Thompson v. Russell

Filing 33

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. [Doc. 1 .] IT IS FURTHER ORDERED that a separate judgment will be entered this same date. IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Clarence Thompson, Jr. for a Certificate of Appealability will be DENIED. Signed by Magistrate Judge Nannette A. Baker on 6/23/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CLARENCE THOMPSON, JR.,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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Case No. 4:13-CV-446 NAB

MEMORANDUM AND ORDER
This action is before the Court on Petitioner Clarence Thompson Jr.’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Respondent Terry Russell filed a
Response. [Doc. 16.] Petitioner filed a Reply Brief. [Doc. 28.] The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c)(1). [Doc. 11.] For the reasons set forth below, Thompson’s petition for writ of habeas
corpus will be denied.
I.

Background
Thompson was convicted in a jury trial of two counts of statutory rape and two counts of

statutory sodomy. Viewed in the light most favorable to the verdict, the evidence presented at
trial established that E.C. 1 (Victim) was twelve years old at the time of the charged crimes and
was living with Thompson, her godfather. 2 Victim and Thompson also lived with Victim’s

1

Because the records and transcripts include the names of minors, the Court will refer to the victim as Victim and the
other minors by their initials.
2
These facts are taken substantially from the Missouri Court of Appeals’ decision in Thompson’s direct appeal.
State v. Thompson, 341 S.W.3d 723, 726-27 (Mo. Ct. App. 2011). A state court’s determination of a factual issue
shall be presumed to be correct. 28 U.S.C. § 2254.

brother K.C., then eight years of age; Victim’s mother; Thompson’s wife; and Thompson’s
infant son.
Thompson began sexually abusing Victim in Arkansas when Victim was nine years old.
Victim testified that Thompson touched her, raped her, and forced her to perform oral sex on
him. On one occasion, when the families were living in Arkansas, K.C. walked into the living
room and saw Thompson laying on top of and “humping” Victim with his pants down.
In May 2007, Thompson’s and Victim’s families moved from Arkansas to St. Louis
County. Upon relocating to St. Louis, Thompson, Victim, and their families stayed for several
weeks in a room at the Oak Grove Inn, a motel in South County. One night, when Victim awoke
to use the bathroom, Thompson followed her into the bathroom and raped her. Another night at
the Oak Grove Inn, Thompson lay on the air mattress Victim was sharing with K.C. and touched
Victim’s chest and vagina.
In September 2007, Victim’s and Thompson’s families were sharing a room in the
basement of Thompson’s sister's house.

On September 24, 2007, Victim told her special

education resource teacher, Sheronda Laden, “her stomach was hurting” and “it felt like
something was wiggling in her stomach.” Later that day, Victim told Ms. Laden that she needed
to talk to her and confided that Thompson “was having sex with her” and “[h]e made her put his
penis in her mouth, and if she told anyone, he was going to kill her mother and break her neck.”
Victim informed Ms. Laden that the abuse was occurring almost every night or every other night.
Before sending Victim home that evening, Ms. Laden advised Victim not to bathe if Thompson
abused her again.
Around 2:00 or 3:00 a.m. on September 25, 2007, Victim woke up to use the bathroom,
which was on the main level of the house. When Victim reached the top of the stairs, Thompson

2

pulled her into the kitchen, started touching her chest, removed his shirt, pulled off Victim’s
clothes, and continued touching Victim’s chest and vagina. Thompson then raped Victim on the
kitchen floor.
When Victim arrived at school on September 25, 2007, she told Ms. Laden that “it
happened again.” Ms. Laden called the Division of Family Services (DFS). DFS and the police
brought Victim to St. Louis Children’s Hospital, where hospital staff administered a rape kit to
collect physical evidence. At the hospital, Victim separately spoke to Detective Angela Bruno, a
child abuse detective with the St. Louis County Police, and Stephanie Whitaker, a pediatric
medical social worker in the hospital’s emergency department. Victim told Ms. Whitaker that,
early that morning, Defendant had pulled her into the kitchen, laid her on the floor, touched her
vagina with his fingers, and “put his stuff in her vagina.” Victim also told Ms. Whitaker that
Defendant began abusing her when she was around nine years old.
Forensic scientists at the St. Louis County Police Department Crime Laboratory tested
the items in the rape kit for bodily fluids and found sperm cells on the internal and external
vaginal swabs and on Victim’s underwear. The male DNA found on the vaginal swab and
Victim’s underwear matched Thompson’s genetic profile.
The trial court conducted a jury trial in May 2010. At trial, the State presented the
testimony of Victim, K.C., Ms. Laden, Ms. Whitaker, the emergency room nurse from St. Louis
Children’s Hospital who helped administer Victim’s rape kit, the forensic interviewers at the
Children’s Advocacy Center (CAC) who interviewed Victim and K.C., and various police
officers and forensic scientists involved in the investigation. The defense called as witnesses
Thompson’s wife, Thompson’s sister, and Thompson’s sister’s boyfriend.

At sentencing,

Thompson received four concurrent life sentences on all counts. (Resp’t Ex. I at 1003-1004.)

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II.

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

violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ,
a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91
(2011). “In general, if a convicted state criminal defendant can show a federal habeas court that
his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of
habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 133 S.Ct.
1911, 1917 (2013). The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners after this
statute’s effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In
conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding
whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a
decision that is “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented at the State court
proceedings.” 28 U.S.C. § 2254(d). A determination of a factual issue made by a state court is
presumed to be correct unless the petitioner successfully rebuts the presumption of correctness
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
For purposes of § 2254(d)(1), the phrase “clearly established federal law refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state court decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “In other words,
clearly established federal law under § 2254(d)(1) is the governing legal principle or principles
set forth by the Supreme Court at the time the state court renders its decision.” Id. To obtain

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habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he
thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris, 459 F.3d
849, 853 (8th Cir. 2006).
A state court’s decision is “contrary to” clearly established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from [the] precedent.’”

Penry v.

Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)).
A state court decision is an unreasonable application of clearly established Supreme
Court precedent if it correctly identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case. Id. (citing Williams, 529 U.S. at 407–408). “A federal
habeas court making the unreasonable application inquiry should ask whether the state court’s
application of clearly established federal law was objectively reasonable.” Penry, 532 U.S. at
793. “A state court decision involves ‘an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it is shown
that the state court’s presumptively correct factual findings do not enjoy support in the record.”
Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute error is
inconsistent with the presumption that state courts know and follow the law.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). AEDPA’s highly deferential standard demands that state court
decisions be given the benefit of the doubt. Id.

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III.

Discussion
Thompson’s habeas petition presents four ineffective assistance of counsel claims and a

fifth claim- whether the trial court abused its discretion in allowing the introduction of K.C.’s
deposition testimony.
A.

Trial Court Error

First, Thompson claims that the trial court erred in the admission of K.C.’s deposition
testimony, because it lacked reliability. The admissibility of evidence is a matter of state law and
does not form a basis for habeas relief unless the trial error is so great as to amount to a denial of
due process. Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006). “It is not the province
of a federal habeas court to reexamine state court determinations on state law questions.” Estelle
v. McGuire, 502 U.S. 62, 67 (1991). “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Id. at 68. “A federal issue is raised only where trial errors infringe on a specific constitutional
protection or are so prejudicial as to amount to a denial of due process.” Bucklew, 436 F.3d at
1018. “To meet this burden, a habeas petitioner must show that absent the alleged impropriety
the verdict probably would have been different.” Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th
Cir. 2007). In making this determination, the federal habeas court “must review the totality of
the facts in the case and analyze the fairness of the particular trial under consideration.” Hobbs
v. Lockhart, 791 F.2d 125, 128 (8th Cir. 1986). “Rulings on the admission or exclusion of
evidence in state trials rarely rise to the level of a federal constitutional violation.” Nebinger v.
Ault, 208 F.3d 695, 697 (8th Cir. 2000).

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In this case, Missouri law allows for the introduction of hearsay testimony under Mo.
Rev. Stat. § 491.075.3

The state courts evaluated the admissibility of K.C.’s deposition

testimony in light of § 491.075. On direct appeal, the state appellate court found that the
admission of the testimony was not error, because the totality of circumstances surrounding
K.C.’s testimony demonstrated that it was reliable and met the requirements for admission under
§ 491.075. 4 Thompson, 341 S.W.3d at 729-30. The state appellate court also found that there
was overwhelming evidence of Thompson’s guilt. Id. at 731. When viewed in consideration of
all the evidence, the admission of K.C.’s deposition testimony does not rise to the level of a
specific constitutional violation or amount to a denial of due process.

Furthermore, the

admission of K.C.’s deposition testimony was not outcome determinative, because there was
DNA evidence and the testimony of the victim that specifically addressed the crimes charged.
Therefore, the Court will deny habeas relief on this claim.
B.

Ineffective Assistance of Counsel Claims

Thompson brings three claims of ineffective assistance of trial counsel and one claim of
ineffective assistance of appellate counsel. He asserts that trial counsel was ineffective for
(1) failure to object to the state’s evidence that victim was intellectually disabled 5, (2) failure to
object and preserve for review the state’s improper voir dire questioning, and (3) failure to object
and preserve for review the state’s repeated bolstering of witness, K.C. Thompson claims that
3

Missouri law allows a statement by a child under the age of fourteen, or a vulnerable person, not otherwise
admissible by statute or court rule, as substantive evidence to prove the truth of the matter asserted if the court finds,
in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement
provide sufficient indicia of reliability; and the child or vulnerable person testifies at the proceedings, is unavailable
as a witness; or is otherwise physically available as a witness but the court finds that the significant emotional or
psychological trauma which would result from testifying in the personal presence of the defendant makes the child
or vulnerable person unavailable as a witness at the time of the criminal proceeding. Mo. Rev. Stat. § 491.075.
4
The state court also denied plain error review of Thompson’s claims that admission of such testimony violated his
rights to a fair trial, fully prepare a defense, and effectively cross-examine witnesses and the admission violated a
state court rule. These claims are not reviewable by this Court. See Hayes, 766 F.2d at 1253.
5
Thompson uses the term mentally retarded. This opinion uses the term “intellectually disabled” or “intellectual
disability” to describe the same phenomenon. See Hall v. Florida, 134 S.Ct. 1986, 1990 (2014).

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appellate counsel was ineffective for failing to assert a claim that the trial court erred in allowing
K.C.’s deposition testimony to be entered into evidence.
1.

Ineffective Assistance of Counsel Standard

“The Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial system to
produce just results.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “An accused is
entitled to be assisted by an attorney, whether retained or appointed who plays the role necessary
to ensure that the trial is fair.” Id. To succeed in a claim “that counsel’s assistance was so
defective as to require reversal of a conviction,” a petitioner must establish (1) that the trial
counsel’s performance fell below an objective standard of reasonableness and (2) that this
deficient performance prejudiced the Petitioner’s defense. Strickland, 466 U.S. at 687-88.
The “performance” component of Strickland requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
To satisfy this prong, a petitioner must first identify the specific acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment. Id. at 690. The
court must then examine the totality of the circumstances in order to determine whether “the
identified acts or omissions were outside the wide range of professionally competent assistance.”
Id. In making this determination, the court should recognize that trial counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. “Miscues and omissions are inevitable in any case
and there is no such thing as a perfect trial.” Medearis v. U.S., 469 F.Supp.779, 785 (D.S.D.
2006).

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

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federal law, the remaining question under the “unreasonable application” clause of § 2254(d) is
“whether the state court's determination under the Strickland standard is unreasonable, not
merely whether it is incorrect.” Id. at 831 (citing Harrington v. Richter, 562 U.S. 86, 101
(2011)). This standard is difficult, and “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102.
2.

Failure to Object regarding State’s Voir Dire Questioning

Thompson states that his trial counsel was ineffective, because she failed to object to the
prosecutor repeatedly seeking commitments from jurors as to how they would treat certain
evidence. “No hard-and-fast formula dictates the necessary depth or breadth of voir dire.”
Skilling v. United States, 561 U.S. 358, 386 (2010). “The conduct of voir dire is generally left to
the trial court’s sound discretion.” Nicklasson v. Roper, 491 F.3d 830, 835 (8th Cir. 2007).
“Voir dire plays a critical role in assuring criminal defendants that their Sixth Amendment right
to an impartial jury will be honored. Without an adequate voir dire the trial judge cannot fulfill
the responsibility to remove prospective jurors who may be biased and defense counsel cannot
intelligently exercise peremptory challenges.” Ramsey v. Bowersox, 149 F.3d 749, 756 (8th Cir.
1998) (citing United States v. Spaar, 748 F.2d 1249, 1253 (8th Cir. 1984)). “Although there are
no constitutional provisions directly addressing the use of hypothetical questions during voir
dire, there may be circumstances where a party’s manner of conducting voir dire renders a jury
impartial and thereby triggers a Sixth Amendment violation.” Hobbs, 791 F.2d at 129.
Thompson’s petition does not outline the specific questions he contests were improper by
asking the jurors to commit how they would treat certain evidence. In his Amended Rule 29.15
motion, Thompson identified the following questions as improper:
“And my question is, with testimonial evidence, one eye
witness, are you going to be able to consider that if you
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believe that eye witness beyond a reasonable doubt? Is that
going to be enough for you?”
“…. There are no eye witnesses other than the victim …
Would you be able to consider that?”
“So would you require more than testimonial evidence?”
“I’ve asked whether or not you can consider the evidence
based on just testimony, victim testimony of a child, and I
want to take it one step further and I want to ask if – your
answer changes if that child is developmentally delayed?”
“I mentioned or I asked whether your answer changes if you
– if the child had special needs and I didn’t – nobody raised
their hands.”
“Would you require more if the person that went on the stand
was mildly mentally retarded?”
“What about mildly mentally retarded?”
“What if there is absolutely no physical evidence? What if
there is no DNA that links the defendant to this crime? Is
there anyone who would have a difficult time [sic] render a
verdict?”
“We had talked quite a bit about whether or not you could
base a decision based on testimonial evidence alone. In this
case I expect that there will be more than testimonial
evidence. There will be DNA evidence. There will be other
types of evidence. Those of you who answered that you will
not be able to base your decision on testimony alone would
you be able to consider all of the evidence and base a
decision from what you hear on the witness stand from each
of the witnesses?”
(Resp’t Ex. I at 257, 259-60, 262, 264-65, 270, 273-74.) The post-conviction motion court
denied Thompson’s claim and the Missouri Court of Appeals affirmed the denial. (Resp’t Exs.
D, H.) The state appellate court found that the questions were not improper, because the line of
questioning was pertinent. (Resp’t Ex. H at 6.) The state appellate court found that although
multiple witnesses testified, the victim was the only eyewitness who testified to the ultimate facts
11

of the criminal acts and the DNA evidence was only relevant to the statutory rape charge from
September 2007.
After a careful review of the state court record, the Court finds that relief should not be
granted on this claim. The questions appear to ascertain whether the jurors could convict
Thompson based on various types of evidence. See Hobbs, 791 F.2d at 129. The jurors were
never asked to commit to a particular position regarding any of the evidence. It is extremely
important for both sides to determine if a juror will follow the court’s instructions. For example,
if a juror required additional proof beyond the evidence presented at trial, including the minor
victim’s testimony going to the ultimate issue, that juror would be holding the state to a higher
burden of proof, which goes against the court’s instructions. Thompson’s claim lacks merit and
trial counsel cannot be found to be ineffective for failure to advance a non-meritorious claim.
Rodriguez v. U.S., 17 F.3d 225, 226 (8th Cir. 1994) (counsel’s failure to advance a meritless
argument cannot constitute ineffective assistance). The Court will deny relief on this claim.
3.

Procedurally Defaulted Ineffective Assistance of Counsel Claims

Thompson has defaulted the three remaining ineffective assistance of counsel claims.
“Failure to raise a claim on appeal reduces the finality of appellate proceedings, deprives the
appellate court of an opportunity to review trial error, and undercuts the State’s ability to enforce
its procedural rules.” Murray v. Carrier, 477 U.S. 478, 491 (1986). “In all cases in which a state
prisoner has defaulted his federal claims in state court pursuant to an independent and adequate
state procedural rule, federal habeas review is barred.” Coleman v. Thompson, 501 U.S. 722,
750 (1991). To overcome the default, a defendant must demonstrate either cause and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that a failure to
consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. 722 at

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750. To show cause for the default, defendant must demonstrate that some objective factor
external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.
Murray, 477 U.S. at 488. For example, a defendant could demonstrate that the factual or legal
basis for a claim was not reasonably available to counsel or some interference by officials made
compliance impracticable. Id at 488. While ineffective assistance of counsel constitutes cause
for a procedural default, the exhaustion doctrine generally requires that an ineffective assistance
claim be presented to the state courts as an independent claim before it may be used to establish
cause of a procedural default in federal habeas proceedings. Id. at 489. An ineffective assistance
of counsel claim asserted as cause for the procedural default of another claim can itself be
procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). This procedural
default may be excused if the prisoner can then satisfy the cause-and-prejudice standard with
respect to that claim. Id.
Section 2254(i) provides that “the ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.”

28 U.S.C. § 2254(i).

The Supreme Court has

recognized a limited exception to this rule. In Martinez v. Ryan, the Supreme Court held:
Where under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective
assistance at trial, if in the initial review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012). The Eighth Circuit has held that Martinez does
not stand for the proposition that the failure to preserve claims on appeal from a post-conviction
proceeding can constitute cause. Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) (citing

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Martinez, 132 S.Ct. at 1320) (holding does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings).
Thompson has failed to identify any reasons to excuse the procedural defaults of these
claims. Therefore, the Court finds that these claims are not reviewable. Even if the claims were
fully exhausted, all of the claims lack merit and relief would be denied on each claim as
described below.
a.

Failure to Object and Preserve for Review Bolstering of K.C.’s
Testimony

Thompson contends that his attorney should have objected and preserved for review, the
prosecution’s bolstering of witness K.C. through the admission of his deposition testimony. K.C.
provided deposition testimony on May 20, 2009. The trial court held a hearing on April 14, 2010
to determine the admissibility of testimony pursuant to § 491.075 at trial. (Resp’t Ex. I at 7-90.)
Thompson’s counsel objected to the hearing, because all of the witnesses could not attend.
(Resp’t Ex. I at 8.) The trial judge overruled the objection and the hearing took place. During
trial, Thompson’s attorney made a continuing objection to any testimony by any witness
testifying pursuant to § 491.075

in reference to the victim.

(Resp’t Ex. I at 603-608.)

Thompson’s attorney objected to K.C.’s testimony at trial. (Resp’t Ex. I at 568.) Thompson’s
attorney also objected to the testimony of Megan Marietta regarding her interview with K.C. and
the admission of the transcript and DVD of the interview. (Resp’t Ex. I at 737, 739.) The
transcript of K.C.’s deposition testimony was read at trial over Thompson’s continuing objection.
(Resp’t Ex. I at 779-782.) Thompson asserted this claim in his Rule 29.15 post-conviction
motion, but did not appeal the denial of the claim by the post-conviction motion court.
Federal habeas courts should not reexamine state court determinations on state law
questions. Estelle, 502 U.S. at 67. “In conducting habeas review, a federal court is limited to
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deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Id. at 68. “A federal issue is raised only where trial errors infringe on a specific constitutional
protection or are so prejudicial as to amount to a denial of due process.” Bucklew, 436 F.3d at
1018. In making this determination, the federal habeas court “must review the totality of the
facts in the case and analyze the fairness of the particular trial under consideration.” Hobbs, 791
F.2d at 128.
In this case, Missouri law allows for the introduction of hearsay testimony under
§ 491.075. The state courts evaluated the admissibility of K.C.’s deposition testimony in light of
§ 491.075. The post-conviction motion court found that the admission of the testimony was not
bolstering, because it was not wholly cumulative of anyone else’s testimony. (Resp’t Ex. D at
11.) The post-conviction motion court also noted that defense counsel made several objections
to the testimony and that it was highly unlikely that any additional objections would have been
successful or affected Thompson’s right to a fair trial or appeal. (Resp’t Ex. D at 12.) When
viewed in consideration of all the evidence, the admission of K.C.’s deposition testimony does
not rise to the level of a specific constitutional violation or amount to a denial of due process.
K.C.’s attorney did not render ineffective assistance of counsel, because she properly objected to
the testimony. Further, Thompson cannot show that his counsel’s representation fell below an
objective standard of reasonableness or that he was prejudiced by any failure to make additional
objections to the ones made during pre-trial and trial proceedings. Therefore, Thompson’s
ineffective assistance of counsel claim is denied for being defaulted and lacking merit.

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b.

Failure to Object to State’s Evidence that Victim was
“intellectually disabled”

Next, Thompson contends that his trial counsel was ineffective, because she failed to
object to the state’s evidence that Victim was intellectually disabled. Thompson asserts that
evidence regarding Victim’s intellectual disability was more prejudicial than probative. The
post-conviction motion court held that trial counsel’s approach to the Victim’s developmental
delays was clearly a strategic decision and that the record refuted Thompson’s claims that his
attorney was ineffective for failure to object to the evidence of Victim’s intellectual disability.
(Resp’t Ex. D at 55.) Further, the post-conviction motion court found that this claim lacked
prejudice, because there was overwhelming evidence of Thompson’s guilt. (Resp’t Ex. D at 55.)
“Reasonable performance of trial counsel includes an adequate investigation of the facts,
consideration of viable theories, and development of evidence to support those theories.” Cagle
v. Norris, 474 F.3d 1090, 1097 (8th Cir. 2007). “Judicial scrutiny of counsel’s performance is
highly deferential, indulging a strong presumption that counsel’s conduct falls within the range
of reasonable professional judgment.” Forrest v. Steele, 764 F.3d 848, 853 (8th Cir. 2014). A
reviewing court “must look beyond the distorting effects of hindsight.” Sherron v. Norris, 69
F.3d 285, 290 (8th Cir. 1995). “A claim of ineffective assistance cannot be based on decisions
that relate to a reasoned choice of trial strategy, even when it later may be shown improvident.”
Sherron, 69 F.3d at 290 (citing Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir.), cert denied,
474 U.S. 922 (1985)). The Sixth Amendment “does not guarantee the right to perfect counsel; it
promises only the right to effective assistance.” Burt v. Titlow, 134 S.Ct. 10, 18 (2013).
Based on the Court’s review of this claim, the Court finds that Thompson has failed to
show that his counsel rendered ineffective assistance. Trial counsel cross-examined the state’s
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witnesses regarding Victim’s developmental delays. Thompson has not shown that counsel’s
failure to object deprived him of a right to a fair trial. Further, there was overwhelming evidence
of Thompson’s guilt, especially considering the DNA evidence.

Therefore, Thompson’s

ineffective assistance of counsel claim is denied for being defaulted and lacking merit.
c.

Appellate Counsel’s Failure to Raise Issue that Trial Court
Erred in Admission of K.C.’s Deposition Testimony.

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

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The Court has previously addressed Thompsons’ claims regarding the admission of
K.C.’s deposition and found habeas review is foreclosed on these claims. See supra Section
III.A.

Because the claim lacks substantial merit, Thompson cannot establish ineffective

assistance of appellate counsel for failure to raise this claim on direct appeal. Thompson’s claim
is denied for being defaulted and lacking merit.
IV.

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

U.S.C. § 2254 should be denied. The Court finds that the state court’s findings and conclusions
regarding Thompson’s claims were not contrary to, nor do they involve an unreasonable
application of clearly established federal law as determined by the Supreme Court of the United
States, nor did they result in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings.

Further, because

Thompson has made no showing of a denial of a constitutional right, the Court will not issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522
(8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is DENIED. [Doc. 1.]
IT IS FURTHER ORDERED that a separate judgment will be entered this same date.

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IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by
Clarence Thompson, Jr. for a Certificate of Appealability will be DENIED.
Dated this 23rd day of June, 2016.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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