Boyd v. Steele

Filing 20

MEMORANDUM AND ORDER (See Full Order). IT IS HEREBY ORDERED that the petition of Darnell C. Boyd for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. IT IS FURTHER ORDERED that no certificate of appealability shall issue in t his case inasmuch as petitioner has failed to make a substantial showing that he has been denied a constitutional right. A separate Judgment is entered this same date in accordance with this Memorandum and Order. Signed by District Judge Catherine D. Perry on 3/8/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARNELL C. BOYD,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
TROY STEELE,
Respondent.

No. 4:13CV257 CDP

MEMORANDUM AND ORDER
Missouri state prisoner Darnell C. Boyd is currently incarcerated at the
Potosi Correctional Center in Mineral Point, Missouri, serving sentences for his
conviction of robbery first degree and attempted robbery first degree. He now
petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
arguing that his conviction was obtained in violation of his constitutional rights.
Because none of Boyd’s claims merit granting habeas relief, I will deny his
petition for writ of habeas corpus.
Procedural History
On July 9, 2008, a jury in the Circuit Court of St. Louis City, Missouri,
found Boyd guilty of one count of robbery first degree, one count of attempted
robbery first degree, and two counts of armed criminal action. Boyd was
sentenced as a persistent offender to concurrent terms of twenty years’

imprisonment for the robbery conviction, fifteen years’ imprisonment for the
attempted robbery conviction, and five years’ imprisonment for each armed
criminal action conviction.1 On direct appeal, the Missouri Court of Appeals
affirmed Boyd’s conviction and sentence. State v. Boyd, 305 S.W.3d 495 (Mo. Ct.
App. 2010). Boyd thereafter filed a motion for post-conviction relief pursuant
Missouri Supreme Court Rule 29.15, which was denied after an evidentiary
hearing. (Resp. Exh. F.) On November 13, 2012, the Missouri Court of Appeals
affirmed the trial court’s denial of Boyd’s Rule 29.15 motion. Boyd v. State, 383
S.W.3d 479 (Mo. Ct. App. 2012).
Factual Background
On direct appeal, the Missouri Court of Appeals summarized the evidence
adduced at trial as follows:
In the evening of February 27, 2007, Antonio Cox and his
girlfriend, Carlatta Busey, were walking down a street toward Busey’s
house. A car occupied by two men passed by Cox and Busey and
stopped down the street. The driver and passenger got out of the car
and eventually approached Cox and Busey. The driver had a gun in
his hand and told Cox, “Get your ass in the alley before I kill you.”
The passenger put a gun in Cox’s back and went through Cox’s
pockets. The passenger took Cox’s coat, cell phone and $150. The
driver pointed a gun at Busey and “felt” Busey’s pocket but did not
find anything. The driver and passenger then went to the car and
drove away.
The day after the robbery two detectives were in an unmarked
1

Boyd has completed service of the two five-year terms of imprisonment.
-2-

vehicle and saw a vehicle that matched the description of the car
involved in the robbery. When the detectives approached the car, it
“sped off” and the detectives lost sight of the car. The detectives put
out a broadcast that described the car and the license plate number.
Several minutes later, another police officer saw the car parked on a
street. As the officer and his partner began a surveillance, they saw a
man who fit the description of one of the robbers walk by the car and
enter a nearby house. The man was later identified as defendant’s
nephew and he told police that defendant was his “guardian.” One of
the officers knew that defendant matched the description of one of the
robbers. A detective subsequently compiled a photo-array with
defendant’s picture. Cox and Busey identified defendant from the
photo-array and at trial as one of the men who robbed them.
(Resp. Exh. E, Memo. at 2.)2
Grounds for Relief
Boyd filed the instant petition for writ of habeas corpus on February 11,
2013, in which he raises three grounds for relief:
1) That he was denied due process when the prosecutor engaged in
improper personalization during closing argument;
2) That he was denied the effective assistance of trial counsel when counsel
failed to call a witness to testify on his behalf at trial; and
3) That he was denied the effective assistance of trial counsel when counsel
failed to call him to testify on his own behalf at trial.
Boyd raised these claims in State court, and the Missouri Court of Appeals denied
them on their merits.
Legal Standard

2

Because Boyd does not rebut these factual findings with clear and convincing evidence, I
presume them to be correct. 28 U.S.C. § 2254(e)(1).
-3-

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
[a]n 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). See also Williams v. Taylor, 529 U.S. 362, 379 (2000). A
State court’s decision is “contrary to” clearly established Federal law when it is
opposite to the Supreme Court’s conclusion on a question of law or different than
the Court’s conclusion on a set of materially indistinguishable facts. Williams, 529
U.S. at 412-13; Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001). A State
court’s decision is an “unreasonable application” of Supreme Court precedent if it
“identifies the correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Williams, 529 U.S. at 413. Merely erroneous or incorrect application of
clearly established Federal law does not suffice to support a grant of habeas relief.
Instead, the State court’s application of such law must be objectively unreasonable.
Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). Finally, when
reviewing whether a State court decision involves an “unreasonable determination
-4-

of the facts” in light of the evidence presented in the State court proceedings, State
court findings of basic, primary, or historical facts are presumed correct unless the
petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Rice v. Collins, 546 U.S. 333, 338-39 (2006); Collier v. Norris, 485
F.3d 415, 423 (8th Cir. 2007). Erroneous findings of fact do not ipso facto ensure
the grant of habeas relief. Instead, the determination of such facts must be
unreasonable in light of the evidence of record. Collier, 485 F.3d at 423; Weaver
v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001).
The federal court is “bound by the AEDPA to exercise only limited and
deferential review of underlying State court decisions.” Lomholt v. Iowa, 327 F.3d
748, 751 (8th Cir. 2003). As such, to obtain federal habeas relief, Boyd must show
that the challenged State court ruling “rested on ‘an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.’” Metrish v. Lancaster, 133 S. Ct. 1781, 1786-87 (2013) (quoting
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)). This standard is difficult to
meet. Id. at 1786.
Discussion
A.

Ground 1 – Prosecutorial Misconduct
In his first ground for relief, Boyd claims that he was denied due process of

law when the trial court permitted the prosecutor to engage in improper
-5-

personalization during her closing argument by suggesting to the jury that an
acquittal would affect all city residents’ ability to be free from harm and walk
freely in the city. Boyd raised this claim on direct appeal. Upon review of the
merits of the claim, the Missouri Court of Appeals denied relief. (Resp. Exh. E.)
In determining whether the prosecutor’s closing argument violated Boyd’s
constitutional rights, the pertinent inquiry is “whether the prosecutors’ comments
‘so infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “There must be a
reasonable probability that the error affected the jury’s verdict and that without the
error, the jury’s verdict would have been different.” Rousan v. Roper, 436 F.3d
951, 960 (8th Cir. 2006) (internal quotation marks and citation omitted). I may
grant Boyd habeas relief on this claim only if “the prosecutor’s closing argument
was so inflammatory and so outrageous that any reasonable trial judge would have
sua sponte declared a mistrial.” James v. Bowersox, 187 F.3d 866, 869 (8th Cir.
1999). With “the strict due process standard of constitutional review, the
deferential review mandated by the AEDPA, and [this Court’s] less reliable
vantage point for gauging the impact of closing argument on the overall fairness of
a trial,” my review of whether the prosecutor’s closing argument violated Boyd’s
right to due process is “exceptionally limited.” Id.; see also Sublett v. Dormire,
-6-

217 F.3d 598, 600 (8th Cir. 2000).
In the instant ground for relief, Boyd challenges that portion of the
prosecutor’s closing argument wherein she stated, “But this crime of robbery does
not just affect two people. This crime affects every person who lives on that block.
Every person in the city who wants to walk free from harm.” (Resp. Exh. E,
Memo. at 3.) The trial court overruled defense counsel’s objection to the improper
personalization of this argument, whereupon the prosecutor continued, “People in
the city have that freedom and should be able to do that.” (Id.) Boyd argues that
this argument improperly told the jury that an acquittal would affect their safety
and the safety of their family and friends. He further contends that, given that the
evidence of guilt was not overwhelming, this improper argument had a decisive
effect on the verdict.
Improper personalization occurs when the prosecutor asks the jurors during
closing argument to place themselves in the place of a party or victim, or suggests
personal danger to the jurors or their families if the defendant were to be acquitted.
Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000); West v. State, 244 S.W.3d 198,
201 (Mo. Ct. App. 2008). A prosecutor’s comments on the prevalence of crime in
the community or on evils that may befall society if the jury fails its duty do not
constitute improper personalization. State v. Burton, 219 S.W.3d 778, 781 (Mo.
Ct. App. 2007). Likewise, a prosecutor’s argument that the public’s protection
-7-

rests with the jury is not improper personalization. Id. As noted by the Missouri
Court of Appeals here, the part of the argument challenged by Boyd was
permissible commentary on the negative effects of crime on persons in the city
rather than alluding to personal danger that would befall the individual jurors, their
families, or their friends if they were to acquit Boyd. (Resp. Exh. E, Memo. at 4.)
As such, no improper personalization occurred. Although Boyd argues that the
jurors, their families, and their friends are “persons in the city” and thus were
included the prosecutor’s suggested group of people subject to potential harm, a
more direct reference to danger befalling a juror or another identifiable person is
required for improper personalization. Hall, 16 S.W.3d at 585-86. Referring to
danger posed to society in general is too indirect to give rise to improper
personalization. Id.
Even if the challenged comments were improper, they were not so
outrageous to render Boyd’s trial fundamentally unfair. They did not
mischaracterize the evidence or implicate any other of his specific rights. Further,
when coupled with the trial court’s instruction to the jury that closing arguments
are not evidence (see Resp. Exh. B at 35) and the jury’s “common sense ability to
put aside a particular type of overzealous advocacy,” James, 187 F.3d at 870, it
cannot be said that these statements so infected the trial with unfairness that a
reasonable probability exists that the verdict might have been different had the
-8-

alleged error not occurred. See also Sublett, 217 F.3d at 601. Accordingly, under
Darden, the Missouri Court of Appeals’ decision was not contrary to nor an
unreasonable application of clearly established federal law.
The claim raised in Ground 1 of the instant petition will therefore be denied.
B.

Grounds 2 and 3 – Ineffective Assistance of Trial Counsel
In his second ground for relief, Boyd contends that trial counsel was

ineffective for failing to subpoena and call Shawn Johnson, his barber, to testify at
trial. In his third ground, Boyd contends that trial counsel was ineffective for
failing to allow him to testify at trial on his own behalf. Boyd raised these claims
in his Rule 29.15 motion and on appeal of the denial of the motion. Upon
consideration of the merits of the claims, the Missouri Court of Appeals denied
Boyd relief. (Resp. Exh. J.)
At the time Boyd’s conviction became final, the law was clearly established
that the Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To
prevail on a claim of ineffective assistance of counsel, Boyd must show that his
counsel’s performance was deficient and that the deficient performance prejudiced
his defense. Id. at 687. In evaluating counsel’s performance, the basic inquiry is
“whether counsel’s assistance was reasonable considering all the circumstances.”
Id. at 688. Boyd bears a heavy burden in overcoming “a strong presumption that
-9-

counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. Indeed, a strong presumption exists that counsel’s conduct
“might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal
quotation marks and citation omitted). Decisions relating to trial strategy are
“virtually unchallengeable.” Id. at 690. To establish prejudice, Boyd “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.
Because I review Boyd’s claims of ineffective assistance of counsel in the
habeas context, I must be careful not to apply the Strickland analysis as if the
claims were being addressed in the first instance. In order to succeed on these
habeas claims under § 2254(d)(1), therefore, it is not enough for Boyd to convince
me that, in my independent judgment, the State court applied Strickland
incorrectly. “‘Rather, he must show that the [Missouri] Court of Appeals applied
Strickland to the facts of his case in an objectively unreasonable manner.’” Hoon
v. Iowa, 313 F.3d 1058, 1063 (8th Cir. 2002) (quoting Bell v. Cone, 535 U.S. 685,
698-99 (2002)) (internal citation omitted in Hoon). For the following reasons,
Boyd has failed to do so here.
Boyd’s convictions were based largely on the eyewitness and identification
testimony of the victims. Specifically, the victims testified that they were robbed
- 10 -

by two males wearing hooded sweatshirts and that the robber in the gray sweatshirt
had a goatee – described by one of the victims as “longer chin hair” – and dreads,
braids, or cornrows. In support of Boyd’s defense of misidentification, trial
counsel called Boyd’s sister, Angela Young, who testified to photographs taken of
Boyd in December 2006 – two months before the robbery – which depicted Boyd
as having a “low haircut” and a beard. Young testified that Boyd’s appearance on
February 27, 2007 – the day of the robbery – was similar to his appearance in the
photographs. Young also testified that Boyd did not have braids or a long goatee
in February 2007. During cross examination, Young testified that she had
previously been convicted of stealing and misdemeanor assault.
1.

Failure to Call Shawn Johnson

During his investigation, counsel interviewed Boyd’s barber, Shawn
Johnson, who told counsel that Boyd did not have dreadlocks or a long goatee in
February 2007. Counsel endorsed Johnson as a witness but did not subpoena him
to testify at trial. Within days of trial, Johnson told counsel that he was in Texas
for training and was unsure whether he could return for trial. Counsel did not seek
a continuance. At some point during the trial after the defense rested, counsel was
told that Johnson was available to testify. Counsel determined not to reopen his
case because evidence of Boyd’s physical appearance had already been adduced
through the December 2006 photos and Ms. Young’s testimony.
- 11 -

In relation to Boyd’s motion for post-conviction relief, Johnson provided
deposition testimony that he was Boyd’s barber from 2006 to 2008 and that the last
time he saw Boyd before February 2007 was in November or December 2006.
Johnson testified that when he saw Boyd in November-December 2006, Boyd had
a short, “Caeser cut” hairstyle and did not have dreadlocks, cornrows, long chin
hair, or a goatee. Johnson was willing to testify on behalf of Boyd, but when he
arrived at the courthouse to testify, he was told that it was too late.
The Missouri Court of Appeals determined that counsel’s failure to secure
or call Mr. Johnson to testify at trial did not rise to the level of ineffective
assistance inasmuch as Johnson’s testimony would have been cumulative to other
evidence adduced at trial, and specifically, to Ms. Young’s testimony and the
December 2006 photographs, which were taken in the same time frame as when
Johnson last saw Boyd before the robbery. (Resp. Exh. J at 6.) Because the failure
to present cumulative evidence does not result in prejudice sufficient to give rise to
a claim of ineffective assistance of counsel, Winfield v. Roper, 460 F.3d 1026,
1034 (8th Cir. 2006), the court of appeals’ decision that counsel was not ineffective
for failing to present cumulative evidence was reasonable and did not run afoul of
established Supreme Court precedent.
In his Traverse, however, Boyd argues that Johnson’s testimony could not be
considered merely “cumulative” given that Ms. Young’s credibility and objectivity
- 12 -

were sufficiently placed in doubt because of evidence that she was Boyd’s sister
and had criminal convictions. Boyd argues that, unlike Young, Johnson was a
disinterested witness and his testimony regarding Boyd’s physical appearance
would have refuted the State’s identification evidence – despite Young’s perceived
bias – thereby strengthening Boyd’s defense of mistaken identity. For the
following reasons, Boyd’s argument fails.
Counsel may render ineffective assistance where he fails to make reasonable
efforts to procure testimony that he knows to be significant to the defense. See
Tosh v. Lockhart, 879 F.2d 412, 414 (8th Cir. 1989). This is true in circumstances
where, as here, consistent testimony is elicited from another witness but that
witness’s objectivity has sufficiently been placed in doubt. Id. at 414-15 (lone alibi
witness’s potential bias at issue because of her romantic relationship with
defendant; four disinterested alibi witnesses with corroborating testimony not
called or secured by counsel). In Boyd’s case, however, Young’s testimony was
not the only evidence adduced by the defense regarding Boyd’s physical
appearance – the jury also had before it photographs of Boyd taken in December
2006, which was the time Johnson says he last saw Boyd prior to the robberies.
Inasmuch as Johnson’s testimony as to how Boyd appeared in December 2006 was
cumulative to photographic evidence of Boyd’s appearance in December 2006 –
the objectivity of which was not questioned – it cannot be said that counsel was
- 13 -

ineffective for failing to call Johnson to provide cumulative testimony at trial,
regardless of his availability.
Based on the above, the Missouri Court of Appeals’ decision denying Boyd
relief is well based on law and fact. I am unaware of any “clearly established
Federal law, as determined by the Supreme Court of the United States” of which
the court’s decision runs afoul, nor has Boyd demonstrated such. Therefore, it
cannot be said that the State court’s adjudication of the instant claim “resulted in a
decision that was contrary to, or involved an unreasonable application of,” clearly
established federal law. 28 U.S.C. § 2254(d)(1). Nor has Boyd shown that the
court’s determination “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)(2).
Accordingly, the claim raised in Ground 2 of the instant petition is denied.
2.

Failure to Permit Boyd to Testify

Boyd did not testify at trial. On his claim that counsel was ineffective for
unilaterally deciding not to call him to testify on his own behalf, the Missouri
Court of Appeals summarized the evidence adduced at the post-conviction motion
hearing as follows:
[T]rial counsel testified that he explained to movant his right to testify
and that the decision to testify ultimately belonged to him. He told
him that Ms. Young could testify to his alibi and to his appearance on
the date of the robbery, and that if movant elected to testify, the state
- 14 -

would introduce into evidence his prior convictions for drug
possession and carrying a concealed weapon. He never told movant
he could not testify. During movant’s case, movant never said
anything to trial counsel about wanting to take the stand. Movant
testified that he discussed taking the stand with trial counsel, that trial
counsel said he did not think it would be a good idea, but that he was
“under the impression” that he was going to testify at trial because it
would be “vital” to his defense. Movant also admitted that trial
counsel told him that the decision to testify ultimately belongs to him.
He did not tell trial counsel that he wanted to testify because “[h]e
already knew I wanted to testify.”
(Resp. Exh. J at 7.)3
A criminal defendant has a constitutional right to testify, and only the
defendant may waive that right. See Rock v. Arkansas, 483 U.S. 44 (1987); Frey v.
Schuetzle, 151 F.3d 893, 897-98 (8th Cir. 1998). A defendant’s waiver of his right
to testify, like his waiver of other fundamental constitutional rights, must be made
voluntarily and knowingly. United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.
1987) (citing Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); Johnson v. Zerbst,
304 U.S. 458, 464-65 (1938)). “[A] knowing and voluntary waiver of the right
may be found based on a defendant’s silence when his counsel rests without calling
him to testify.” Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998). “[U]nder
such circumstances the defendant must act ‘affirmatively’ rather than apparently
‘acquiesc[ing] in his counsel’s advice that he not testify, and then later claiming
that his will to testify was overcome.’” Id. (quoting United States v. Bernloehr,
3

Because Boyd does not rebut these factual findings with clear and convincing evidence, I
presume them to be correct. 28 U.S.C. § 2254(e)(1).
- 15 -

833 F.2d 749, 751-52 (8th Cir. 1987)).
Here, counsel advised Boyd that it was Boyd’s decision as to whether he
testified; but that if he did so, evidence of his prior convictions would be
introduced and could be considered by the jury on matters relating to his
credibility. For this reason, and others, counsel advised Boyd not to testify. (Resp.
Exh. G at 9-11.) Counsel may advise a defendant not to testify as a matter of
reasonable trial strategy. Whitfield v. Bowersox, 324 F.3d at 1009, 1016-17 (8th
Cir.), vacated in part on other grounds, 343 F.3d 950 (8th Cir. 2003). After calling
two witnesses at trial, the defense rested without calling Boyd to testify. Boyd
remained silent and did not affirmatively state to either the court or to counsel that
he wanted to testify. Given his silence in these circumstances, Boyd cannot now
argue that he did not effectively waive his right to testify. See Frey, 151 F.3d at
898; Bernloehr, 833 F.2d at 751-52.
Boyd does not assert that counsel overbore his will to testify, and the record
supports that the issue never arose. Nor does Boyd demonstrate that his testimony,
if adduced, would have made a difference to the jury. Indeed, as counsel testified
at the post-conviction hearing, Boyd’s proffered testimony was similar to or the
same as other evidence adduced by the defense at trial. (Resp. Exh. G at 9-10.)
Accordingly, Boyd has not shown that his trial counsel’s performance was
deficient or that he suffered any prejudice on account of counsel’s assistance
- 16 -

regarding his right to testify.
The Missouri Court of Appeals deferred to the post-conviction motion
court’s finding that counsel did not prohibit Boyd from testifying and that Boyd
failed to demonstrate any reasonable probability that the outcome of the trial would
have been different had he testified. The court of appeals further found that
counsel’s advice to Boyd that he not testify was a matter of sound trial strategy.
Because the decision of the Missouri Court of Appeals was supported by the
factual record and was not contrary to, or an unreasonable application of, clearly
established federal law, Boyd is not entitled to habeas relief on this ground.
Accordingly, the claim raised in Ground 3 of the instant petition is denied.
Certificate of Appealability
A district court may issue a certificate of appealability only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). A substantial showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve
additional proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). No
reasonable jurist could differ on any of Boyd’s claims. Therefore, I will not issue a
certificate of appealability on any of the claims.
Accordingly,
IT IS HEREBY ORDERED that the petition of Darnell C. Boyd for writ of
- 17 -

habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that no certificate of appealability shall issue
in this case inasmuch as petitioner has failed to make a substantial showing that he
has been denied a constitutional right.
A separate Judgment is entered this same date in accordance with this
Memorandum and Order

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 8th day of March, 2016.

- 18 -