French v. Wallace

Filing 35

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Gerrek French's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody 1 is DENIED. IT IS FURTHER ORDERED that because Petitioner cannot make a s ubstantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). A judgment dismissing this case is filed herewith. Signed by District Judge John A. Ross on 2/24/2016. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GERREK FRENCH,

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Petitioner,
vs.
IAN WALLACE,
Respondent.

Case No. 4:13-CV-472 JAR

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Gerrek French's Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus By a Person in State Custody (Doc. No. 1) The Government
responded (Doc. No. 20) and Petitioner replied (Doc. No. 32). For the following reasons,
Petitioner's Section 2254 petition is DENIED and this action is DISMISSED with prejudice.
Background

In January 2009, a jury found French guilty of one count of forcible sodomy involving
S.P. (Count X), and one count of forcible rape (Count XII), one count of forcible sodomy (XIII),
and one count of kidnapping (Count XIV) involving A.C. (Resp. Exh. Eat 43, 45-47, 64, 66-68)
The trial court sentenced French to concurrent twenty-year terms for each of the forcible sodomy
convictions and the forcible rape conviction and ten years for the kidnapping conviction, to be
served consecutively to the other sentences, for a total sentence of thirty years in the Missouri
Department of Corrections. (Id. at 78-82) The Court will address the specific facts of the case
where necessary in the analysis section.
French filed a direct appeal, raising two claims:
1. Joinder of the offenses was improper and prejudiced the outcome at trial and the trial
court abused its discretion in overruling Appellant's Motion to Sever the offenses,
resulting in the violation of Appellant's rights under Article I, Section 10 of the
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Constitution of the State of Missouri and the Fifth and Fourteenth Amendments of the
Constitution of the United States.
2. The trial court erred by denying Appellant's motion for judgment of acquittal as to the
forcible sodomy of S.P., as the evidence submitted to the jury was insufficient to
establish forcible compulsion as required to sustain a conviction of forcible sodomy.
(Resp. Exh. F) The Missouri Court of Appeals for the Eastern District affirmed the trial court's
judgment. State v. French, 308 S.W.3d 266 (Mo. Ct. App. 2010).
On July 6, 2010, French filed a Rule 29.15 motion for post-conviction relief, which was
later amended by counsel, raising two claims:
1. Trial counsel was ineffective for failing to investigate Yvette "Lavette" Lynch as a

potential witness for the defense. French claimed Ms. Lynch would have testified she was
present when the victim, A.C., said she was kidnapped and that A.C. entered his vehicle
without force.
2. Trial counsel was ineffective for failing to investigate the propriety of obtaining expert
witnesses to testify. French claimed he would produce an expert to testify that the
physical logistics of A.C. 's version of her abduction were an impossibility.
(Resp. Exh. I) On March 18, 2011, the motion court denied French's motion without an
evidentiary hearing. (Id.)
French appealed the denial, raising a single claim:
The motion court clearly erred in denying Mr. French's Rule 29.15 motion without an
evidentiary hearing because Mr. French pleaded facts, not conclusions, that the record did
not refute and which entitle him to post-conviction relief, in that Mr. French pleaded trial
counsel was ineffective for failing to investigate and call to testify Yvette "Lavette" Lynch
whose testimony would have provided a viable defense by refuting the State's evidence of
kidnapping.
(Resp. Exh. J) On May 15, 2012, the Missouri Court of Appeals affirmed the decision of the
motion court. French v. State, 390 S.W.3d 186 (Mo. Ct. App. 2012).
On March 13, 2013, French filed this § 2254 Petition raising seventeen numbered
grounds and one unnumbered ground for relief:
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1. Trial counsel was ineffective for failing to argue that being a prostitute is inconsistent
with being forcibly compelled to engage in sexual activity (Doc. No. 1 at 8, 13); for
failing to present a "motion for impeachment" regarding S.P.'s testimony that she
could not remember the date of the assault but could remember other details, such as
French's truck fut. at 8-13); and for failing to introduce a videotape from a
convenience store fut. at 9).
2. Due process was violated based on the theory that S.P.'s history as a prostitute
precludes a finding that she could be forcibly compelled to engage in sodomy. (Id. at
14-17)
3. Trial counsel was ineffective for failing to call expert witnesses to testify regarding
the "logistical impossibility" of A.C.'s statements, i.e., how French pulled her into his
truck. (Id. at 18-20; Doc. No. 1-1 at 7)
4. Trial counsel was ineffective for failing to impeach S.P. on her "contradictory"
testimony on the details of the assault. (Doc. No. 1 at 22-23)
5. Trial counsel was ineffective for failing to introduce a videotape from a Quick Trip
convenience store 1 to show A.C. was lying about what she was doing before
encountering French. (Doc. No. 1 at 28)
6. The trial court erred in ordering the jury to continue deliberations when it indicated it
was having trouble reaching a verdict. (Doc. No. 1-1at1-3)
7. Due process was violated and trial counsel was ineffective for failing to investigate or
call Yvette Lynch to testify that A.C. voluntarily entered his vehicle. (Id. at 4-6)
8. Trial counsel was ineffective for failing to object when the trial court declined to send
S.P. 's statement back to the jury during deliberations. (Id. at 8)
9. Trial counsel was ineffective for failing to request instructions on lesser-included
offenses. (Id. at 8-9)
10. Trial counsel was ineffective for failing to object at the sentencing hearing when the
State discussed earlier "false" allegations that French had previously committed
similar offenses. (Id. at 9)

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Respondent notes it is unclear whether French is referencing the same videotapes in Grounds 1and5, but
has treated them as making the same claim. (Doc. No. 20 at 16 n. 1)

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11. Due process was violated or, alternatively, trial counsel was ineffective for failing to
request that A.C. be excluded as a witness due the State's failure to produce her for a
deposition. (Id. at 9-10)
12. Trial counsel was ineffective for failing to request a continuance rather than taking
A.C.'s deposition in the middle of trial. (Id. at 10)
13. Trial counsel was ineffective in failing to impeach Sergeant John Blaskiewicz when
Sergeant Blaskiewicz misidentified the brand of French's radio. (Id. at 11)
14. Due process was violated by the loss of evidence (rape kit) or trial counsel was
ineffective for failing to impeach A.C. (Id. at 11-12)
15. Due process was violated by an illegal search of French's house (ill. at 12) and trial
counsel was ineffective for failing to call P .K. to testify about the false report used at
sentencing (id. at 13-14) and for failing to call witnesses to show his house was
illegally searched (id. at 12-13 ).
16. Trial counsel was ineffective for failing to review the 911 tape of the report of the
assault involving S.P. According to French, the trial testimony differed from the
original information given during that call by the neighbor. (Id. at 14)
17. Equal protection rights were violated when French was sentenced to thirty years when
his victims were not convicted of prostitution. (Id. at 15-16)
In an unnumbered ground, French claims his due process rights were violated when
Alicia Hall was allowed to testify even though she had observed part of the trial
proceedings. (Id. at 14-15)

Standard of review
Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a). "[I]n a§ 2254 habeas corpus proceeding, a federal court's review of
alleged due process violations stemming from a state court conviction is narrow." Anderson v.
Goeke, 44 F .3d 675, 679 (8th Cir. 1995). "[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
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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)." 'A state court's decision
is contrary to ... clearly established law if it applies a rule that contradicts the governing law set
forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable
from a [Supreme Court] decision ... and nevertheless arrives at a [different] result.' " Cagle v.
Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16
(2003)). The Supreme Court has emphasized the phrase "Federal law, as determined by the
Supreme Court," refers to "the holdings, as opposed to the dicta, of this Court's decisions," and has
cautioned that§ 2254( d)(l) "restricts the source of clearly established law to [the Supreme] Court's
jurisprudence." Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court "unreasonably
applies" federal law when it "identifies the correct governing legal rule from [the Supreme] Court's
cases but unreasonably applies it to the facts of the particular state prisoner's case," or
"unreasonably extends a legal principle from [the Supreme Court's] 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 407. A State court decision may be considered an unreasonable determination
"only if it is shown that the state court's presumptively correct factual findings do not enjoy
support in the record." Ryan v. Clarke, 387 F.3d 785, 791 (8th Cir. 2004) (citing 28 U.S.C. §
2254(e)(l)). A state court's factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(l);
Wood v. Allen 558 U.S. 290 (2010). Review under§ 2254(d)(l) is limited to the record before the
state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

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Clear and convincing evidence that state court factual findings lack evidentiary support is required
to grant habeas relief. 28 U.S.C. § 2254(e)(l); Wood. 558 U.S. at 293.
Procedural default

To preserve issues for federal habeas review, a state prisoner must fairly present his or her
claims to state courts during direct appeal or in post-conviction proceedings to give the state courts
a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v.
Iowa, 322F.3d1018, 1020-21 (8th Cir. 2003); Sweetv. Delo. 125F.3d1144, 1149 (8th Cir. 1997);
see also 28 U.S.C. § 2254(c). 2 A claim has been fairly presented when a petitioner has properly
raised the same factual grounds and legal theories in the state courts that he is attempting to raise in
his federal petition. Wemark, 322 F.3d at 1021. Claims that have not been fairly presented to the
state courts are procedurally defaulted. Id at 1022 (quoting Gray v. Netherland 518 U.S. 152,
161-62 (1996)).
Claims that have been procedurally defaulted may not give rise to federal habeas relief
unless the petitioner can demonstrate cause and prejudice for the default, or a fundamental
miscarriage of justice. Jones v. Wallace, No. 4:12 CV 891 JMB, 2015 WL 4599562, at *6 (citing
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72 (1977)).
"[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded counsel's efforts to comply with
the State's procedural rule." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). If a
petitioner has not previously presented the substance of a habeas claim and has no available
procedure for doing so because he has defaulted with respect to legitimate state requirements,
2

The Supreme Court has held that § 2254(c) "requires only that state prisoners give state courts a fair
opportunity to act on their claims." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To meet the
requirement, "state prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established appellate review process." Id.

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federal courts are barred from considering such a ground for habeas relief. Grass v. Reitz. 643 F .3d
579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001).
In Grounds 1, 3, 4, 5, part of Ground 7, Grounds 8-10, part of Ground 11, Grounds 12 and
13, part of Grounds 14 and 15, and Ground 16, French claims his trial counsel was ineffective for
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failing to take various actions. In Missouri, claims of ineffective assistance of trial counsel must
be raised in a motion for post-conviction relief pursuant to Rule 29.15. See Shigemura v. Groose,
45 F.3d 250, 251 (8th Cir. 1995) (internal citations omitted). To preserve those claims for federal
habeas review, the petitioner must also raise them on appeal from the denial of the post-conviction
motion. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (citing Gilmore v. Armontrout, 861 F.2d
1061, 1065 (8th Cir. 1988) ("Failure to raise a claim on appeal from the denial of a post-conviction
motions erects a procedural bar to federal habeas review.").
A review of the record demonstrates that with the exception of that part of Ground 7
concerning the testimony of Ms. Lynch, French failed to raise the ineffective assistance claims he
attempts to raise in Grounds 1, 3, 4, 5, 8-10, part of Ground 11, Grounds 12 and 13, part of
Grounds 14 and 15, and Ground 16 in his amended Rule 29.15 motion, nor did he raise them on
appeal from the denial of that motion. Because French failed to raise these claims in any state court
proceeding, he is procedurally barred from pursuing them here. Coleman, 501 U.S. at 731-32;
Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.
1995); Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994). The Court cannot therefore reach the
merits of the claims absent a showing of cause and prejudice, or a demonstration "that failure to
consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

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3

In Grounds 7, 11, 14 and 15, French raises both an ineffective assistance ofcounsel claim and a claim for
violation of his rights to due process.
4

French has not shown that a fundamental miscarriage of justice will result if his defaulted claims are not
considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (petitioner must present new evidence

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French attempts to establish cause for the default by arguing that his post-conviction
counsel failed to raise these claims before the motion court. (Doc. No. 32 at 11-14) Nevertheless,
after a complete and thorough review of the State court file, the Court finds French fails to
establish that post-conviction counsel's failure to present the underlying ineffective assistance of
trial counsel claims in his amended motion rises to the level of ineffective assistance of counsel, or
that the claims have merit. Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012) (holding that petitioner
must make a showing that post-conviction counsel was ineffective under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984), and must demonstrate that the underlying claim
has merit). Consequently, French fails to establish cause for the procedural default of his
underlying ineffective assistance of trial counsel claims. Accordingly, Grounds 1, 3, 4, 5, part of
Ground 7, Grounds 8-10, part of Ground 11, Grounds 12 and 13, part of Grounds 14 and 15, and
Ground 16 shall be dismissed as procedurally barred.
In Grounds 2, 6, the remaining portion of Grounds 11 and 14, 17, and an unnumbered
Ground, 5 French claims he was denied due process of law and/or equal protection at trial. French
did not raise these claims on direct appeal. The failure to raise constitutional claims of trial error on
direct appeal precludes review of such claims in any further state court proceeding and thus results
in a procedural default in the absence ofrare and exceptional circumstances. Stallings v. State, 784
S.W.2d 862, 863 (Mo. Ct. App.1990); see also Jolly, 28 F.3d at 53; Kennedy v. Delo, 959 F.2d 112
(8th Cir. 1992). French has neither asserted nor shown cause for or prejudice as a result of his
failure to properly pursue these claims in state court. Accordingly, Grounds 2, 6, the remaining
portions of Grounds 11 and 14, 17, and an unnumbered Ground shall be dismissed as procedurally

that affirmatively demonstrates he is actually innocent of the crime for which he was convicted in order to
fit within the fundamental miscarriage of justice exception).
5

Again, in Grounds 11 and 14, French raised both an ineffective assistance claim and a claim for violation
of his rights to due process.

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barred.
Partial ground 7

Only part of Ground 7 was properly exhausted in state court. There, French asserts his trial
counsel was ineffective for failing to investigate or call Yvette Lynch to testify that A.C. entered
his vehicle voluntarily and without force. (Doc. No. 1-1 at 6)
At trial, A.C. testified that on September 21, she was walking on the street when French
pulled up beside her in his pickup truck. (Resp. Exh. A at 358-60) After some conversation, French
grabbed A.C. and pulled her into his truck.@.) On cross-examination, A.C. admitted that shortly
before French pulled up, she had been talking with a friend, but the friend was no longer there
when French pulled A.C. into his truck. (!Q. at 382, 387) Detective Blaskiewicz testified that he
located a witness at the scene who saw A.C. "disappear" into the truck. (Id. at 499-501) The
witness did not explain how A.C. got into the truck. (!Q. at 501)
In his traverse, French provides a portion of the police report detailing Detective
Blaskiewicz's interview with Ms. Lynch on September 25, 2006. (Doc. No. 32 at 12) According to
the report, Ms. Lynch stated that on the evening of September 21, 2006, she was standing on the
sidewalk in front of her sister's house when she observed A.C. walking north on Chippewa on the
opposite side of the street. A black male with dreadlocks, occupying a maroon or burgundy color
truck or sport utility vehicle, approached A.C. Ms. Lynch stated she looked up and suddenly A.C.
"disappeared." Ms. Lynch explained she did not know what exactly happened to A.C. at that point.
French's traverse does not serve to modify or expand the scope of Ground 7. See Rule
2(c)(1) of the Rules Governing Section 2254 Cases (providing that all grounds for relief must be
contained in the petition). In any event, the Court has considered it and finds French's argument
lacks merit. If Ms. Lynch had been called and testified as French claims she would have, i.e., that
A.C. entered his vehicle voluntarily, then she would have been impeached based on the

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inconsistency with her interview statements. On the other hand, had Ms. Lynch testified
consistently with her statements given to the police, her testimony would have been harmful to
French's defense. Either way, her testimony would not have affected the outcome of the trial.
Therefore, French's claim fails on the merits.
Further, as noted by the motion court, the scope of a competent investigation depends in
large part on the information available to trial counsel. See Strickland 466 U.S. at 691. While
French argues that counsel could have and should have conducted additional investigation, he does
not allege any facts that would have led counsel to believe she needed to interview Ms. Lynch as
part of the investigation. Indeed, at sentencing, French was asked if there were any witnesses that
he wanted counsel to call on his behalf that she did not call and he responded, "no." (Resp. Exh. D
at 21 :25-22:2; 22: 11-13) French stated under oath that counsel did everything he asked, answered
all of his questions, and put forth a defense as he requested. In addition, French said he was
satisfied with counsel's investigation of the case from the information he provided. (Resp. Exh. I at
47-48) Based on French's statements at sentencing, the state court reasonably found the record
refuted his conclusory allegations and the Missouri Court of Appeals summarily affirmed. (Resp.
Exh. L)
Conclusion

After careful consideration, French's federal habeas petition will be dismissed because all
of his grounds are procedurally barred, with the exception of part of Ground 7, which lacks merit.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Gerrek French's Petition under 28 U.S.C. §

2254 for Writ of Habeas Corpus By a Person in State Custody [1] is DENIED.
IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing

of the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28
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U.S.C. § 2253(c)(2); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834
(1998).
A judgment dismissing this case is filed herewith.

-t-L

Dated

thi~ daY of February, 2016.

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