Minner v. Denney
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no Certificate of Appeala bility shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. IT IS FURTHER ORDERED that the Clerk shall substitute Dean Minor as respondent in this action. A separate Judgment shall accompany this Memorandum and Order.. Signed by Magistrate Judge Shirley P. Mensah on 8/13/14. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LESTER ALPHONSO MINNER,
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. No. 13). After reviewing the
case, the Court has determined that Petitioner is not entitled to relief. As a result, the petition
will be dismissed.
On November 30, 2009, a jury found Petitioner guilty of first-degree assault and armed
criminal action. (Resp’t. Ex. B at 35). On January 7, 2010, a judge in the Circuit Court of St.
Louis County, Missouri, sentenced Plaintiff to two 15-year sentences to run concurrently. (Id. at
35-37). The Missouri Court of Appeals affirmed Petitioner’s conviction. (Resp’t Ex. E at 4-5).
On December 23, 2010, Petitioner filed a motion for post-conviction relief under Missouri Rule
29.15, which was subsequently amended by appointed counsel and denied by the trial court after
Petitioner is incarcerated at Moberly Correctional Center (“MCC”). When petitioner filed this
action, Larry Denney was the Warden at MCC. Dean Minor is the current Warden at MCC.
Consequently, the Court will direct the Clerk to substitute Dean Minor as the respondent in this
a hearing. (Resp’t Ex. G at 3-9, 14-25, 32-37). On September 11, 2013, the Missouri Court of
Appeals affirmed the decision of the trial court. (Resp’t Ex. J).
On April 9, 2013, Petitioner filed the instant petition before this Court, and he filed an
Amended Petition on August 12, 2013. (Doc. Nos. 1 & 16). In his Amended Petition, he raised
two grounds of relief: (1) that he was denied his right to due process under the U.S. and Missouri
Constitutions; and (2) that he was denied effective counsel because his trial counsel failed to
request that the trial court submit an instruction on the lesser-included offense of second-degree
assault. (Doc. No. 16 at 5-7). After Respondent filed a motion for more definite statement as to
the first ground, Petitioner voluntarily moved to dismiss the first ground, and the Court granted
Petitioner’s motion. (Doc. Nos. 17-19). Thus, only Petitioner’s second ground of relief is
currently before the Court. Respondent argues that this claim is without merit.
The Missouri Court of Appeals set forth the factual background of Petitioner’s case as
The State charged [Petitioner] as a prior offender with first-degree assault and
armed criminal action. The evidence presented at trial, viewed in the light most
favorable to the verdict, is as follows:
On December 7, 2007, DeAndra Pointer (Pointer) was talking to a friend outside a
deli in Riverview. The deli was located between an apartment complex and a fire
department. While Pointer and his friend were talking, several other people were
nearby, including two women, several firefighters, and two children aged four and
At one point, Pointer turned around and saw [Petitioner], one of his neighbors,
standing on the opposite side of the street trying to load a gun. [Petitioner] raised
the gun and aimed it at Pointer. Pointer and his friend both started to run away. As
he was running, Pointer grabbed the two children, ran between some cars, and
told the children to stay down. Pointer looked up after hearing a gunshot, saw
[Petitioner] coming toward him, and started to run again. [Petitioner] fired the gun
again and Pointer turned around to see [Petitioner] stopping to take aim at him.
Pointer heard one or two more shots as he was running away. After fleeing, one of
Pointer’s friends picked him up and drove Pointer back to where the shooting
occurred to meet the police. Several days later, Pointer saw [Petitioner] jumping
some of the neighbors’ fences trying to get back to [his] apartment building.
Pointer called the police and [Petitioner] was arrested.
Pointer testified that prior to the shooting, he and [Petitioner] were acquaintances.
Pointer believed the shooting may have been motivated by the fact that, at some
time prior to the shooting, Pointer had chased [Petitioner] down the street after
[Petitioner] had punched Pointer in the mouth.
Nancy Stewart (Stewart), an employee for the city, testified that she had just
posted a flyer in the deli’s window when she saw [Petitioner] start shooting at two
men. . . .
The jury found [Petitioner] guilty on both counts. The trial court sentenced
[Petitioner] to two concurrent sentences of 15 years’ imprisonment.
(Resp’t Ex. E at 2-3).
As noted above, Plaintiff’s sole claim is that he was denied effective counsel because his
trial counsel failed to request that the trial court submit an instruction on the lesser-included
offense of second-degree assault.
A. Exhaustion Analysis
A petitioner must exhaust his state law remedies before the federal court can grant relief
on the merits of the claims in a habeas petition. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). The Court must first examine whether the federal constitutional
dimensions of the petitioner’s claims have been fairly presented to the state court. Smittie v.
Lockhart, 843 F.2d 295, 296 (8th Cir. 1988) (citation omitted); see also Boerckel, 526 U.S. at
848. If they have not, the petitioner may still satisfy the exhaustion requirement if there are no
“currently available, non-futile state remedies” by which he could present his claims to the state
court. Smittie, 843 F.2d at 296 (citation omitted) (internal quotation marks omitted). A review of
the record shows that Petitioner’s claim for relief is exhausted because he properly raised the
claim in state court, where it was determined on the merits. Thus, the Court will address the
claim on the merits.
B. Merits Analysis
1. Legal Standard
“In the habeas setting, a federal court is bound by the [Antiterrorism and Effective Death
Penalty Act of 1996] to exercise only limited and deferential review of underlying state court
decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citation omitted). Under this
standard, a federal court may not grant relief to a state prisoner unless the state court’s
adjudication of a 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 decision is “contrary to” clearly established Supreme Court precedent “if
the state court arrives at a conclusion opposite to that reached by [the United States Supreme]
Court on a question of law or if the state court decides a case differently than [the United States
Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 412-13 (2000); see also Bell v. Cone, 535 U.S. 685, 694 (2002). A state court decision
involves an “unreasonable application” of clearly established federal law if it “correctly
identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Williams, 529 U.S. at 407-08; Bell, 535 U.S. at 694. “Finally, a state court
decision involves an unreasonable determination of the facts in light of the evidence presented in
the state court proceedings . . . only if it is shown that the state court’s presumptively correct
factual findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005, 1011
(8th Cir. 2004) (citations and internal quotation marks omitted).
Petitioner argues that his trial counsel was ineffective for failing to request a jury
instruction for assault in the second degree. The Missouri Court of Appeals reviewed the merits
of this claim and denied Petitioner relief.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
Strickland v. Washington, 466 U.S. 668, 686 (1984).
To prevail on a claim of
ineffective assistance of counsel, Petitioner must show that (1) “[his] counsel’s performance was
deficient” and (2) “the deficient performance prejudiced [his] defense.” Id. at 687. In evaluating
counsel’s performance, the basic inquiry is “whether counsel’s assistance was reasonable
considering all the circumstances.” Id. at 688. Petitioner bears a heavy burden in overcoming “a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. Indeed, a strong presumption exists that counsel’s conduct “might be
considered sound trial strategy.” Id. (citation and internal quotation marks omitted). “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable.” Id. at 690. To establish prejudice, 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.
In the context of a habeas claim, it is not sufficient for Petitioner to “show that he would
have satisfied Strickland’s test if his claim were being analyzed in the first instance.” Bell, 535
U.S. at 698-99. “Rather, he must show that the [state appellate court] applied Strickland to the
facts of his case in an objectively unreasonable manner.” Id. at 699.
The Missouri Court of Appeals did not apply Strickland in an objectively unreasonable
manner to the facts here.
In assessing whether counsel’s performance was deficient, the
Missouri Court of Appeals found that trial counsel’s decision not to request the instruction was
not an unreasonable trial strategy, because his strategy was to convince to jury that someone
other than Petitioner had been the shooter. (Resp’t Ex. J at 4). That determination is supported
by the facts in the record. At the evidentiary hearing, trial counsel testified that his argument at
trial was that the shooter had been someone other than Petitioner and that an instruction on
second-degree assault would have been inconsistent with the defense. (Resp’t Ex. F at 8-9).
Moreover, the trial transcript reveals that trial counsel began his closing argument with the
statement, “[Petitioner] was not the person who fired any shots at Deandra Pointer on December
7, 2007.” (Resp’t Ex. A at 152). Trial counsel is not ineffective for deciding not to include a
lesser-included offense instruction where such an instruction is inconsistent with defense
strategy. See Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir. 1997) (citation omitted) (“[T]rial
counsel’s decision not to request the lesser-included offense instructions was reasonable trial
strategy because the instructions would have been inconsistent with [the petitioner’s] alibi
defense.”); see also Riley v. Lockhart, 726 F.2d 421, 423 (8th Cir. 1984) (finding no ineffective
assistance of counsel where “trial counsel employed an all-or-nothing strategy” rather than
seeking a lesser included instruction).
Moreover, the Missouri Court of Appeals’ finding that Petitioner failed to show prejudice
from the lack of a second-degree assault instruction was reasonable. As the Missouri Court of
Appeals noted, a person commits second-degree assault under Missouri law if he “[a]ttempts to
kill or knowingly causes or attempts to cause serious physical injury to another person under the
influence of sudden passion arising out of adequate cause.” Mo. Rev. Stat. § 565.060. “Sudden
passion” is “passion directly caused by and arising out of provocation by the victim or another
acting with the victim which passion arises at the time of the offense and is not solely the result
of former provocation.” Id. § 565.002(7). “Sudden passion is not established when a reasonable
person had time for the passion to cool.” State v. Craig, 33 S.W.3d 597, 600 (Mo. Ct. App.
2000) (citation omitted). Petitioner argued that a finding of sudden passion was supported
because (1) there was evidence of a past incident in which Petitioner had hit the victim in the
mouth, and (2) the victim testified that the hitting incident might have sparked other events that
took place between Petitioner and the victim. (Resp’t Ex. A at 114; Resp’t Ex. G at 20; Resp’t
Ex. H at p. 18). However, as the Missouri Court of Appeals noted, those encounters happened in
the past and would have allowed time for the passion to cool. Petitioner cited no evidence that
he and the victim had any encounters close in time to the shooting that might support a finding of
sudden passion. In light of the lack of evidence supporting sudden passion, it was more than
reasonable for the Missouri Court of Appeals to find no reasonable probability that the jury’s
verdict would have been different had the trial court given the jury an instruction on seconddegree assault.
In sum, I find that the Missouri Court of Appeals’ determination on Plaintiff’s ineffective
assistance of counsel claim was not objectively unreasonable in light of the facts of this case and
was not based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. Thus, Plaintiff’s claim will be denied.
For the above reasons, Petitioner is not entitled to federal habeas relief. Under 28 U.S.C.
§ 2253, an appeal may not be taken to the court of appeals from the final order in a 28 U.S.C.
§ 2254 proceeding unless a circuit judge or district judge issues a Certificate of Appealability. 28
U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the petitioner “has
made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997). “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) (citation omitted).
The Court finds that reasonable jurists could not differ on Petitioner’s claim, so the Court will
not issue a Certificate of Appealability. Accordingly,
IT IS HEREBY ORDERED that petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no Certificate of Appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
IT IS FURTHER ORDERED that the Clerk shall substitute Dean Minor as respondent
in this action.
A separate Judgment shall accompany this Memorandum and Order.
Dated this 13th day of August, 2014.
/s/ Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
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