Thompson v. Russell

Filing 18

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that the Report and Recommendation filed on January 21, 2016 [ECF No. 14 ] is incorporated herein, and is SUSTAINED AND ADOPTED. IT IS FURTHER ORDERED Petitioners Response to U.S. Magistra te Judge Recommendations why the Writ of Habeas Corpus Should be Granted, and the objections inferred therein is specifically overruled. IT IS FURTHER ORDERED that the Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [ECF No. 1 ] is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge E. Richard Webber on 3/17/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FOSTER THOMPSON,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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No. 4:13CV00470 ERW/ACL

MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation of United States
Magistrate Judge Abbie Crites-Leoni [ECF No. 14], pursuant to 28 U.S.C. § 636(b)(1),
recommending the denial of Petitioner Foster Thompson’s Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254. [ECF No. 1]. Defendant filed timely objections to the Report and
Recommendation, [ECF No. 17] after filing a motion for extension of time to file. [ECF No. 15].
I.

BACKGROUND
On July 15, 2009, Petitioner was found guilty by a jury of one count of forcible rape, and

one count of incest, in the Circuit Court of the City of Saint Louis. See State v. Thompson, Cause
No. 0822-CR03467-01 (22nd Judicial Circuit); [ECF No. 10 Ex. 1]. Petitioner was sentenced on
August 21, 2009 to a term of imprisonment of twenty five years for the forcible rape count, and a
term of imprisonment of four years for the incest count, with the Court ordering the sentences to
run concurrently. [ECF No. 10 Ex. 1 at 312-313].
Petitioner filed a direct appeal of his conviction with the Missouri Court of Appeals of
the Eastern District. [ECF No. 10 at Ex. 2]. On appeal he argued the trial court erred by
sustaining the state’s objections to his counsel’s opening statement, where trail counsel alleged

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the evidence to be shown at trial indicated the victim’s own family did not believe her rape
allegation; and the trial court erred in sustaining an objection during cross examination of the
victim, preventing the Petitioner’s counsel from asking if her family believed her rape allegation.
State v. Thompson, 330 S.W.3d 869, 870 (Mo. Ct. App. 2011); [ECF No. 10 Ex. 2].
Petitioner then filed a pro se Rule 29.15 motion making multiple claims, and after being
appointed counsel filed an amended motion where the only claim for relief was ineffective
assistance of trial counsel for failing to properly present Petitioner’s medical records showing he
had been treated for gonorrhea in March 2008. [ECF No. 10 Ex. 4]. The motion court denied
relief without an evidentiary hearing, entering findings of facts and conclusions of law on only
the claims in the amended motion. [ECF No. 10 Ex. 4]. The Missouri Court of Appeals affirmed
the Motion Court’s ruling on appeal. Thompson v. State, 369 S.W.3d 86 (Mo. Ct. App. 2012);
[ECF No. 10 Ex. 6].
Petitioner filed the instant habeas corpus motion pro se, with five separate grounds for
relief. [ECF No. 1]. The State in its response rephrased petitioner’s arguments to show there
were only four grounds for relief, as the initial grounds two and three both alleged the same
violation of law. [ECF No. 10]. Petitioner’s traverse disputes the aggregation of grounds two
and three, but made additional arguments adopting the State’s numbering of his grounds. [ECF
No. 11]. 1 The Report and Recommendation denies each of Petitioner’s grounds for relief. [ECF
No. 14].
Ground One argued the trial court, and the appellate court, in affirming his conviction,
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The Court notes for purposes of clarification it will follow the Report and Recommendation in
determining there are four grounds for relief. Petitioner in his initial writ lists five different
grounds for relief, and the State’s response to Petitioner indicates Petitioner’s initial grounds two
and three are for the same claim and treated them as such. The Petitioner’s traverse rejected this
claim, but argued with the State’s framework of only four grounds for relief. The Magistrate
also ruled on only four grounds for relief, and this Court will follow that format.
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violated his rights to due process, denied him a fair trial, denied him the right to present a
defense, and denied him the right to confront his accuser, when the trial court sustained an
objection to his counsel’s opening statement. [ECF No. 1 at 16]. Ground Two argued the trial
court, and the appellate court, in affirming his conviction, violated his right of confrontation and
right to a fair trial when the trial court sustained an objection during his counsel’s cross
examination of the victim. Id. at 16-17. Ground Three argued the motion court, and the appellate
court in affirming the ruling, erred in denying relief without an evidentiary hearing for failing to
make findings of facts and conclusions of law for each of Petitioner’s pro se claims, after
Petitioner’s counsel filed an amended motion. Id. at 17. Petitioner in Ground Four argued he
received ineffective assistance of trial counsel, when trial counsel failed to present medical
records and testimony regarding his diagnosis and treatment of gonorrhea, prior to the time of the
rape, and failed to secure medical testimony showing the high likelihood of transmission in cases
of intercourse. Id. at 18.
Petitioner, in response to the Report and Recommendation, filed an “argument in lieu of
support as to why this writ should be granted”, and medical records, regarding Petitioner’s
diagnoses of gonorrhea on March 27, 2008, which were previously filed with the Rule 29.15
Motion Court. [ECF No. 17]. Petitioner’s response makes two arguments in his response. He
argues the Missouri Court of Appeals should have reversed and remanded the Motion Court’s
decision for failure to make findings of facts and conclusions of law with respect to each of his
pro se claims, after he filed an amended motion with counsel. He next argues he received
ineffective assistance of trial counsel, primarily when trial counsel failed to present his medical
records showing his diagnosis and treatment for gonorrhea. The Court notes these are not
objections, and not styled as such; however, the Court interprets his arguments as objections to

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Grounds Three and Four, in order to give effect to his arguments. [ECF No. 17 at 11-12].
II.

STANDARD
When a party objects to a Report and Recommendation, the court must “make a de novo

review determination of those portions of the record or specified proposed findings to which
objection is made.” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28
U.S.C. § 636(b)(1)).
“A state prisoner who believes that he is incarcerated in violation of the Constitution or
laws of the United States may file a petition for writ of habeas corpus in federal court pursuant to
28 U.S.C. § 2254 (2000).” Osborne v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005), as amended
(June 21, 2005). In order for a federal court to grant an application for a writ of habeas corpus
brought by a person in custody by order of a state court, the petitioner must show the state court
decision:
“(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. State court decisions are contrary to federal law if “the state court either
‘applies a rule that contradicts the governing law set forth in our cases,’ or ‘confronts a set of
facts that are materially indistinguishable from a decision of this Court and nevertheless arrives
at a result different from our precedent.’” Penry v. Johnson, 532 U.S. 782, 792 (2001) quoting
Williams v. Taylor, 529 U.S. 362, 404-05 (2000). An unreasonable application of precedent is
found where the state court uses the correct governing legal principle, but unreasonably applies
the principle to the facts of the case. Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
Therefore a federal court making an “unreasonable application” inquiry, should determine

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whether the state court’s interpretation was objectively reasonable, and although the Supreme
Court has not defined “objectively reasonable”, it should be noted that “an unreasonable
application of federal law is different from an incorrect application of federal law.” Williams,
529 U.S. at 410.
III.

DISCUSSION
Petitioner’s response to the Magistrate Judge’s Report and Recommendation, does not

make arguments on each of his five grounds for relief, rather focuses his arguments on the claims
made in Grounds Three and Four. The Court address Grounds One and Two as part of its de
novo review of the Report and Recommendation, but as Petitioner’s response to the Report and
Recommendation does not address Grounds One and Two, the Court is unable to address any
arguments.. In an objection to Ground Three, Petitioner argues the Court of Appeals should have
reversed the Rule 29.15 Motion Court’s decision because the motion court did not make findings
of facts and conclusions of law on all of the issues presented in the Petitioner’s pro se motion,
after the petitioner filed an amended Rule 29.15 motion through counsel. In his objection to
Ground Four, he argues Petitioner’s trial counsel was ineffective for failing to fully investigate
and present evidence of Petitioner’s medical records showing his diagnosis of gonorrhea after the
rape, or to talk to alibi witnesses, or evaluate the scene of the crime. [ECF No. 17 at 11-13].
a. The Court agrees with and adopts the Magistrate Judge’s Report and
Recommendation denying relief on Ground One regarding alleged error in sustaining
the State’s objection to defense counsel’s comment during opening statement that the
victim’s family did not believe she was raped
The Missouri Court of Appeals recognized the comment members of victim’s family
stated they did not believe she was raped would have been inadmissible hearsay, and accordingly
the trial court did not abuse its discretion in sustaining the State’s objection to counsel’s
comment in defense counsel’s opening statement. The Report and Recommendation concluded
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an evidentiary ruling by the trial court, even if incorrect, which it does not appear it was
incorrect, does not entitle Petitioner to relief unless the evidentiary ruling infringed on a specific
constitutional right or violated due process by infecting the entire trial. Estelle v. McGuire, 502
U.S. 62, 72 (1991).
The Report and Recommendation is sound in this point. The state courts’ decisions were
not contrary to or did not involve an unreasonable application of clearly established federal law,
as established by the Supreme Court, or did not result in a determination that was based on an
unreasonable determination of the facts in light of the evidence presented at state court
proceedings. Petitioner’s Ground One will be denied.
b. The Court agrees with and adopts the Magistrate Judge’s Report and
Recommendation denying relief on Ground Two regarding alleged error in sustaining
the State’s objection to sustaining the state’s objection during cross examination
where counsel asked the victim if her family believed she was raped
Petitioner argues the trial court and court of appeals violated his right to a fair trial by
disallowing him to confront his accuser, and violated his due process rights when it sustained the
State’s objection during cross examination of the victim on the views of family members
concerning whether a rape offense occurred. Both the trial and appellate courts ruled correctly in
concluding decisions on admission of evidence are reviewed for abuse of discretion, State v.
Speaks, 298 S.W.3d 70, 80-81 (Mo. App. E.D 2009), and even if evidence was erroneously
excluded such error is not grounds for reversal unless such exclusions prejudice the Defendant.
The evidence defendant found beneficial was inadmissible hearsay. The state courts’ decisions
were not contrary to or did not involve an unreasonable application of clearly established federal
law, as established by the Supreme Court, or did not result in a determination that was based on
an unreasonable determination of the facts in light of the evidence presented at state court
proceedings. Petitioner’s Ground Two will be denied.
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c. Petitioner’s objection to Ground Three of the Report and Recommendation claiming
the Motion Court, and the Missouri Court of Appeals in affirming the ruling, erred
for failing to make findings of facts and conclusions of law on all of Petitioner’s pro
se claims
Petitioner’s objection to Ground Three of the Magistrate Judge’s Report and
Recommendation comes from an argument where he cites “Fields v. State (1971) 2” and “Warren
v. State (1971),” to show that in those cases the “Court of appeals Reversed the Trial Court’s
decision mainly because the trial Court did not make a ‘FINDINGS OF FACTS AND
CONCLUSIONS OF LAW ON ALL ISSUES PRESENTED TO THE PRESDING JUDGE!’”
[ECF NO. 17 at 11]. The Court construes Petitioner’s argument as an objection to the Report
and Recommendation on Ground Three denying Petitioner’s Writ of Habeas Corpus, where
petitioner alleged the motion court, and the appellate court in affirming, erred in denying relief
without an evidentiary hearing and without making findings of facts and conclusions of law with
respect to all of his pro se claims.
The Report and Recommendation determined Petitioner procedurally defaulted on this
claim by failing to raise it in his appeal from the denial of post-conviction relief; but, even if the
claim was not procedurally barred, alleged errors in the state post-conviction proceeding do not
amount to errors of constitutional magnitude and are thus not cognizable for relief in the federal
court habeas proceedings. [ECF No. 14 at 11]. This Court agrees with the Report and
Recommendation, and further determines the claim was procedurally barred, but irrespective
there was no error of constitutional magnitude, and the motion court did not err in failing to

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The Court notes despite a thorough search it is unable to find a case entitled “Fields v. State”
published in 1971 which supports Petitioner’s contention. The Court found cases entitled “Fields
v. State”, but could not find a single opinion which stood for the point petitioner wishes to
address. It is more likely the Petitioner wished to cite Fields v. State, 572 S.W.2d 477, 483 (Mo.
1978), as this case addresses petitioner’s argument. Further, the Court also reviewed, Warren v.
State, 473 S.W.2d 427 (Mo. 1971), which the petitioner also uses in support.
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make findings of fact or conclusions of law.
A procedural bar occurs when a habeas petitioner fails to meet state procedural
requirements for presenting federal claims, thus depriving federal courts an opportunity to
address those claims. “[A] habeas petitioner who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived the state courts of an opportunity to
address those claims in the first instance.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000)
(citing Coleman v. Thompson, 501 U.S. 722, 730 (1991)). Claims are properly presented in
federal court when a petitioner raises the necessary factual and legal arguments necessary to
properly present their claim in front of the state courts attempting to resolve the question.
Baldwin v. Reese, 541 U.S. 27, 29, (2004). Therefore, a prisoner must demonstrate cause for a
state-court default before any federal claim can go forward. Id. There must be a resulting
prejudice before a federal habeas court will hear the merits of such a claim. Id. This doctrine is
based on concerns of comity and federalism. Coleman, 501 U.S. at 722.
“A prisoner may obtain federal review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law.” Martinez v. Ryan, 132 S. Ct. 1309, 1316,
(2012) citing Coleman, 501 U.S. at 750. Cause for a procedural default requires a petitioner to
show “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). If a petitioner cannot
show cause, then the Court need not address whether petitioner has been prejudiced by the
alleged constitutional violations. Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir. 1987).
Petitioner makes two arguments, which could be used to overcome cause for procedural
default: actual innocence and breaches of duty owed to him by all of his counsel. [ECF No. 17 at
11-12]. The Court interprets these arguments as assigned reasons to overcome cause for

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procedural default. To show such cause with a claim of actual innocence the petitioner must
“support his allegations of constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioners who
assert actual innocence as a gateway to defaulted claims, must meet a standard, “it is more likely
than not that ‘no reasonable juror’ would have convicted [the Petitioner], McQuiggin v. Perkins,
133 S. Ct. 1924, 1927 (2013) (quoting Schlup, 513 U.S. at 329).
The Court agrees with the Magistrate Judge’s well-reasoned Report in Recommendation
in denying relief for Petitioner on this Ground. Neither in his initial petition for a writ of habeas
corpus, nor in his traverse, does Petitioner present supporting evidence, and as such, the
magistrate properly denied his claim. [ECF No. 14 at 8]. In Petitioner’s objections to the Court,
Petitioner presents ten pages of medical records regarding his diagnosis and treatment of
gonorrhea, on March 27, 2008. [ECF No. 17 at 14-24]. Petitioner previously submitted these
records in the Rule 29.15 trial court proceeding, as part of his amended motion for relief. [ECF
No. 10 Ex. 4]. Petitioner failed to present any evidence, expert testimony or any support for his
novel exoneration theory. See Murr v. United States, 200 F.3d 895, 902 (6th Cir. 2000) (citing
cases explaining claims are procedurally barred when bringing them for the first time as an
objection to the Report and Recommendation absent compelling circumstances).
Petitioner also seeks to find cause for his procedural default, by alleging his initial postconviction counsel was ineffective. [ECF No. 17 at 11]. Under Martinez, initial post-conviction
counsel ineffectiveness can be cause to qualify for procedural default. Martinez, 132 S.Ct. at
1316. Martinez, however explicitly states it, “does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings, second or successive

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collateral proceedings, and petitions for discretionary review in a State's appellate courts.”
Martinez, 132 S. Ct. at 1320. Most importantly, Petitioner in his objection does not contend
there was a specific instance in where his post-conviction counsel was ineffective, instead
focusing on the alleged errors of trial counsel. [ECF No. 17 at 11-12].
The Report and Recommendation also denied relief because state procedural errors are
not errors of constitutional magnitude, and thus do entitle petitioner to relief. See Jolly v.
Gammon, 28 F.3d 51, 54 (8th Cir. 1994) (citing Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th
Cir.1990)). In addition, even if the Court chose to address this issue on the merits, Petitioner’s
claim would still fail, as an amended petition was filed by initial post-conviction counsel and the
motion court made findings of facts on all issues presented in the amended motion. [ECF No. 10
at Ex 4]. Petitioner cites Fields v. State, 572 S.W.2d 477, 483 (Mo. 1978), and Warren v. State,
473 S.W.2d 427 (Mo. 1971), for the proposition a Court must make findings of facts on all issues
presented in the amended motion. However, some common sense exceptions to this rule are
allowed. See White v. State, 939 S.W.2d 887, 903 (Mo. 1997) (recognizing there are common
sense exceptions to the general rule that Rule 29.15 requires findings of fact and conclusions of
law on every issue). It is common sense, that when the amended motion was filed it mooted the
initial motion, and therefore excepts the Court’s requirement of making finding of facts and
conclusions of law for a motion not even before the Court. For all the reasons presented, the
Court adopts the Report and Recommendation of the Magistrate Judge, and overrules
Petitioner’s objection on this issue.
d. Petitioner’s objection to Ground Four of the Report and Recommendation claiming
the Motion Court, and the Missouri Court of Appeals in affirming the ruling, erred
for failing to find he received ineffective assistance of counsel
Petitioner also argues he received ineffective assistance of trial counsel, which the Court

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styles as an objection to the Magistrate Judge’s ruling on Ground Four. Petitioner alleges he
received ineffective assistance of counsel when trial counsel failed to present his medical records
showing his diagnosis and treatment for gonorrhea during the time of the rape, failed to secure
and present medical testimony showing the high likelihood of transmission of the disease during
intercourse, fully investigate his claims, prepare a defense, talk to alibi witnesses, and evaluate
the crime scene. [ECF No. 17 at 11-12]. The Court finds Petitioner’s objection to Ground Four
has no merit.
A petitioner claiming ineffective assistance of counsel must show: (1) his counsel’s
performance was deficient, falling below an objective standard of reasonableness; and (2) there
is a reasonable probability if not for the deficient performance the result at trial would have been
different. Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong of this test is met,
where a petitioner identifies specific instances where counsel’s performance was deficient. Id. at
690.
Deficient performance can be demonstrated where “counsel’s representation fell below
an objective standard of reasonableness.” Strickland, 466 U.S. at 688. The reasonableness of
counsel’s representation is measured “under prevailing professional norms.” Rompilla v. Beard,
545 U.S. 374, 380 (2005). “That standard is necessarily a general one. ‘No particular set of
detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances
faced by defense counsel or the range of legitimate decisions regarding how best to represent a
criminal defendant.’” Bobby v. Van Hook, 558 U.S. 4, 7 (2009). All the facts in a particular case
are taken into account in determining whether counsel acted reasonably. Marcrum v. Luebbers,
509 F.3d 489, 502 (8th Cir. 2007). There is a strong presumption counsel’s conduct is within the
constitutional range of reasonableness. Strickland, 466 U.S. at 689.
Counsel’s deficient performance is prejudicial when “there is a reasonable probability, that is,

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one ‘sufficient to undermine confidence in the outcome,’ that the result would have been different
but for the deficiency.” Close v. United States, 679 F.3d 714, 716 (8th Cir. 2012).

The Report and Recommendation denied Ground Four of the Petitioner’s writ of habeas
corpus, finding introduction of medical records into the case does not provide a good defense,
and even if counsel’s performance was deficient, the failure to introduce medical records was not
prejudicial, considering the other evidence in the case. [ECF No. 14 at 14]. The Court agrees
with the Report and Recommendation and determines the medical records alone, do not provide
a good defense, and Petitioner’s trial counsel did not provide ineffective assistance of counsel, as
Petitioner was not prejudice by her performance.
Defendant attempts to compare his case to Garton v. Swenson, 417 F. Supp. 697 (W.D.
Mo. 1976), where a defendant received ineffective assistance of counsel when defense counsel
failed to subpoena an alibi witness, when defense counsel was unaware of the subpoena statute
for out of state witnesses, and the witness was not subpoenaed. The record indicates the failure to
do so was not a tactical choice, and in fact the defense was premised on the existence of alibi
witnesses. Id. at 701-705.
Thompson’s medical records indicate he was diagnosed with gonorrhea on March 27,
2008, and he had symptoms of gonorrhea for three days prior. [ECF No. 17 at 17]. The rape
occurred on March 10, 2008, more than two weeks prior to seeking treatment. [ECF No. 10 Ex. 1
at 178-195]. Petitioner testified during re-direct and re-cross on the issue of gonorrhea:
[Defense counsel]: Now, when you came home from being in jail, did you have a
medical problem?
[Thompson]: No, ma’am—oh, yes, ma’am, I apologize. Not at this particular hour,
but I had gonorrhea like—I caught gonorrhea from a female friend of mine. Her name
is [ ]. She had g[iven] me gonorrhea, so I did have a medical problem.
[Defense counsel]:
March of 2008?

Did you have gonorrhea in the early part of
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[Thompson]: Yes, ma’am.
***
[Prosecutor]:

Did they give you antibiotics at MSI?

[Thompson]:

No, I caught the disease when I got out of MSI.

[Prosecutor]:

When you got out of MSI?

[Thompson]: Yes, ma’am.
[Prosecutor]:

And you had just gotten out on February 25th of 2008, right?

[Thompson]: Yes, ma’am.
[Prosecutor]:

So by March 10th, you already had full-blown gonorrhea?

[Thompson]: Yes, ma’am.
[Prosecutor]:

Why is March 10th a significant date for you if nothing happened?

[Thompson]:

What do you mean?

[Prosecutor]: How do you know you had gonorrhea on March 10th if nothing happened
on March 10th?
[Thompson]:

Because I already knew I had gonorrhea because I was in the clinic for it.

[Prosecutor]:

Did you bring your medical records?

[Thompson]: No, ma’am.”
[ECF No. 10 Ex. 1 at 272-274]. However, Petitioner’s own medical records impeach his
credibility because he was not in the clinic until March 27, 2008, and the medical records show
he reported symptoms only three days prior to his visit to the clinic, a full two weeks after the
rape. [ECF No. 17 at 17]. This is in direct contrast to his testimony that he had full-blown
gonorrhea, and he was already in the clinic for complaining of gonorrhea on March 10th. [ECF
No. 10 Ex. 1 at 272-274]. Petitioner is unable to present any prejudice because his medical
records do not show what he attempts to prove, in that he was receiving treatment for gonorrhea
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at the time of the rape on March 10, 2008. This does not undermine the credibility of the
proceedings, nor does it show the result would have been different but for the prejudice. See
Close, 679 F.3d at 716. Therefore, the Court agrees with the Magistrate’s opinion Petitioner’s
claim does not entitle him to habeas relief.
Further to the extent Petitioner attempts to use Garton to support a claim of ineffective
assistance of counsel for failing to call his alibi witnesses, this case can be easily distinguished.
Garton, 417 F. Supp. 697. In Garton, prejudicial error was found to exist because the defense
strategy rested on having an alibi witness, to prove defendant’s presence was at the actual time
the crime occurred. Here, Petitioner proposes he could call an alibi witness, to testify three days
before the alleged rape, there were two additional people walking home with him and the victim
after church. [ECF No. 10 Ex. 4]. Even if Petitioner, were to prove this claim, this again is not
prejudicial to defendant, as it does not undermine the credibility of the proceedings, and in light
of all of the evidence, does not suggest the result would have been different. See Close, 679 F.3d
at 716.
The Court adopts the Report and Recommendation of the Magistrate Judge, and overrules
Petitioner’s objection on this issue.
IV. Certificate of Appealability
A certificate of appealability may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 481, 120 S. Ct. 1595, 1602, 146 L. Ed. 2d 542 (2000). “A substantial showing is a
showing that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). Petitioner has not presented arguments which would inspire debates among reasonable

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jurists, and therefore no certificate of appealability will be issued.
IT IS HEREBY ORDERED that the Report and Recommendation filed on January 21,
2016 [ECF No. 14] is incorporated herein, and is SUSTAINED AND ADOPTED.
IT IS FURTHER ORDERED Petitioner’s Response to U.S. Magistrate Judge
Recommendations why the Writ of Habeas Corpus Should be Granted, and the objections
inferred therein is specifically overruled.
IT IS FURTHER ORDERED that the Petitioner’s Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody [ECF No. 1] is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
So Ordered this 17th Day of March, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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