took and a
report on the evidence that Officer Burgoon seized. Id. at 131-32.
Trial counsel was not ineffective in failing to call Officers Roberts ,Officer Chambers, or
Officer Burgoon. The record reveals that defense counsel questioned Williams extensively on
cross-examination regarding inconsistent statements made to police. With regard to Officer
Burgoon, his photographs and report were admitted. Hollins cannot show that his trial would
have been different had defense counsel called these officers to testify. Thus, Hollins has not
demonstrated that his post-conviction counsel failed to raise a substantial claim of ineffective
assistance of trial counsel. Hollins is, therefore, unable to establish “cause” for his procedural
default of Grounds A, B, C, G, or H.
b.

Ground E

Hollins argues that trial counsel failed to depose Williams. In his pro se post-conviction
motion, Hollins argued that, if trial counsel had deposed Williams prior to trial, he could have
impeached her trial testimony and he would have been prepared for her testimony that two other
people had been shot. (Respt’s Ex. F at 23.)
As previously discussed, defense counsel aggressively cross-examined Williams
regarding her inconsistent statements.

Defense counsel specifically questioned Williams
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regarding her failure to disclose the other two victims of the shooting to police. (Respt’s Ex. A at
83-86, 98-100, 109-10.) Hollins’ claim that Williams would have testified regarding the other
two victims during a deposition is speculative. Thus, Hollins is unable to demonstrate any
prejudice due to defense counsel’s failure to depose Williams. Hollins has not demonstrated that
his post-conviction counsel failed to raise a substantial claim of ineffective assistance of trial
counsel. Hollins is, therefore, unable to establish “cause” for his procedural default of Ground E.
c.

Ground J

In Ground J, Hollins alleges a Brady violation. Because Hollins is not alleging an
ineffective assistance of trial counsel claim, Martinez does not apply. This claim of trial error
should have been raised in Hollins’ direct appeal. The ineffective assistance of direct appeal
counsel cannot serve as cause to excuse the default, because such ineffectiveness was not raised
in the state post-conviction proceedings. See Murray, 477 U.S. at 488-89. Thus, Ground J is
procedurally defaulted.
d.

Ground K

In Ground K, Hollins alleges that trial counsel failed to file a discovery motion. In his
pro se post-conviction motion, Hollins claimed that, had counsel filed a discovery motion, he
would have all of the crime scene photos and would have been prepared for trial. (Respt’s Ex. F
at 28.)
The record reveals that both original counsel and Hollins on his own behalf filed requests
for discovery. (Respt’s Ex. B at 26-28, 52-53.) The state filed responses, which included all of
the police reports and notified counsel that he could make arrangements to view the photographs
or receive copies of those photographs on disk. Id. at 52-53.
Hollins’ claim that trial counsel did not file a discovery request and was therefore not
prepared for trial is not supported by the record. Hollins’ original attorney filed a discovery
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request and received discovery from the State. Trial counsel had obviously received and
reviewed this discovery, as he referred to the police reports and other evidence at trial. There is
no evidence that trial counsel was unprepared for trial. Trial counsel was not required to file an
additional, duplicative, discovery request.

Thus, Hollins has not demonstrated that his

post-conviction counsel failed to raise a substantial claim of ineffective assistance of trial counsel.
Hollins is, therefore, unable to establish “cause” for his procedural default of Ground E.
Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner
must make a showing of actual innocence based on “new reliable evidence that he was innocent
of the crime of which he was convicted.” Storey v. Roper, 603 F.3d 507, 524 (8th Cir. 2010).
Hollins has made no such showing of actual innocence. Accordingly, Grounds A, B, C, E, G, H,
J, and K remain procedurally defaulted.
V. Hollins’ Claims
The Court will discuss Hollins’ claims in turn. For the reasons discussed below, Hollins’
claims fail on their merits.
1.

Ground One
In Ground One, Hollins argues that the evidence was insufficient to support his conviction

of first degree assault because there was no evidence of intent. Hollins states that his alibi
witnesses placed him in Indiana at the time of the crime and the physical evidence contradicted
the State’s sole witness. Hollins argues that the jury’s question shows that the jury had difficulty
with this issue.
Hollins raised this claim in his direct appeal. The Missouri Court of Appeals held as
follows:
This Court reviews the sufficiency of the evidence in the light most
favorable to the finding of guilt. State v. Belton, 153 S.W.3d 307, 309 (Mo. banc
2005). This Court makes all reasonable inferences in support of that finding and
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disregards all evidence and inferences contrary to the finding. Id. Evidence is
sufficient to support guilt if a reasonable inference supports guilt even if other
“equally valid” inferences do not. State v. Freeman, 269 S.W.3d 422, 424-25 &
n. 4 (Mo. banc 2008). The credibility and weight to be given to testimony is a
matter for the fact-finder to determine. State v. Crawford, 68 S.W.3d 406, 408
(Mo. banc 2002). The fact-finder may believe all, some, or none of the testimony
of any witness. Id.
Defendant first argues that the jury question during deliberation shows that
there was insufficient evidence presented to the jury. During deliberation, the
jury asked:
Does the wording in Count I mean the defendant
was trying to kill Tamara Williams or does it mean
he was randomly firing with the intent to kill
someone? Also if we find him not guilty of Count
I, can we still find him guilty?
The court responded that the jury had to be guided by the instructions
given.
However, the question of sufficiency arises before the case is even put to
the jury. State v. Johnson, 316 S.W.3d 491, 498 (Mo. App. W.D. 2010). Rather,
sufficiency of evidence is a question of whether or not a case should have been
submitted to the jury. Id. Therefore, we do not find [Hollins]’s first sufficiency
argument persuasive.
[Hollins] next argues that because there was no evidence that a bullet came
near Williams, there was insufficient evidence that [Hollins] was aiming at
Williams. However, there was evidence that shots were fired near where
Williams was standing on the porch, and that Williams had heard [Hollins] make
statements about getting revenge. Further, Williams testified without objection,
that she had heard rumors that if [Hollins] didn’t hurt the person who had shot him,
he was going to hurt Williams. We find that this is sufficient evidence from
which the jury could have found that Williams was [Hollins]’s intended target.
Point denied.
(Respt’s Ex. E at 3-4.)
A federal court's review of a sufficiency of the evidence claim “is limited to determining
‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Gibbs v. Kemna, 192 F.3d 1173, 1175 (8th Cir. 1999) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (emphasis in original). “In applying this standard, ‘[t]he scope of our review…is
extremely limited…We must presume that the trier of fact resolved all conflicting inferences in
the record in favor of the state, and we must defer to that resolution.’” Sexton v. Kemna, 278
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F.3d 808, 814 (8th Cir. 2002) (quoting Miller v. Leapley, 34 F.3d 582, 585 (8th Cir. 1994)).
Section 565.050 of the Missouri Revised Statutes provides that “[a] person commits the
crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause
serious physical injury to another person.” “A person acts knowingly with respect to his conduct
when he is aware that his conduct is practically certain to cause that result.” State v. McKinney,
253 S.W.3d 110, 114 (Mo. Ct. App. 2008) (citing Mo.Rev.Stat. § 562.016.3(2)). This mental
state “may be based upon circumstantial evidence or inferred from surrounding facts.” Id.;
Mosby v. State, 236 S.W.3d 670, 677 (Mo. Ct. App. 2007). These surrounding facts may include
“conduct that would tend to cause death or serious physical injury.” Mosby, 236 S.W.3d at 677.
Williams testified that Hollins fired “seven to nine” shots in the direction of her house,
striking Phillips, who was standing at the side of Williams’ vehicle. Id. at 80. Williams stated
that the window was rolled down on the vehicle Hollins was driving, and she had no difficulty
seeing Hollins’ face. Id. at 79. Williams further testified that Hollins had expressed his desire
to get revenge immediately prior to the shooting. Id. at 75. The jury obviously found Hollins’
alibi witnesses not to be credible. The question from the jury and any evidence not supporting
the verdict are irrelevant when determining the sufficiency of the evidence. Under Jackson, after
viewing the evidence in the light most favorable to the state, any rational juror could have found
that Hollins knowingly attempted to cause serious physical injury to Williams. The
determination of the state court was not contrary to, nor did it involve an unreasonable application
of, clearly established federal law. Further, the state court’s decision was not unreasonable in
light of the evidence presented during trial. Thus, Ground One will be denied.
2.

Ground Two
In Ground Two, Hollins argues that trial counsel should have objected to the State’s

cross-examination of him about a prior arrest for an assault charge that did not result in a
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conviction.
During Hollins’ re-direct examination, Hollins testified that he had nothing violent in his
criminal history. (Respt’s Ex. A at 183.) On re-cross examination, the State asked, without
objection, if Hollins remembered being charged in St. Louis County with the felony of second
degree assault. Id. at 183. Hollins testified that he was charged with second degree assault, but
“it was dismissed. It was the wrong person.” Id. On further redirect, Hollins again stated that
the second degree assault charge was dismissed because the State had charged “the wrong guy.”
Id. at 184.
Hollins raised this claim in his amended post-conviction motion, and in his appeal from
the denial of post-conviction relief. The Missouri Court of Appeals held as follows:
We cannot conclude, based upon the record that counsel was ineffective
for failing to object to the prosecutor’s questioning of the prior second-degree
assault charge. Such an objection would have been non-meritorious because the
evidence of the prior charge would have been admissible to impeach Hollins’
statement that he did not have anything “violent” in his history. Moreover, even
if counsel could be considered ineffective for failing to object to the prosecutor’s
questioning, Hollins did not suffer prejudice from trial counsel’s alleged failure.
Counsel clarified the charge had been dismissed because Hollins was not the
individual who committed the crime, and therefore, Hollins cannot show a
reasonable probability that but for counsel’s alleged error, the outcome of the trial
would have been different. Thus, the motion court did not clearly err in denying
Hollins’ request for post-conviction relief without an evidentiary hearing.
(Respt’s Ex. I at 5.)
The decision of the state appellate court was neither contrary to, nor an unreasonable
application of, clearly established federal law. The court found that, under state evidentiary law,
evidence of Hollins’ prior assault charge was admissible. To the extent Hollins is claiming that
the state appellate court incorrectly applied state evidentiary law, the claim is not cognizable.
See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“[F]ederal habeas corpus relief does not lie for
errors of state law”).
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According to Eighth Circuit precedent, counsel is not ineffective under Strickland for
failing to raise a claim for which a petitioner could not obtain relief. See, e.g., Burton v.
Dormire, 295 F.3d 839, 846 (8th Cir. 2002) (counsel not ineffective for failing to raise recantation
where petitioner could not have obtained relief had counsel raised the issue); Grubbs v. Delo, 948
F.2d 1459, 1464 (8th Cir. 1991) (counsel not ineffective for failing to argue a meritless issue).
The state appellate court’s finding that counsel was not ineffective for making a meritless
objection is consistent with federal law. Thus, Ground Two will be denied.
3.

Ground Three
In Ground Three, Hollins argues that trial counsel was ineffective for failing to object

when Williams testified regarding rumors she had heard about Hollins on hearsay and
Confrontation Clause grounds.
The following colloquy occurred on cross-examination:
[Defense Counsel]: So there is no reason [Hollins] wanted to shoot you?
[Williams]: Not if I’m hearing rumors previous before the shooting.
[Defense Counsel]: Not if I’m hearing rumors previous to the shooting. What is
that the answer to? What question?
[Williams]: You just said why would he want to shoot at me if me and him didn’t
have any bad blood before the shooting.
[Defense Counsel]: And your answer was not if I’m hearing rumors prior to—
[Williams]: Because before then I heard rumors that if he didn’t get who he
thought shot him, he was going to get me.
[Defense Counsel]: So you didn’t actually hear that from Casey Hollins. That’s
something you heard out in the neighborhood?
[Williams]: Yes, sir.
[Defense Counsel]: Okay. And so then you would have wanted to tell that to the
police?
Page 16 of 25

(Respt’s Ex. A at 89-90.) Defense counsel returned to this alleged rumor later during
cross-examination, and again asked Williams whether she reported this rumor to the police. Id.
at 100. During closing argument, defense counsel stated that Williams falsely accused Hollins
of the shooting to protect her boyfriend. Id. at 210. Counsel argued that Williams’ boyfriend
had previously shot Hollins, and Williams sought to protect her boyfriend from retaliation by
Hollins. Id.
Hollins raised this claim in his post-conviction motion and in his appeal from the denial of
post-conviction relief. The Missouri Court of Appeals denied Hollins’ claim, holding as
follows:
The record in this case refutes Hollins’ claim that counsel was ineffective.
As previously noted, counsel’s actions are presumed to be reasonable and any
challenged action is presumed to be part of counsel’s sound trial strategy.
Barnett, 103 S.W.3d at 769. In some instances, counsel may choose not to object
to otherwise improper questions for strategic purposes. Id. Here, while
Williams’ testimony concerning “rumors” she heard may have been inadmissible,
the record reflects trial counsel’s decision not to object to the testimony was sound
trial strategy. Counsel used Williams’ testimony concerning the rumors to
impeach her credibility concerning whether she told the police officers about these
rumors. Trial counsel attempted to show the jury that Williams lied about the
identity of the shooter for her own motives, and allowing her to testify about
alleged “rumors” not corroborated or reported to the police at the time furthered
counsel’s strategy in this regard. Thus, the motion court did not clearly err in
denying Hollins’ claim for post-conviction relief in this regard without an
evidentiary hearing.
(Respt’s Ex. I at 5-6.)
The decision of the state appellate court is not contrary to or an unreasonable application
of clearly established federal law. Counsel could have objected to Williams’s testimony
regarding the neighborhood rumors on hearsay grounds, but his failure to do so does not
constitute ineffectiveness. In assessing counsel’s performance, courts “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
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assistance; that is, the defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The Missouri Court of Appeals found
that counsel’s decision not to object was strategic, in that counsel used Williams’ testimony to
impeach her credibility regarding her statements to the police, and to support his theory that
Williams had a motive to falsely accuse Hollins. This finding was reasonable in light of the
facts. Thus, Ground Three will be denied.
4.

Ground Four
In Ground Four, Hollins argues that trial counsel was ineffective for failing to object to

Williams’ testimony that additional persons had been shot. Hollins contends that this was
improper testimony of uncharged crimes.
As previously discussed, Williams testified, without objection, that two different
neighbors were grazed by bullets fired by Hollins. (Respt’s Ex. A at 81.) Williams testified that
she started to drive these individuals to the hospital, but she realized that one of her tires was flat
so she parked her car down the street from her residence. Id. Defense counsel questioned
Williams extensively on cross-examination regarding her failure to report to police that others
had been injured, whether the individuals had received medical treatment for their alleged
injuries, and why the individuals never reported their injuries to authorities. Id. at 83-86, 96-100,
109-13. The State did not call these two individuals as witnesses, nor did the State call Phillips.
In closing argument, defense counsel claimed that Williams’ testimony that bullets struck Phillips
and grazed two neighbors was fabricated. Id. at 209. Counsel argued that Phillips and the two
neighbors did not testify at trial because Hollins did not shoot them. Id.
Hollins raised this claim in his post-conviction motion and in his post-conviction appeal.
The Missouri Court of Appeals held:
Page 18 of 25

Generally, evidence of uncharged crimes is inadmissible to prove a
defendant’s propensity to commit the crimes with which he is charged. State v.
Murdock, 928 S.W.2d 374, 381 (Mo. App. W.D. 1996). However, such evidence
may be admitted when it is part of the circumstances or sequence of events
surrounding the offense charged. Id. In this instance, the evidence is admissible
to present a complete and coherent picture of the events. Id.
During Williams’ testimony at trial, she described the events leading up to
and following the shooting. According to Williams, Phillips was standing on the
side of her vehicle at the time of the shooting. Thereafter, she saw Phillips had
been shot in the foot. Williams further testified two of her neighbors were
“grazed” by bullets, and she attempted to drive them to the hospital. As she drove
down the street, Williams discovered her tires were flat and she parked the vehicle
further down the street. Williams’ testimony served to explain the circumstances
surrounding the shooting and the sequence of events, as well as why her vehicle
was initially in a different location than it was when a photograph of the scene was
taken. Thus, any objection to the testimony would likely have been overruled.
Counsel will not be considered ineffective for failing to make a nonmeritorious
objection. Worthington v. State, 166 S.W.3d 566, 581 (Mo. banc 2005).
Furthermore, counsel used Williams’ statements concerning the events
surrounding the shooting and the alleged uncharged crimes to impeach her
credibility. In closing argument, counsel pointed out the inconsistencies in
Williams’ testimony and the police reports, and specifically argued no evidence
supported her contention that anyone else was shot that day. Counsel’s strategic
decision not to object to Williams’ testimony did not constitute ineffective
assistance of counsel.
(Respt’s Ex. I at 6-7.)
As noted by the Missouri Court of Appeals, the general rule under Missouri law is that
evidence of uncharged crimes is inadmissible for the purpose of showing the propensity of the
defendant to commit the crime charged. Harris v. Bowersox, 184 F.3d 744, 752 (8th Cir.1999),
cert denied, 528 U.S. 1097 (2000). An exception to this general rule exists, however, “for
evidence of uncharged crimes that are part of the circumstances or the sequence of events
surrounding the offense charged in order to present a complete and coherent picture of the events
that transpired.” Id. (internal quotation marks and citation omitted). “This standard for
admissibility is the same as that used in the federal courts and is in accord with Supreme Court
precedent.” Osborne v. Purkett, 411 F.3d 911, 917 (8th Cir.2005), cert. denied, 547 U.S. 1022
(2006).
Page 19 of 25

The decision of the state appellate court was not contrary to or an unreasonable
application of clearly established federal law. The Missouri Court of Appeals determined that
Williams’ testimony explained the shooting and the sequence of events, including why her
vehicle had been moved. The testimony was not improper under federal law, as it concerned the
circumstances and sequence of events surrounding the shooting. Counsel was not ineffective for
failing to make a meritless objection. In addition, counsel used Williams’ testimony to impeach
her credibility, and to support his theory that her account was fabricated. Thus, Ground Four
will be denied.
5.

Ground Five

In Ground Five, Hollins argues that trial counsel was ineffective in failing to submit an
instruction on the lesser-included offense of assault in the second degree.
The record reveals that defense counsel did not offer any instructions. (Respt’s Ex. A at
195.) Defense counsel stated that his decision not to submit instructions was a “matter of trial
strategy.” Id.
Hollins raised this claim in the post-conviction proceedings. The Missouri Court of
Appeals held, in relevant part, as follows:
Section 565.060.1(2) RSMo (Cum. Supp. 2006) states, in relevant part,
that a person commits the crime of second-degree assault if he “[a]ttempts to cause
or knowingly causes physical injury to another person by means of a deadly
weapon or dangerous instrument.” According to Hollins, the jury could have
found Hollins did not attempt to kill or cause serious physical injury to the victims
by shooting them, and therefore an instruction on second-degree assault as
supported by the evidence. We disagree.
Initially, we note there is some question as to whether the evidence
supported Hollins’ acquittal of first-degree assault and conviction of
second-degree assault given the fact that he shot a gun in the victims’ direction
nine times. However, even assuming the evidence supported the submission of
the instruction on the lesser-included offense of second-degree assault, such an
instruction would have been inconsistent with Hollins’ defense at trial. Hollins
claimed he was not even in St. Louis at the time of the shooting. Instead Hollins
testified on his own behalf and presented testimony from his mother and a friend
Page 20 of 25

that he was in Indiana on the date in question. If trial counsel sought an
instruction on second-degree assault, claiming that Hollins did not attempt to kill
the victims or cause serious physical injury to them, but instead merely attempted
to cause or knowingly caused physical injury, it would have been wholly
inconsistent with Hollins’ alibi defense at trial. Counsel has no duty to request an
instruction that would undermine the defense presented at trial, and therefore the
failure to request such an instruction did not constitute ineffective assistance of
counsel.
(Respt’s Ex. I at 8-9.)

The decision of the Missouri Court of Appeals is not contrary to federal law or an
unreasonable application of the facts. The court’s conclusion that counsel was not ineffective
because an instruction on the lesser-included offense would have been inconsistent with Hollins’
alibi defense is fully supported by federal law. See Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir.
1997) (“[T]rial counsel’s decision not to request the lesser-included offense instruction was
reasonable trial strategy because the instructions would have been inconsistent with [defendant]’s
alibi defense”). Further, Hollins’ all-or-nothing strategy was effective as to the counts involving
Phillips. If the jury had received instructions on second degree assault, there is a possibility that
the jury would have found Hollins guilty on the counts involving Phillips. Thus, Hollins cannot
demonstrate a reasonable probability that the outcome of the trial would have been more
favorable to him had counsel requested the lesser-included offense instruction. Accordingly,
Ground Five will be denied.

Hollins’s Additional Claims Asserted in the Amended Petition
The Court has already found that Grounds A, B, C, E, G, H, J, and K are procedurally
defaulted. The remainder of the claims that were asserted in the Amended Petition are
duplicative of Hollins’ original five claims. The Court finds that all of Hollins’ claims fail on
their merits.
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Grounds A, B, C, G and H
In Grounds A, B, C, G, and H, Hollins argues that trial counsel was ineffective for
failing to call Officers Chambers, Roberts, and Burgoon. The Court has already determined in
the above procedural default analysis that Grounds A, B, C, G, and H lack merit because Hollins
is unable to demonstrate prejudice from counsel’s failure to call these witnesses. Accordingly,
Grounds A, B, C, G, and H will be denied.
Ground D
In Ground D, Hollins argues that trial counsel failed to request the instruction for the
lesser-included offense of second degree assault. This is the same claim Hollins raised in
Ground Five, which the Court found lacked merit. Thus, Ground D will be denied.
Ground E
In Ground E, Hollins claims that trial counsel failed to investigate and depose Tamara
Williams. The Court has already determined in the procedural default analysis that Ground E
lacks merit because Hollins is unable to demonstrate prejudice from counsel’s failure to depose
Williams. Accordingly, Ground E will be denied.
Ground F
In Ground F, Hollins argues that trial counsel failed to object to the hearsay testimony of
Williams. This is the same claim raised in Ground Three. Thus, Ground F will be denied.
Ground I
In Ground I, Hollins argues that trial counsel failed to object to the prosecutor’s questions
regarding an uncharged assault. This is the same claim raised in Ground Two. Accordingly,
Ground I will be denied.

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Ground J
In Ground J, Hollins alleges a Brady violation. Specifically, Hollins argued in his pro se
post-conviction motion that the prosecuting attorney failed to disclose to the defense that
Williams was going to testify that two additional people were shot.
The Court found that Hollins procedurally defaulted this claim by failing to raise it in his
direct appeal. This claim also fails on its merits.
During the cross-examination of Williams, defense counsel indicated that the State did not
disclose that Williams alleged there were additional victims. (Respt’s Ex. A at 98, 120.)
Williams alleged that she did report to unnamed officers that two additional individuals were
grazed with bullets. Id. at 83-86, 98-100, 108-09. Williams testified that these individuals,
“Man-Man” and “Bunky” did not want to get involved in the case. (Tr. 99.)
In Brady, the Supreme Court held that due process requires the government to disclose
material, exculpatory evidence to the defendant. Brady v. Maryland, 373 U .S. 83 (1963).
“There are three components of a true Brady violation: The evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Hollins is unable to establish a Brady violation. There is no evidence that the prosecutor
was aware of this evidence. Even assuming that the prosecution knew about the additional
victims due to Williams’ testimony that she had disclosed this information to police, Hollins
cannot meet the prejudice element of a Brady violation. Williams’ claim that there were two
additional victims could have been used as impeachment evidence. In fact, upon discovering the
information, defense counsel did use the testimony to impeach Williams. Counsel questioned
Williams extensively on cross-examination regarding her failure to report the additional victims
Page 23 of 25

to officers. During closing argument, counsel again noted that Williams had never reported the
additional victims to law enforcement. Id. at 209. Counsel also argued that no charges were
filed against Hollins with respect to those individuals, and that the individuals did not testify that
Hollins shot them. Id.

There was no prejudice to Hollins as a review of the record

demonstrates that defense counsel was able to use the information to impeach Williams during
trial.
Hollins also argues that the disclosure of Williams’ testimony could have been
exculpatory, in that the additional victims could have disclosed the “true perpetrator.” (Respt’s
Ex. F at 27.) Hollins has not presented any affidavits or any other evidence to support his claim.
There is no evidence that these alleged victims were ever located. Hollins’ claim is entirely
speculative. It is just as likely that the additional victims would have implicated Hollins, which
would have resulted in additional charges. Thus, Hollins is unable to demonstrate prejudice due
to the State’s failure to disclose this information prior to trial. Ground J will be denied.
Ground K
In Ground K, Hollins argues that trial counsel failed to file a discovery request. The
Court has already determined in the procedural default analysis that Ground K lacks merit
because Hollins’ original attorney filed a discovery request and the State provided discovery to
the defense. Accordingly, Ground K will be denied.
VI.

Certificate of Appealability

To grant a certificate of appealability, a federal habeas court must find a substantial
showing of the denial of a federal constitutional right. See 28 U.S.C. ' 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the
issues are debatable among reasonable jurists, a court could resolve the issues differently, or the
Page 24 of 25

issues deserve further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). In
this case, Hollins has failed to make a substantial showing of the denial of a constitutional right.
The undersigned is not persuaded that the issues raised in his Petition are debatable among
reasonable jurists, that a court could resolve the issues differently, or that the issues deserve
further proceedings.
Accordingly, no Certificate of Appealability shall be issued.

ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. ' 2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Petitioner be
denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.

_____________________________________
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 29th day of February, 2016.

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