Vaughn v. Russell

Filing 13

MEMORANDUM: For the reasons discussed above, the court concludes that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly established federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make a substantial showing of the denial of a constitutional right and the court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Carol E. Jackson on 12/23/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEMETRIUS D. VAUGHN,

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Petitioner,
vs.
TERRY RUSSELL,
Respondent.

No. 4:13-CV-452 (CEJ)

MEMORANDUM
This matter is before the Court on the petition of Demetrius Vaughn for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
I.

Procedural Background

Petitioner Demetrius Vaughn is presently incarcerated at the Eastern
Reception Diagnostic and Correctional Center pursuant to the sentence and
judgment of the 22nd Judicial Circuit Court (St. Louis City). Petitioner was charged
with robbery first degree and armed criminal action. On October 15, 2009, a jury
found petitioner guilty of first-degree robbery, but acquitted him of the armed
criminal action charge. Petitioner was sentenced as a prior and persistent offender
to twenty-five years of imprisonment. Judgment, Resp. Ex. 1 at 142-44. Petitioner
appealed the judgment and, on December 28, 2010, the Missouri Court of Appeals
affirmed. State v. Vaughn, No. ED93945 (Mo. Ct. App. Dec. 28, 2010), Resp. Ex.
3.
Petitioner filed a timely motion for post-conviction relief pursuant to Missouri
Supreme Court Rule 29.15, which the post-conviction court denied without holding

an evidentiary hearing. On June 12, 2012, the Missouri Court of Appeals affirmed
the denial of post-conviction relief. Vaughn v. State, No. ED97196 (Mo. Ct. App.
June 12, 2012) Resp. Ex. 6. On March 3, 2013, petitioner timely filed this petition
for relief pursuant to 28 U.S.C. § 2254.
II.

Factual Background

On October 10, 2005, petitioner and Ronald Duff entered the offices of
Missouri Title and Loan in St. Louis. Employee Angelo Washington was working with
a customer at the counter. He spoke briefly to the two men, saying he would be
with them shortly, but neither man responded. Petitioner leaned against the
counter with only his left hand visible, and Duff walked behind the counter, saying,
“I used to work here.” When Mr. Washington turned toward Duff, he heard a noise
from behind him that sounded like a gun cocking. Petitioner said, “Don’t be stupid.”
Even though he did not see a gun and petitioner did not make any reference to a
gun, Mr. Washington believed that petitioner was holding a gun in his right hand
and that he “meant business.” Petitioner testified at trial that the “don’t be stupid”
comment was directed to Duff, not Washington. Duff opened the cash register and
removed about $600 in cash, and he and petitioner left the building.
Additional facts will be included as necessary to address petitioner’s claims.
III.

Legal Standard

When a claim has been adjudicated on the merits in state court proceedings,
habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court’s determination:
(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
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(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)(1)-(2).
A state court’s decision is “contrary to” clearly established law if “it applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or
if it confronts a set of facts that is materially indistinguishable from a decision of
[the Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S.
133, 141 (2005). “The state court need not cite or even be aware of the governing
Supreme Court cases, ‘so long as neither the reasoning nor the result of the statecourt decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.
2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis of
the state court’s decision, [the federal court’s] focus is on the result and any
reasoning that the court may have given; the absence of reasoning is not a barrier
to a denial of relief.” Id.
A decision involves an “unreasonable application” of clearly established law if
“the state court applies [the Supreme Court’s] precedents to the facts in an
objectively unreasonable manner,” Payton, 125 S. Ct. at 1439; Williams v. Taylor,
529 U.S. 362, 405 (2000), or “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Id. at 406. “Federal habeas relief is warranted only when the refusal
was ‘objectively unreasonable,’ not when it was merely erroneous or incorrect.”
Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at
410-11).
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To preserve a claim for relief, “a habeas petitioner must have raised both the
factual and legal bases” of his claim to the state court, and afforded that court a fair
opportunity to review its merits. Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)
(citations omitted). Where a claim is defaulted, a federal habeas court will consider
it only if the petitioner can establish either cause for the default and actual
prejudice or that failure to consider the claim will result in a fundamental
miscarriage of justice. Id. To establish “cause” for the default, a petitioner generally
must “show that some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986). To establish prejudice, the petitioner “must show that the errors of
which he complains ‘worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.’” Ivy v. Caspari, 173 F.3d 1136,
1141 (8th Cir. 1999) (quoting United States v. Frady, 456 U.S. 152, 170 (1982))
(emphasis omitted).
IV.

Discussion
Ground 1: Sufficiency of the Evidence

Petitioner asserts that there was insufficient evidence to sustain a conviction
for first-degree robbery because there was no evidence that he displayed or
threatened the use of a deadly weapon.
In reviewing the sufficiency of the evidence to support a criminal conviction,
the court asks 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.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis in original). In applying this standard, the scope of review “is
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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.” Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003) (citations
omitted). “[I]t is the responsibility of the jury—not the court—to decide what
conclusions should be drawn from evidence admitted at trial.” On habeas review, “a
federal court may not overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with the state court.
The federal court instead may do so only if the state court decision was ‘objectively
unreasonable.’” Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (citations omitted).
Under Missouri law, a person commits the crime of first-degree robbery when
“he forcibly steals property and in the course thereof he, or another participant in
the crime, . . . [u]ses or threatens the immediate use of a dangerous instrument
against any person.” Mo. Rev. Stat. § 569.020. “What is distinctive about the crime
of robbery is the taking of the property of another by violence or by putting the
victim in fear.” State v. Simrin, 384 S.W.3d 713, 719 (Mo. Ct. App. 2012) (internal
quotation and citation omitted). “Robbery in the first degree may be found where
the victim is in fear even though there was no real possibility of injury.” State v.
Belton, 949 S.W.2d 189, 192 (Mo. Ct. App. 1997) (citation omitted). “The fact that
a victim perceives there to be a weapon that remains unseen is sufficient whether
or not, in fact, such a weapon exists.” Id. at 192-93 (citation omitted). “Whether or
not the object that is perceived as a deadly weapon or dangerous instrument is in
fact capable of producing harm is unimportant.” Simrin, 384 S.W.3d at 719 (Mo. Ct.
App. 2012) (citation omitted). A conviction for first-degree robbery will be sustained
even though the defendant did not directly threaten or display a dangerous
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instrument to the victim so long as “there was evidence from which the fact finder
could reasonably conclude that the victim believed that the defendant was
threatening its use.” Lewis v. State, 24 S.W.3d 140, 144 (Mo. Ct. App. 2000).
In this case, petitioner’s hand was out of sight and no gun was visible, but
Mr. Washington heard a clicking noise that sounded like a gun being cocked and he
thought petitioner “meant business.” The Missouri Court of Appeals determined that
this evidence, coupled with petitioner’s words, “Don’t be stupid,” and Duff’s actions
in taking money from the cash register, “was sufficient evidence to instill fear in
Washington,” and a rational jury “could infer that [petitioner] was threatening
Washington not to resist as he and Duff robbed the store.” State v. Vaughn at 8.
Petitioner has failed to state a claim for relief and his first ground will be denied.
Ground 2: Violation of Interstate Agreement on Detainers
Under the Interstate Agreement on Detainers (IAD), an accused is to be
brought to trial within 180 days of a properly-filed request for a disposition of
detainers. Mo.Rev.Stat. § 217.490. Petitioner contends that the state courts erred
in denying his motion to dismiss for violation of the IAD.
While petitioner was awaiting trial on the charges in the underlying Missouri
case and in another state case, 1 he pleaded guilty to a felon-in-possession charge
in a federal district court. On August 21, 2008, he was sentenced to 30 months’
imprisonment, which he served in a federal penitentiary in Kentucky.
On February 6, 2009, defense counsel in the Missouri case filed a motion to
dismiss for violation of petitioner’s right to speedy trial or, in the alternative, a

1

Petitioner was also awaiting disposition of state charges for possession of heroin,
possession of cocaine base, possession of drug paraphernalia, and driving while license
suspended or revoked. See Resp. Ex. 1 at 77.

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demand for a speedy trial pursuant to the Uniform Mandatory Disposition of
Detainers Law (UMDDLA). Resp. Ex. 1 at 47-48. On March 11, 2009, petitioner filed
pro se motions for speedy trial and for disposition of detainers. Docket Entry, Resp.
Ex. 1 at 9; Transcript, Resp. Ex. 1 at 83-97. On July 21, 2009, 2 the state submitted
a request to the Federal Bureau of Prisons pursuant to the Interstate Agreement on
Detainers (IAD). See Resp. Ex. 1 at 57; see also Transcript, Resp. Ex. 1 at 86-88
(prosecutor explains that motions filed by petitioner and defense counsel did not
meet requirements of IAD).
On October 1, 2009, the trial court held a hearing on petitioner’s motions to
dismiss and, on October 7, 2009, denied the motions. Resp. Ex. 1 at 77-82. The
court first noted that the UMDDL, the statutory basis for petitioner’s motions,
applies only to persons confined in a Missouri Department of Corrections facility.
See Mo.Rev.Stat. § 217.450. Petitioner was confined in a federal facility in
Kentucky and thus was required to comply with the requirements of the Interstate
Agreement on Detainers (IAD), Mo.Rev.Stat. §§ 217.490 et seq. After setting forth
the requirements of the IAD, the court rejected petitioner’s contention that his
motion under the UMDDL substantially satisfied those requirements. Resp. Ex. 1 at
80-81; see § 217.490 (prisoner to forward request to custodial official, who must
provide a certificate setting forth the term of commitment, the time already served,
the time remaining to be served on the sentence, the amount of good time earned,
the time of parole eligibility of the prisoner, and any decisions of the state parole
agency relating to the prisoner).
2

The prosecutor sought a continuance on June 29, 2009, stating that the federal facility
would not release petitioner for transport. Resp. Ex. 1 at 56. Apparently, the facility was
quarantined due to an outbreak of H1N1 flu. See Memorandum dated July 31, 2009, Resp.
Ex. 1 at 68 (quarantine in place until August 9, 2009).

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The trial court also rejected petitioner’s argument that the delay in bringing
him to trial had violated his rights to a speedy trial under the Sixth Amendment to
the United States Constitution and Art. I, § 18(a) of the Missouri Constitution. The
court noted that the Missouri courts applied the test set forth in Barker v. Wingo,
407 U.S. 514 (1972), which requires the courts to balance four factors: (1) the
length of the delay; (2) the reasons for the delay; (3) defendant’s assertion of the
right to a speedy trial; and (4) prejudice to the defendant. The trial court rejected
petitioner’s speedy trial claims, “find[ing] it significant that defendant did not assert
his speedy trial rights until February 2009, that defendant did not want his cases
tried until the federal charge had been disposed in in August 2008, 3 and defendant
made no showing of prejudice to any potential defenses at trial due to lost
witnesses or spoliation of evidence.” Resp. Ex. 1 at 82.
On appeal, petitioner asserted that the trial court erred in denying his motion
to dismiss under the IAD “and his right to due process under the Fifth and
Fourteenth Amendments to the United States Constitution and Art. I, § 10 plaintiff
the Missouri Constitution, because the trial court was without jurisdiction” once the
180 days expired. The Missouri Court of Appeals affirmed the trial court’s denial of
petitioner’s motion to dismiss under the IAD, but did not address petitioner’s due
process claim.
Petitioner is not entitled to habeas relief on his claim under the IAD because
“[t]he rights and protections created by the IAD are statutory rights, not
fundamental or constitutional in nature.” State v. Vinson, 182 S.W.3d 709, 711
3

In June 2008, petitioner asked the court to continue his state case until after he was
sentenced in federal court. See Transcript, Resp. Ex. 1 at 94 (if federal case is disposed of
first, state sentence could be run concurrent to federal sentence; but, if state case is
disposed of first, the sentence runs consecutive to any federal sentence).

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(Mo. Ct. App. 2006). “A violation of Missouri’s speedy trial law, without more, is not
cognizable in habeas and does not justify relief under § 2254.” Poe v. Caspari, 39
F.3d 204 (8th Cir. 1994). “The question of whether the state violated its own
speedy trial statute is a matter for the state courts.” Matthews v. Lockhart, 726
F.2d 394, 396 (8th Cir. 1984). A petitioner “may not transform a state-law issue
into a federal one merely by asserting a violation of due process.” Cole v. Roper,
No. 4:10-CV-197 CEJ, 2013 WL 398755, at *2 (E.D. Mo. Feb. 1, 2013) (citing
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)). The fact that in his brief to
the Missouri Court of Appeals petitioner included a conclusory statement that the
violation of § 217.490 was also a violation of his due process rights is not enough to
transform his IAD claim into a constitutional claim appropriate for federal review.
Id. Finally, petitioner presented a Sixth Amendment speedy-trial claim to the trial
court, but he did not reassert the claim on appeal. Thus, federal review of any such
claim, if asserted here, is procedurally barred.
Grounds 3 and 4: Ineffective Assistance of Counsel
Petitioner claims that trial counsel was ineffective for failing to file a demand
for speedy trial pursuant to the IAD and for failing to request a jury instruction on
receiving stolen property.
To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must show that his attorney’s performance fell below an objective
standard of reasonableness and that he was prejudiced thereby. Strickland v.
Washington, 466 U.S. 668, 687 (1984). With respect to the first Strickland prong,
there exists a strong presumption that counsel’s conduct falls within the wide range
of professionally reasonable assistance. Id. at 689. In order to establish prejudice,
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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; see also Paulson v. Newton Corr. Facility, Warden, 773 F.3d
901, 904 (8th Cir. 2014) (citation omitted) (“Merely showing a conceivable effect is
not enough; a reasonable probability is one sufficient to undermine confidence in
the outcome.”)
“Taken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting
Cullen v. Pinholster, –––U.S. –––, 131 S. Ct. 1388, 1410 (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. Strickland, 466
U.S. at 696. . . To satisfy Strickland, the likelihood of a different result
must be “substantial, not just conceivable.” Id. Under AEDPA, [federal
courts] must then give substantial deference to the state court’s
predictive judgment. So long as the state court’s decision was not
“contrary to” clearly established 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. Harrington v. Richter, ––– U.S. –––,
131 S. Ct. 770, 792, 785 (2011). This standard was meant to be
difficult to meet, and “even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. at 786.
Id. at 831-32.
Petitioner asserts that he received ineffective assistance of counsel because
his lawyer filed a speedy trial motion under the UMDDL, rather than the IAD. He
argues that if defense counsel had filed the proper motion the trial court would
have been forced to dismiss the charges against him because he was not brought to
trial within 180 days of the demand. The state courts held that petitioner could not
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establish that he was prejudiced by counsel’s error. Petitioner’s claim is “based on
the assumption that if a proper IAD request had been made, the court and the
prosecutor would not have complied with it, and when [he] filed his motion to
dismiss, his motion would have been granted.” Vaughn v. State, Resp. Ex. 6 at 4.
The courts further found that nothing in the record supported that assumption. Id.
These determinations by the state courts are not contrary to or an unreasonable
application of Federal law and petitioner’s third ground for relief will be denied.
The jury was instructed on first-degree robbery and two lesser-included
offenses of second-degree robbery and stealing. Petitioner argues that his counsel
should have requested an additional instruction on the offense of receiving stolen
property. At the time of petitioner’s trial and appeal, Missouri state law provided
that “[t]he failure to give a different lesser-included offense instruction is neither
erroneous nor prejudicial when instructions for the greater offense and one lesserincluded offense are given and the defendant is found guilty of the greater offense.”
State v. Johnson, 284 S.W.3d 561, 575-576 (Mo. 2009)) (emphasis on original);
but see State v. Jackson, 433 S.W.3d 390, 392 (Mo. 2014) (holding that, as a
matter of statutory interpretation, trial court cannot refuse to give lesser-included
offense instruction requested by defendant “when the lesser offense consists of a
subset of the elements of the charged offense and the differential element (i.e., the
element required for the charged offense but not for the lesser offense) is one on
which the state bears the burden of proof.”) see also State v. Pierce, 433 S.W.3d
424, 430 (Mo. 2014) (companion case). Applying the rule then in effect, the
Missouri Court of Appeals held that petitioner could not establish that he was
prejudiced by counsel’s failure to request an instruction on receiving stolen
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property, because the jury was presented with instructions on two different lesserincluded offenses. 4 Resp. Ex. 6 at 6. Petitioner cannot establish that this
determination was either contrary to or an unreasonable application of established
Federal law. See also Pitts v. Lockhart, 911 F.2d 109, 112 (8th Cir. 1990) (holding
that “the failure to give a lesser included offense instruction in a noncapital case
rarely, if ever, presents a constitutional question”). Petitioner’s fourth ground for
relief will be denied.
IV.

Conclusion

For the reasons discussed above, the court concludes that petitioner
has

failed to establish that he is entitled to relief based on state court

proceedings that were contrary to, or an unreasonable application of, clearly
established federal law, or based upon an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. 28 U.S.C.
§ 2254(d). Petitioner has also failed to make a substantial showing of the denial
of a constitutional right and the court will not issue a certificate of appealability.
See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of December, 2015.

4

It is also not clear that the offense of receiving stolen property is a lesser-included offense
of first-degree robbery. See Anderson v. Luebbers, No. 4:04CV574 TIA, 2007 WL 2860061,
at *8 (E.D. Mo. Sept. 25, 2007) (comparing elements of first-degree robbery and receiving
stolen property).

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