Bailey v. Russell

Filing 18

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the petition of Mareon L. Bailey for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. Signed by District Judge Audrey G. Fleissig on 08/29/2016. (KCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MAREON L. BAILEY,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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Case No. 4:13-cv-00693-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Mareon L. Bailey for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Petitioner
was charged with two counts of first-degree robbery and two counts of armed criminal
action. Following a trial held in August 2009, the jury found Petitioner guilty of all
counts. Petitioner was sentenced to concurrent sentences of 22 years on all counts.
For federal habeas relief, Petitioner argues that his constitutional rights were
violated by: (1) trial counsel’s failure to call an alibi witness, Donesha Robinson; (2) trial
counsel’s failure to object when Petitioner was cross-examined regarding his prior
offenses; (3) postconviction appellate counsel’s failure to raise all of Petitioner’s claims
for postconviction relief on appeal; and (4) postconviction counsel’s failure impeach or
object to the testimony of Petitioner’s trial counsel at the postconviction hearing. For the
reasons set forth below, habeas relief will be denied.

BACKGROUND
Trial
The evidence at trial showed the following. On July 31, 2008, shortly after 2:00
a.m., Leigh Kreft and Corey Davis were sitting in Davis’s parked car in an alley. Kreft’s
car was parked behind Davis’s car. They were approached by two black males on foot.
One of the males pointed a gun at Davis and ordered Kreft and Davis to get out of
Davis’s car.
The second male then went into Davis’s car and took Davis’s wallet and Kreft’s
cell phone. He also went into Kreft’s car, grabbed her purse, and rummaged through it.
When he had trouble locating her money, Kreft helped him locate and take the little cash
she had from her purse. During that time, Kreft was standing within a foot of the second
male and had a clear picture of his face. Both males then left, Kreft and Davis went to
the police station to report the incident, and Kreft provided descriptions of the
perpetrators.
A few days after the robbery, Kreft bought a new cell phone and had the contact
information from the stolen phone transferred to her new phone. From this information,
she learned that the stolen phone had been used beginning approximately 15 minutes
after the robbery to call three phone numbers. Kreft provided these phone numbers to
Detective Thomas Walsh of the St. Louis Police Department.
Detective Walsh ran the phone numbers through police databases and discovered
that they belonged to individuals Petitioner had previously listed to police as his contacts.

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Detective Walsh pulled Petitioner’s photo and discovered that he matched one of the
descriptions provided by Kreft.
Kreft then identified Petitioner in a photo lineup, and later in a live lineup, as the
robber who took her cell phone and money. In court, Kreft testified that she was one
hundred percent certain that Petitioner was this robber. Davis was unable to identify
anyone.
Petitioner testified at trial and admitted that he used the stolen cell phone to call
his friends and relatives on the night of the robbery, but he stated that he purchased the
cell phone from a man named Aaron Ricks. Petitioner testified that, on the night of the
robbery, he was standing outside on the street in his old neighborhood1 with several
people, including Donesha Robinson. Petitioner testified that Ricks came to the
neighborhood looking to sell a cell phone, that Ricks tried to sell the phone to Robinson
but Robinson did not have cash, and that Robinson called Petitioner over to ask whether
he wanted to purchase the phone. Petitioner testified that he gave Ricks marijuana for the
cell phone and then used the cell phone to make the calls described above, in order to find
a ride home.
Petitioner also testified regarding his prior convictions. On direct examination, he
testified that he pled guilty to two charges of possession of a controlled substance in
2005, that he received a sentence of two years’ probation on those charges, and that in

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The record indicates that this neighborhood was a few miles away from where the
robbery took place.
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2007, he pled guilty to charges of first-degree tampering, resisting arrest, and leaving the
scene of an accident.
In response to questioning on cross-examination, Petitioner denied that his
probation on the possession charges was revoked. The State then asked to approach the
bench to discuss the line of questioning as to whether Petitioner’s probation was revoked
as a result of the 2007 charges. The trial court permitted the State to ask whether
Petitioner’s probation was revoked, and to impeach Petitioner if he denied that it was.
On subsequent questioning, Petitioner first denied that his probation was revoked, and the
State questioned Petitioner, without objection from Petitioner’s trial counsel, as to
whether he was on probation when he pled guilty to 2007 charges. Petitioner then
responded affirmatively and testified that his probation was revoked as a result of the
2007 charges.
Direct Appeal
On direct appeal, Petitioner argued that the trial court erred by (1) granting the
State’s motion in limine to prohibit Petitioner from testifying that Ricks matched the
physical description of the second robber; and (2) overruling Petitioner’s objection to
Kreft’s in-court identification of Petitioner. The Missouri Court of Appeals rejected both
of these claims.
State Postconviction Proceedings
In his motion for postconviction relief, Petitioner claimed that his trial counsel was
ineffective in (1) failing to call Robinson as a witness, and (2) failing to object when the

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State cross-examined Petitioner about whether he had been on probation when he pled
guilty to the 2007 charges.
At an evidentiary hearing beginning on September 16, 2011, Petitioner’s trial
counsel testified that he spoke to Petitioner about Robinson as a potential defense witness
but that after interviewing Robinson, he decided she would not be a credible witness.
Trial counsel testified that Robinson’s memory of the night in question was that a black
man approached her while she was with Petitioner’s girlfriend, that the man tried to sell
her a cell phone, that she called Petitioner on Petitioner’s girlfriend’s cell phone and
informed him of this, and that Petitioner then came and purchased the phone. Trial
counsel testified that when he talked to Petitioner about that night, Petitioner had told him
that he needed to buy a cell phone so he could call someone to get a ride home. Trial
counsel thought that Robinson’s testimony would not corroborate Petitioner’s story
because if Petitioner had access to his girlfriend’s phone, as Robinson would testify,
Petitioner would not have needed to purchase a cell phone to call someone for a ride.
Trial counsel also testified that he agreed it was objectionable under state
evidentiary law for the State to cross-examine Petitioner as to whether he was on
probation when he pled guilty to the 2007 charges, and that allowing the questioning to
occur might have caused the jury to view Petitioner negatively. However, trial counsel
testified that he believed the jury could have deduced on their own that Petitioner was on
probation at the time because Petitioner had already admitted that he was sentenced to
two years’ probation in 2005 and charged with the new offenses in 2007.

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On cross-examination, the State asked Petitioner’s trial counsel about all of the
evidence against Petitioner at trial. In response to this line of questioning, Petitioner’s
trial counsel incorrectly testified that both victims identified Petitioner at trial.
The evidentiary hearing was continued until November 4, 2011, at which time
Robinson testified. Robinson testified that in 2008 she was in an accident and that she
could not recall being with Petitioner that year when someone tried to sell her a cell
phone. She was not questioned further.
The motion court held that Petitioner’s first claim of ineffective assistance of
counsel failed because Petitioner’s trial counsel articulated a valid strategic reason for not
presenting the testimony of Robinson, and Robinson’s testimony at the hearing did not
demonstrate that she would have been a helpful witness. The motion court also held that
Petitioner’s second claim failed because the admission of evidence that Petitioner was on
probation when he committed some of his prior offenses did not have any effect on the
outcome of the case and therefore did not prejudice Petitioner.
The only claim that Petitioner preserved on appeal of the denial of his motion for
postconviction relief was his claim relating to trial counsel’s failure to object when the
state cross-examined Petitioner about whether he had been on probation at the time he
pled guilty to the 2007 charges. The Missouri Court of Appeals affirmed the denial of
postconviction relief on this ground. The Missouri Court of Appeals held that trial
counsel was not ineffective in failing to object because the prosecutor’s questioning was
permissible impeachment under state evidentiary law. The court further held that

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Petitioner could not show a reasonable probability that, but for trial counsel’s alleged
error, the outcome of the trial would have been different.
Federal Habeas Petition
As noted above, in his federal habeas petition, Petitioner asserts that his
constitutional rights were violated by (1) trial counsel’s failure to call Robinson as an
alibi witness; (2) trial counsel’s failure to object when Petitioner was cross-examined
regarding whether he was on probation at the time he pled guilty to the 2007 charges; (3)
postconviction appellate counsel’s failure to raise all of Petitioner’s claims for
postconviction relief on appeal; and (4) postconviction counsel’s failure impeach or
object to Petitioner’s trial counsel’s testimony at the postconviction hearing that both
victims had identified Petitioner at trial.
DISCUSSION
Procedurally Defaulted Claim (Claim 1)
Under the doctrine of procedural default, a federal habeas court is barred from
considering the merits of a claim not fairly presented to the state courts, absent a showing
by the petitioner of cause for the default and prejudice resulting therefrom, or that he is
actually innocent, such that a miscarriage of justice would result by failing to consider the
claim. E.g., Gordon v. Arkansas, No. 15-1168, 2016 WL 3027276, at *6 (8th Cir. May
26, 2016) (quotation and citation omitted).
Here, as the State argues, Petitioner’s first claim of ineffective assistance of
counsel (Claim 1), based on trial counsel’s failure to call Robinson as an alibi witness,
was procedurally defaulted because, although raised in Petitioner’s motion for
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postconviction relief, it was not preserved on appeal from the denial of that motion.
Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012). Petitioner cannot rely on a
claim of ineffective assistance of postconviction appellate counsel as cause to excuse the
procedural default. Id. (distinguishing Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012)).
Petitioner also fails to show that a miscarriage of justice will result if his defaulted
claim is not considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (holding
that a petitioner must present new evidence that affirmatively demonstrates that he is
actually innocent of the crime for which he was convicted in order to fit within the
miscarriage of justice exception).2 In sum, Claim 1 will be denied as procedurally
defaulted.
Non-Cognizable Claims (Claims 3 and 4)
As the State correctly argues, “[f]ederal habeas courts are only authorized to
review the constitutionality of a state criminal conviction, not infirmities in a state postconviction relief proceeding.” Jennings v. Groose, No. 4:94CV1349 CDP, 2015 WL
1475663, at *2 (E.D. Mo. Mar. 31, 2015) (quotation and citation omitted). Neither
ineffective assistance of postconviction counsel nor ineffective assistance of
postconviction appellate counsel gives rise to an independent claim for federal habeas
relief. See id. (citing Yarberry v. Sachse, 2013 WL 3231539, at *5 (W.D. Mo. Jun. 26,
2013)); 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for relief in a

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To the contrary, the record shows that trial counsel’s decision not to call Robinson
was the result of reasoned trial strategy.
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proceeding arising under section 2254.”). As such, Claims 3 and 4 will be denied as noncognizable.
Ineffective Assistance of Trial Counsel Claim (Claim 2)
Where a claim has been adjudicated on the merits in state court, the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) provides that application for a writ of
habeas corpus cannot be granted unless the state court’s adjudication:
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 proceedings.
28 U.S.C. § 2254(d).
“[C]learly established Federal law” for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions. And an ‘unreasonable application of’ those holdings must be
objectively unreasonable, not merely wrong; even clear error will not
suffice. To satisfy this high bar, a habeas petitioner is required to show that
the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (citations omitted).
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show
ineffective assistance of counsel, a habeas petitioner must show both that “[his] counsel’s
performance was deficient” and that “the deficient performance prejudiced [his]
defense.” Id. at 687; see also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th
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Cir. 2014). To show deficient performance, the petitioner must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and
Petitioner bears a heavy burden in overcoming “a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance” and “might be
considered sound trial strategy.” Id. at 689 (citations omitted). To show prejudice, the
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.
When, as here, an ineffective assistance claim has been addressed by the state
court, this Court must bear in mind that “[t]aken together, AEDPA and Strickland
establish a ‘doubly deferential standard’ of review.” See Williams v. Roper, 695 F.3d
825, 831 (8th Cir. 2012) (citation omitted). In the context of a habeas claim, it is not
sufficient for a petitioner to “show that he would have satisfied Strickland’s test if his
claim were being analyzed in the first instance.” Bell v. Cone, 535 U.S. 685, 698-99
(2002). “Rather, he must show that the [state court] applied Strickland to the facts of his
case in an objectively unreasonable manner.” Id. at 699.
Here, the state courts reasonably held that trial counsel’s failure to object when
Petitioner was cross-examined regarding whether he was on probation at the time he pled
guilty to the 2007 charges did not constitute ineffective assistance of counsel. The state
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courts applied the correct legal principles to the claim, and reasonably found that trial
counsel did not perform deficiently by failing to object to the State’s questioning.
Petitioner admitted on direct examination that he was sentenced to two years’ probation
beginning in 2005 and that he was charged with the additional offenses in 2007, and the
jury could have deduced from that testimony that Petitioner was still on probation at the
time of the 2007 charges. Grooms v. Lockhart, 919 F.2d 505, 508 (8th Cir. 1990) (“Trial
counsel’s failure to object to impeachment [of petitioner with regard to his criminal
history] was not deficient because the record clearly reveals that [the petitioner] testified
about his criminal history on direct examination.”).
Moreover, in light of the other evidence of Petitioner’s guilt at trial, the state
courts reasonably found that the outcome of the trial would not have been different absent
the impeachment. Accordingly, Claim 2 is without merit.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court’s
assessment of the procedural or substantive issues presented in this case debatable or
wrong, for purposes of issuing a Certificate of Appealability under 28 U.S.C.
§ 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (standard for issuing a
Certificate of Appealability) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Mareon L. Bailey for a writ of
habeas corpus is DENIED.
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IT IS FURTHER ORDERED that a Certificate of Appealability shall not be
issued in this case.
A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of August, 2016.

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