Blakemore v. Wallace

Filing 19

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the petition of David Lee Blakemore for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. Signed by District Judge Audrey G. Fleissig on 3/30/2016. (KCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID LEE BLAKEMORE,
Petitioner,
v.
IAN WALLACE,
Respondent.

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Case No. 4:13CV00125 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
David Lee Blakemore for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. The
State charged Petitioner with first-degree robbery in connection with one incident (Count
I); attempted first-degree robbery in connection with a second incident (Count II); and
forcible rape, first-degree robbery, kidnapping, and third-degree assault in connection
with a third incident (Counts III through VI, respectively). As to all counts, Petitioner
was charged with acting with others or another. Following a trial on all counts, the jury
found Petitioner guilty of robbery in connection with the first incident, and forcible rape
and kidnapping in connection with the third incident, but not guilty on the other three
charges. Petitioner was sentenced as a prior and persistent offender to ten years’
imprisonment for the robbery, twenty years for the rape, and five years for the
kidnapping, with the sentences for the robbery and rape to run concurrently, and the
sentence for the kidnapping to run consecutively to the sentence for the rape (for a total
of 25 years).

For federal habeas relief, Petitioner argues that his constitutional rights were
violated by: (1) the trial court’s failure to sever the counts arising out of the three
different incidents; (2) the trial court’s refusal to submit a requested jury instruction on
“mere presence”; (3) defense counsel’s failure effectively to impeach the rape victim’s
credibility; (4) defense counsel’s failure to call Petitioner as a witness; and (5) the trial
court’s failure to hold an evidentiary hearing on Petitioner’s postconviction motion. He
requests an evidentiary hearing in this Court on his claims. For the reasons set forth
below, habeas relief, and the request for a hearing, will be denied.
BACKGROUND
Trial
Prior to trial, Petitioner filed a motion for a declaration that the joinder of the
offenses was improper, and in the alternative, for severance of the offenses for trial.
(Resp. Ex. C at 19-22.) The trial court denied the motion. In a motion to reconsider,
Petitioner particularly sought to sever the first-degree robbery charge from the forcible
rape and kidnapping charges. This motion was also denied.
The evidence at trial showed the following. At approximately 11:00 p.m., on
January 7, 2006, as he was driving to a club, James Harris noticed a black SUV behind
him flashing its lights like a police vehicle. Harris pulled over and rolled down his
windows. The SUV pulled up on the driver’s side of Harris’s vehicle. Four individuals
(three men and one woman) got out of the SUV, including Petitioner and Eddie Head.
Petitioner got into Harris’s passenger seat and ordered Harris to restart his car,
threatening to shoot Harris if he did not do so. Harris started the vehicle and then opened
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the door and jumped out. As he was running away, he looked back and saw Petitioner
move into the driver’s seat of Harris’s vehicle and drive away.
On January 10, 2006, at approximately 1:10 a.m., two men matching the
descriptions of Petitioner and Head followed Adam Long as he was driving home. The
two men arrived at Long’s home, a few blocks from the incident on January 7, 2006, in a
cream-colored SUV and attempted to get into Long’s vehicle. The two men entered
Long’s garage, opened the door to Long’s vehicle and threatened him with a wooden
board. After Long fought the men off, the men left. Long described one of the men as
wearing a red basketball jersey.
About an hour later, at approximately 2:15 a.m., Petitioner and Head approached a
woman, J.W., as she was waiting in a check-out line at a convenience store about one
block away from Long’s residence. Petitioner and Head followed J.W. as she left the
store. As J.W. neared her apartment, Head grabbed her, poking something in her back,
and dragged her into an alley behind her apartment, giving instructions to Petitioner as he
did so. Petitioner complied with Head’s instructions and also served as a lookout as Head
dragged J.W. Once Head had J.W. backed up against a wall in the alley, first Petitioner
(at Head’s direction) and then Head removed J.W.’s clothes. Head slammed J.W. into
the ground as he removed her clothes, and had sexual intercourse with her. During the
rape, Petitioner told Head that somebody was coming. Petitioner and Head fled, and J.W.
ran to the convenience store without her pants and screamed to the clerk that she had just
been raped. The clerk noticed that J.W. was bleeding and called the police. Video
cameras inside the convenience store captured the initial interaction among Petitioner,
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Head, and J.W., and also J.W. running back to the store several minutes later, naked from
the waist down. The video footage showed Petitioner wearing a red basketball jersey.
J.W. identified Petitioner and Head in separate photo line-ups, and identified Petitioner at
trial as the man who assisted in the kidnapping and rape. In another photo line-up, Harris
identified Head as the driver of the SUV and Petitioner as the person who entered the
passenger seat of Harris’s vehicle. Detectives interviewed Petitioner about these
offenses, and he confessed to stealing Harris’s vehicle.
Defense counsel impeached J.W. with inconsistencies in her earlier statements
about Petitioner’s involvement in the rape. Petitioner did not testify or otherwise present
evidence. Before the case was submitted to the jury, the trial court asked Petitioner
whether he understood his right to testify and whether he desired to testify. Petitioner,
who had multiple prior convictions, acknowledged knowing that he had the right to
testify and told the court that he had decided that he did not want to testify. (Resp. Ex. B
at 369-70.)
The verdict directors on all six counts required the jury to find that Petitioner was
not merely present, but actually acted together with or aided or encouraged Head for each
of the offenses. The trial court instructed the jury to give separate consideration to each
count and to reach a separate verdict for each count. Petitioner requested the form
instruction on the issue of “mere presence” that instructs the jury that mere presence is
not sufficient evidence of being a participant, but can be considered as evidence of
participation. The trial court refused to give this instruction.

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During a hearing on Petitioner’s motion for new trial, defense counsel argued that
Petitioner’s decision not to testify was influenced by the failure to grant severance,
because if he testified on the first-degree robbery charge he would also have had to testify
on the rape charge. He also argued that the failure to sever resulted in the jury hearing
evidence that suggested that he police “were looking for individuals that were involved in
all sorts of criminal activity in the area.” (Resp. Ex. B at 467-68.) The trial court denied
the motion for a new trial, and sentenced Petitioner as set forth above. At sentencing,
Petitioner indicated that he did not disagree with the decisions that trial counsel made at
trial.
Direct Appeal
On direct appeal, Petitioner challenged (1) the denial of his motion for improper
joinder and for failing to sever the robbery charge pertaining to Harris from the rape and
kidnapping charges pertaining to J.W. and (2) the failure to give a requested jury
instruction on mere presence. The Missouri Court of Appeals analyzed joinder and
severance separately. With regard to joinder, the court found sufficient similarity based
on the closeness in time and location, the evidence showing that Head and Petitioner
acted together in all three incidents, and the similar tactics used in all charged offenses.
With regard to severance, the state appellate court also found that the state’s evidence
showed both Harris and J.W. identified the Head and Petitioner as perpetrators, and that
the evidence for the incidents was sufficiently simple and distinct to preclude any claim
of actual prejudice. Furthermore, the appellate court noted that the evidence on each of
the three counts on which the jury found Petitioner guilty was overwhelming. Finally,
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the fact that the jury acquitted Petitioner on the middle incident with relatively weak
evidence showed that the jury kept the offenses separate.
On the instructional claim, the Missouri Court of Appeals found that the notes on
use for the instruction on mere presence gave the trial court discretion on whether or not
to give this instruction. The appellate court held that because there was no evidence
suggesting that Petitioner was a mere innocent bystander at any of the charged offenses,
he was not entitled to this instruction.
State Postconviction Proceedings
In his motion for postconviction relief Petitioner claimed that defense counsel was
ineffective in failing effectively to impeach the rape victim’s credibility as to whether she
was actually raped or whether a rape was merely attempted, and in failing to call
Petitioner as a witness. The motion court denied Petitioner’s request for an evidentiary
hearing and denied his postconviction motion. The motion court found that defense
counsel competently cross-examined J.W. The motion court also noted that the penalty
for attempted rape was the same as rape; therefore, the suggestion that showing that it
was only an attempted rape would have undermined J.W.’s credibility about Petitioner’s
involvement in aiding Head was speculative. (Resp. Ex. G at 39.)
The motion court found that Petitioner’s second claim of ineffective assistance of
counsel was refuted by the record as Petitioner had acknowledged in open court that he
had made the decision that he did not want to testify and that it was his decision alone.
The Missouri Court of Appeals affirmed the denial of postconviction relief. The
Missouri Court of Appeals noted that defense counsel did impeach J.W. with
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inconsistencies in her earlier statements about Petitioner’s involvement in the rape. The
Missouri Court of Appeals concluded that the strategy of showing that Petitioner had
minimal involvement in the rape, as opposed to showing that Head only attempted to rape
J.W., was a reasonable strategy. (Resp. Ex. J at 4-5.)
The Missouri Court of Appeals agreed with the trial court that the record showed
that Petitioner made the decision not to testify. To the extent that Petitioner’s claim could
be viewed as challenging counsel’s advice on this issue, the appellate court found that
any advice from counsel that Petitioner should not testify was reasonable in light of his
criminal history. Id. at 5-6.
Federal Habeas Petition
As noted above, in his federal habeas petition, Petitioner asserts that his
constitutional rights were violated by (1) the trial court’s failure to sever the counts
arising out of the three different incidents; (2) the trial court’s refusal to submit the
requested jury instruction on mere presence; (3) defense counsel’s failure effectively to
impeach J.W.’s credibility; (4) defense counsel’s failure to call Petitioner as a witness;
and (5) the trial court’s failure to hold an evidentiary hearing on Petitioner’s
postconviction motion. Petitioner requests an evidentiary hearing in this Court on his
claims.
DISCUSSION
Standard of Review
Where a claim has been adjudicated on the merits in state court, the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) provides that application for a writ of
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habeas corpus cannot be granted unless the state court’s adjudication:
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 proceedings.
28 U.S.C. § 2254(d).
“[C]learly established Federal law” for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions. And an ‘unreasonable application of’ those holdings must be
objectively unreasonable, not merely wrong; even clear error will not
suffice. To satisfy this high bar, a habeas petitioner is required to show that
the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (citations omitted).
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show
ineffective assistance of counsel, a habeas petitioner must show both that “[his] counsel’s
performance was deficient” and that “the deficient performance prejudiced [his]
defense.” Id. at 687; see also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th
Cir. 2014). To show deficient performance, the petitioner must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and
Petitioner bears a heavy burden in overcoming “a strong presumption that counsel's
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conduct falls within the wide range of reasonable professional assistance” and “might be
considered sound trial strategy.” Id. at 689 (citations omitted). To show prejudice, the
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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
When, as here, an ineffective assistance claim has been addressed by the state
court, this Court must bear in mind that “[t]aken together, AEDPA and Strickland
establish a ‘doubly deferential standard’ of review.” See Williams v. Roper, 695 F.3d
825, 831 (8th Cir. 2012) (citation omitted). In the context of a habeas claim, it is not
sufficient for a petitioner to “show that he would have satisfied Strickland’s test if his
claim were being analyzed in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99
(2002). “Rather, he must show that the [state court] applied Strickland to the facts of his
case in an objectively unreasonable manner.” Id. at 699.
Failure to Sever Charges
To obtain federal habeas relief for a state court’s failure to sever different charges,
a petitioner must show that the failure to sever rendered the trial “fundamentally unfair.”
Wharton–El v. Nix, 38 F.3d 372, 374 (8th Cir.1994) (citation omitted).
Upon review of the record, the Court finds no basis for a determination that the
joinder of the offenses rendered the trial fundamentally unfair. The evidence with respect
to each incident was relatively distinct, and the trial court instructed the jury to give
separate consideration to the evidence of each offense and to reach separate verdicts with
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respect to each count. The fact that the jury reached different conclusions about
Petitioner’s culpability with respect to the incidents, acquitting Petitioner on the middle
incident with relatively weak evidence, indicates that the jury heeded the trial court’s
instructions and separately considered each offense.
Moreover, Petitioner has not made a sufficient showing of prejudice as a result of
the state court’s failure to sever the offenses. “A claim of prejudice based on the
possibility that a defendant’s choices for acquittal may be better in separate trials is an
insufficient justification for severance.” Head v. Bowersox, No. 4:11CV741 CDP, 2012
WL 482259, at *5 (E.D. Mo. Feb. 14, 2012). “Likewise, a bald assertion that defendant
may want to testify on one count but not another is insufficient; rather, he or she must
make a persuasive and detailed showing regarding the testimony he would give on one
count he wishes severed and the reason he cannot testify on the other counts.” Id.
Petitioner has not made such a detailed showing, and his vague assertions of prejudice are
insufficient. Therefore, Petitioner’s first ground for federal habeas relief is without merit.
Failure to Instruct the Jury on Mere Presence
Habeas relief may be granted for erroneous jury instructions only when the error
constituted a fundamental defect that resulted “in a complete miscarriage of justice, [or]
an omission inconsistent with rudimentary demands of a fair trial.” Crump v. Caspari,
116 F.3d 326, 327 (8th Cir.1997); see also Johnson v. Russel, No. 4:10 CV 1613 RWS,
2013 WL 4805864, at *1 (E.D. Mo. Sept. 9, 2013).
Here, Petitioner has not established an error that deprived him of a fair trial.
Petitioner does not assert that the instructions as a whole failed to give a full and correct
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statement of the applicable law, and although Petitioner asserts that the trial court should
have included an optional form instruction on mere presence, the verdict directors on all
counts accomplished this purpose by requiring the jury to find that Petitioner was not
merely present but actually acted together with or aided or encouraged Head for each of
the offenses. Therefore, the refusal to give Petitioner’s requested instruction did not
violate Petitioner’s constitutional rights, and this second ground for habeas relief will also
be denied. See Wedemann v. Solem, 826 F.2d 766, 768 (8th Cir. 1987) (finding that
where “the instructions as a whole required the jury to find each element of the offense
. . . beyond a reasonable doubt,” a refusal to give a requested jury instruction on mere
presence at the scene did not violate the habeas petitioner’s due process rights).
Ineffective Assistance of Counsel Claims
The conclusions of the Missouri Court of Appeals that Petitioner did not receive
ineffective assistance of counsel based on the defense counsel’s cross-examination of the
rape victim and failure to call Petitioner as a witness were not contrary to or an
unreasonable application of federal law.
As noted by the state courts, defense counsel’s cross-examination of J.W. focused
on showing that Petitioner had minimal involvement in the rape, as opposed to showing
that Head only attempted to rape the victim. The state courts reasonably concluded that
this decision was a matter of sound trial strategy. With respect to Petitioner’s suggestion
that showing it was only an attempted rape might have undermined J.W.’s credibility
about Petitioner’s involvement in and culpability for the rape, the state courts reasonably

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concluded that because the penalty for attempted rape was the same as for rape, Mo. Rev.
Stat. § 566.030, Petitioner’s assertion was too speculative to demonstrate prejudice.
Likewise, the record supports the state courts’ finding that the trial court
questioned Petitioner regarding his decision not to testify, and that Petitioner reported
that it was his decision alone not to testify. See Krimmel v. Hopkins, 44 F.3d 704, 710
(8th Cir. 1995) (finding ineffective assistance of counsel claim based on advice to testify
without merit where the record “demonstrate[d] that [the petitioner] was advised of the
advantages and disadvantages of testifying and that the decision to testify was his, not his
counsel’s”). Further, in light of Petitioner’s multiple prior convictions, any advice by
counsel not to testify would have fallen within the “wide range of reasonable professional
assistance” permitted by Strickland. See Russell v. Norman, No. 4:11CV2016 TIA, 2015
WL 1725976, at *15 (E.D. Mo. Apr. 15, 2015) (finding that counsel’s advice not to
testify “not only fell within the wide range of reasonable professional assistance but was
competent and sound” where “Petitioner had prior convictions for domestic assault and
robbery[, and] [i]f he had testified, these convictions would, in all probability, have been
revealed”); Speer v. Wallace, No. 4:12CV2220 ACL, 2016 WL 759323, at *9 (E.D. Mo.
Feb. 26, 2016) (“[C]ounsel’s advice not to testify was reasonable trial strategy in light of
Speer’s extensive criminal history.”). Accordingly, Petitioner’s third and fourth grounds
for habeas relief are without merit.
State Court’s Failure to Hold a Postconviction Evidentiary Hearing
The state court’s denial of an evidentiary hearing is not an independent claim, but,
instead, an infirmity in the state post-conviction proceeding. “[A]n infirmity in a state
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post-conviction proceeding does not raise a constitutional issue cognizable in a federal
habeas petition.” Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997). Therefore, the
Court will deny this final ground for habeas relief.
With regard to Petitioner’s request for an evidentiary hearing in this Court, the
AEDPA sharply limits a federal district court’s power to conduct an evidentiary hearing.
Perry v. Kemna, 356 F.3d 880, 889 (8th Cir. 2004). “Evidentiary hearings in habeas
proceedings are barred unless the petitioner was unable to develop his claim in state court
despite diligent effort.” Wright v. Bowersox, 720 F.3d 979, 987 (8th Cir. 2013).
Petitioner must also show that his claim relies on either “(i) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or (ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A). Petitioner
has not met these requirements. Moreover, Petitioner has not indicated what facts he
would intend to establish at such a hearing. Therefore, the Court denies Petitioner’s
request for an evidentiary hearing.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court’s
assessment of the procedural or substantive issues presented in this case debatable or
wrong, for purposes of issuing a Certificate of Appealability under 28 U.S.C.
§ 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (standard for issuing a
Certificate of Appealability) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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Accordingly,
IT IS HEREBY ORDERED that the petition of David Lee Blakemore for a writ
of habeas corpus is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be
issued in this case.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of March 2016.

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