Green v. Wallace

Filing 49

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 30 is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no certif icate 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. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Shirley Padmore Mensah on 9/21/16. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KERRY GREEN,

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Petitioner,
v.
IAN WALLACE,
Respondent.

No. 4:13-CV-811-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Kerry Green’s (“Petitioner’s”) pro se
amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 30). The parties
have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c)(1). (Doc. 22). For the following reasons, the amended petition for a writ of
habeas corpus will be denied.
I.

FACTUAL BACKGROUND
The following background is taken from the decision of the Missouri Court of Appeals

affirming Petitioner’s convictions on direct appeal:
In February 2008, Edmond Mack (Victim) shared the upstairs unit of a
two-family flat with his friend, Avedou (“Vedo”) Halkmon. Vedo Halkmon’s
older brother Ronald Halkmon had been living in the downstairs unit with his
girlfriend, Peaches. On February 25, 2008, Ronald and Peaches were moving out
of the downstairs unit, and Ronald’s and Vedo’s cousin, Carlos Vaughn was
moving in with his girlfriend.
When Vedo arrived home on the evening of February 25, 2008, he saw
Ronald standing on the front porch with [Petitioner] and Vaughn. Vedo greeted
the three men and continued upstairs to his apartment. Later, Ronald knocked on
the door to the upstairs apartment and used Vedo’s cell phone to call the landlord
and demand the return of his security deposit. After arguing with the landlord for
twenty to thirty minutes, Ronald left the apartment. He returned a short time later

and asked Vedo for a cigarette. Both times Ronald knocked on the door, Vedo
answered it.
A few minutes later, Ronald knocked on Vedo and the Victim’s door a
third time. Victim answered the door, then headed back up the stairs. Vedo heard
Ronald say to Victim, “Let me holler at you for a moment,” and Victim went back
down the stairs. Ronald proceeded to confront Victim about an argument he
claimed Victim had with Peaches, saying, “What’s that shit going on with you
and Peaches?” Victim denied having said anything to Peaches, told Ronald to “go
get Peaches” so that she could settle the matter, and headed back up the stairs.
Victim said, “You trippin’, Ron,” immediately before Ronald fired a .38 revolver
into Victim’s back.
After Ronald shot Victim, he pulled Victim down the stairs. Ronald tried
unsuccessfully to pull Victim outside, but Victim resisted by wedging his arms
against the door. At this point, [Petitioner] and Vaughn went through Victim’s
jeans pockets. When they had finished, Ronald, [Petitioner], and Vaughn drove
away in a burgundy and brown truck that [Petitioner] had been driving.
When Vedo heard the gunshot, he ran to the top of the stairs, shouting
repeatedly at Ronald, “I know you ain’t just shoot [Victim].” When he saw that
Victim had been shot, Vedo ran back inside and called 911. When the police
arrived, they found Victim dead, with his right pants pocket turned inside-out.
The State charged [Petitioner], Ronald, and Vaughn under the same
indictment. The State charged [Petitioner] and Vaughn each with one count of
murder in the second degree, one count of robbery in the first degree, and two
counts of armed criminal action. The State charged Ronald with first-degree
murder and armed criminal action.
Prior to trial, [Petitioner] filed a motion to sever his case from Ronald’s.
After a hearing, the trial court denied [Petitioner]’s motion to sever. After a weeklong jury trial, the jury found [Petitioner] guilty on all charges. The jury also
found [Petitioner]’s codefendants, Ronald and Vaughn, guilty on all charges. The
trial court sentenced [Petitioner], as a prior and persistent offender, to thirty years’
imprisonment.
Resp’t Ex. B, at pp. 4-6.
II.

PROCEDURAL BACKGROUND
In his direct appeal, Petitioner asserted five claims of trial error. Resp’t Ex. A, at p. 2. The

Missouri Court of Appeals affirmed the judgment. Resp’t Ex. B. On April 1, 2011, Petitioner
filed a pro se motion for post-conviction relief. Resp’t Ex. C. On July 18, 2011, through counsel,
Petitioner filed an amended motion for post-conviction relief, in which he raised several claims
of ineffective assistance of counsel and one claim of prosecutorial misconduct. Resp’t Ex. D, at

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pp. 2-11. The motion court denied the amended motion. Resp’t Ex. E. Petitioner appealed, Resp’t
Ex. F, and the Missouri Court of Appeals affirmed the denial of the motion, Resp’t Ex. G.
On April 25, 2013, Petitioner filed his pro se petition in the instant action, in which he
asserted eleven grounds for relief. (Doc. 1). On May 8, 2014, with leave of this Court, Petitioner
filed an amended petition in which he asserted fourteen grounds for relief: (1) that there was
insufficient evidence to convict him of robbery and the accompanying count of armed criminal
action; (2) that there was insufficient evidence to convict him of felony murder and the
associated count of armed criminal action; (3) that the trial court erred in denying Petitioner’s
motion to sever his trial from that of his co-defendant, Ronald Halkmon (“Ronald”) 1; (4) that the
trial court erred by allowing the state to introduce evidence concerning the circumstances
surrounding Petitioner’s arrest; (5) that the trial court erred in not allowing Petitioner the
opportunity to present evidence that the day before the offense, Ronald had shot a gun at his
girlfriend, Peaches; (6) that Petitioner’s direct appeal counsel was ineffective because counsel
failed to appeal the trial court’s admission of the prior consistent statements of Avedou; (7) that
Petitioner’s trial counsel was ineffective because she failed to object to the questioning of
Detective Jackson with regard to statements made to him by Shante Jennings; (8) that trial
counsel was ineffective because she failed to cure the damage done to the defense by the state’s
opening statement promising the testimony of Shante Jennings; (9) that trial counsel was
ineffective because she failed to pursue Petitioner’s motion to suppress an in-court identification
and to request a ruling on the motion; (10) that trial counsel was ineffective because she failed to
investigate and challenge the validity of Petitioner’s arrest and to move to suppress all evidence
obtained after the arrest; (11) that Petitioner was denied the right to a fair trial due to
1

Because some of the individuals involved in this incident have the same last name, the Court
will refer to some individuals by their first names.
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prosecutorial misconduct based on the prosecutor’s failure to disclose that he had lost contact
with witness Shante Jennings; (12) that Petitioner was denied the right to a fair trial due to
prosecutorial misconduct in that the prosecutor argued facts not in evidence; (13) that Petitioner
was denied the right to a fair trial due to prosecutorial misconduct based on impermissible
burden-shifting; and (14) that the representation of Petitioner’s trial counsel as a whole was such
that had cumulative errors not occurred, there would have been a reasonable probability of a
different outcome. (Doc. 30).
III.

LEGAL STANDARD
Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by AEDPA [the
Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of
underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28
U.S.C. § 2254). Under AEDPA, a federal court may not grant relief to a state prisoner with
respect to any claim that was adjudicated on the merits in the state court proceedings 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
precedents “if the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially

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indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result
different from [the Supreme Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06
(2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). 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; see also Bell v. Cone, 535 U.S. 685, 694 (2002). “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); see also Rice v. Collins,
546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless
the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C.
§ 2254(e)(1)).
IV.

DISCUSSION
A. Ground One: Sufficiency of the Evidence—Robbery and Associated Armed
Criminal Action Count
In Ground One, Petitioner argues that his due process rights were violated because there

was insufficient evidence to support his convictions for first degree robbery and armed criminal
action. Petitioner argues that the state failed to prove that (1) the victim had money in his pocket
prior to the shooting, and (2) Ronald shot the victim for the purpose of overcoming resistance to
the taking of money. Petitioner raised this claim in his direct appeal, and the Missouri Court of
Appeals denied it on the merits. Resp’t Ex. B, at pp. 6-8.
In reviewing a challenge to the sufficiency of the evidence, “the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any rational
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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). Accord Parker v.
Matthews, 132 S. Ct. 2148, 2152 (2012); Cavazos v. Smith, 132 S. Ct. 2, 6 (2011). “This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. State law determines the specific elements of the crimes.
Fenske v. Thalacker, 60 F.3d 478, 480 (8th Cir. 1995). The federal habeas court’s scope of
review is very limited. The Court “must presume that the trier of fact resolved all conflicting
inferences in the record in favor of the state” and “must defer to that resolution.” Whitehead v.
Dormire, 340 F.3d 532, 536 (8th Cir. 2003) (quotation marks omitted). Furthermore, “a statecourt decision rejecting a sufficiency challenge may not be overturned on federal habeas unless
the decision was objectively unreasonable.” Parker, 132 S. Ct. at 2152 (quotation marks
omitted).
As Petitioner points out, the verdict director applicable to Count V (robbery in the first
degree), Instruction No. 21, instructed the jury to find that the offense of robbery in the first
degree had occurred if it found beyond a reasonable doubt that (1) “that on February 25, 2008,
[Petitioner] or other persons took money, which was property in the possession of [the victim]”;
(2) “that [Petitioner] or other persons did so for the purpose of withholding it from the owner
permanently”; (3) “that Ronald Halkmon in doing so used physical force on or against [the
victim] for the purpose of overcoming resistance to the taking of the property”; and (4) “that in
the course of obtaining the property, Ronald Halkmon was armed with a deadly weapon.” Resp’t
Ex. A, at p. 71. It further instructed that if the jury found that the offense of robbery in the first
degree had occurred and that if it further found beyond a reasonable doubt “that with the purpose

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of promoting or furthering the commission of that robbery, [Petitioner] acted together with or
aided other persons in committing the offense,” then the jury should find Petitioner guilty of
robbery in the first degree. Id. Petitioner does not dispute that the verdict director accurately
reflects the elements of the crime under Missouri law.
Petitioner argues that there was insufficient evidence to prove the first element—that
Petitioner or others took money that was in the victim’s possession—because the state failed to
prove that the victim had money in his possession prior to the shooting. Petitioner also argues
that there was insufficient evidence to prove the third element because the state failed to prove
that Ronald used physical force against the victim for the purpose of overcoming resistance to
the taking of the victim’s property. Addressing both arguments, the Missouri Court of Appeals
first properly articulated the Jackson standard described above. Resp’t Ex. B, at p. 6. It then
noted that under Missouri law, the state may prove its case by presenting either direct or
circumstantial evidence connecting the defendant to each element of the crime; that the jury is
free to make reasonable inferences from the evidence presented; and that an eyewitness account
of the theft itself is not necessary to sustain a conviction for first degree robbery. Resp’t Ex. B, at
p. 7. The Missouri Court of Appeals then stated:
From the evidence presented at trial, reasonable jurors could have found
that, prior to the shooting, Victim had money on his person and that [Petitioner]
used physical force against Victim for the purpose of preventing resistance to the
taking of that money. See, e.g., State v. Weems, 840 S.W.2d 222, 228 (Mo. banc
1992). The evidence showed that Victim worked odd jobs and sold drugs for
money and that he “typically” carried about $50 in cash. On February 25, 2008,
Ronald summoned Victim down the apartment stairs, where Ronald was standing
with [Petitioner] and Vaughn. Immediately after Ronald shot victim, Vedo saw
Ronald holding Victim by his shirt collar, while [Petitioner] and Vaughn “were
going through” Victim’s pants pockets. The three men ran to [Petitioner]’s truck
and drove away. Victim’s right front pants pocket was pulled inside-out. The
investigating police officer testified that he did not find any cash on Victim’s
person. This evidence is sufficient to allow an inference that Victim had money in
his pants pocket, Ronald shot Victim for the purpose of taking that money, and
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[Petitioner] and/or his codefendants took Victim’s money before fleeing the
scene.
In his brief, [Petitioner] claims that Ronald used physical force against
Victim, not for the purpose of robbing him, but “based upon his anger toward
[Victim].” [Petitioner] goes on to argue that he and his codefendants did not form
an intent to rob Victim prior to the shooting, rather, he and Vaughn “just took
advantage of the fact that Ronald had shot [Victim].” Contrary to [Petitioner]’s
argument, “it is enough that the violence to [Victim] was preceded by or
contemporaneous with the taking.” State v. Rhodes, 988 S.W.2d 521, 526 (Mo.
banc. 1999).
Resp’t Ex. B, at pp. 7-8.
A review of the record shows that the Missouri Court of Appeals’ rejection of this claim
was reasonable. Viewed in the light most favorable to the verdict, the evidence showed that the
victim did odd jobs and sold marijuana, that he typically carried at least $50 in cash, and that
immediately after the shooting, Petitioner and one of his co-defendants went through his pants
pockets and then fled the scene. See Resp’t Ex. I, at Tr. 541-42, 571-73, 708. A reasonable trier
of fact could have inferred from that evidence that the victim had money on him and that
Petitioner and/or his co-defendants took money from him. Petitioner argues that this case is
analogous to State v. Doss, 394 S.W.3d 486 (Mo. Ct. App. 2013), in which the court found
insufficient evidence to support a finding that the defendants took wallets from a crime scene. Id.
at 493-94. In that case, the only evidence at trial pertaining to wallets consisted of law
enforcement testimony that no wallets were located at the crime scene, which was unusual. Id.
The Court noted that “there was no evidence indicating that [the victims] had wallets with them
that day, or even that they customarily carried the wallets with them.” Id. Doss is distinguishable,
because here there was evidence the victim customarily carried money. Moreover, even if this
case were not distinguishable from Doss, that would not constitute a showing that the Missouri
Court of Appeals’ decision was contrary to, or an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United States.
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The Missouri Court of Appeals’ finding that Ronald shot the victim for the purpose of
overcoming resistance to the taking of his property was also not objectively unreasonable. The
evidence showed that Ronald knocked on the door of the victim’s apartment and called him to
come downstairs, where Ronald was standing with Petitioner and another codefendant; that
Ronald shot the victim; and that immediately thereafter Ronald was holding the victim by the
victim’s collar and trying to pull him out the door while Petitioner and the other co-defendant
were going through his pockets. See Resp’t Ex. I, at Tr. 560, 564, 568-72. There was also
evidence presented that shortly before the murder, Ronald had been very upset that his landlord
would not return the money he used for a security deposit, which tends to support a finding of a
financial motivation. Id. at Tr. 555-56. Based on this evidence, a reasonable jury could have
made the inference that Ronald shot the victim for the purpose of taking his money. Petitioner
urges the Court to adopt a different inference—that Ronald shot the victim out of anger.
However, on habeas review, this Court must presume that the trier of fact resolved all conflicting
inferences in the record in favor of the state, and the Court must defer to that resolution. See
Whitehead, 340 F.3d at 536. It is not the role of this Court to reweigh the evidence or make its
own inferences. Moreover, as the Missouri Court of Appeals reasonably noted in addressing a
related claim, “[f]inancial motivation and enmity are not mutually exclusive motives.” See
Resp’t Ex. B, at p. 19
Finally, Petitioner argues that the Missouri Court of Appeals’ decision involved an
unreasonable determination of the facts because the court stated that a reasonable jury could have
found “that [Petitioner] used physical force against Victim.” See id. at p. 7. As Petitioner argues,
there was no evidence that Petitioner ever used force against the victim, and the jury instructions
required a finding that Ronald—not Petitioner—was the one who used force against the victim.

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A reading of the Missouri Court of Appeals’ decision as a whole, however, makes it clear that
this was a mere typographical error in one sentence; in the rest of its decision, the Missouri Court
of Appeals plainly explains that Ronald is the one who shot Petitioner. See Resp’t Ex. B, at pp.
7-8.
Petitioner’s argument that there was insufficient evidence to convict him of armed
criminal action based on the robbery2 is entirely based on his argument that there was
insufficient evidence to convict him on the robbery charge. That argument therefore fails as well.
For all of the above reasons, Petitioner is not entitled to relief on Ground One.
B. Ground Two: Sufficiency of the Evidence—Felony Murder and Associated
Armed Criminal Action Count
In Ground Two, Petitioner argues that there was insufficient evidence to support his
conviction of felony murder in the second degree under Mo. Rev. Stat. § 565.021(2), as well as
the associated armed criminal action count. Petitioner argues that the victim was not killed in the
perpetration of the alleged robbery, but rather, the alleged robbery occurred only after Ronald
had deliberately murdered the victim out of anger. Petitioner presented this claim on direct
appeal, and the Missouri Court of Appeals denied the claim immediately after addressing the
claim in Ground One, stating:
A person is guilty of second-degree, or felony, murder if he committed a
felony and, in the perpetration of that felony, another person was killed as a result
of the perpetration of that felony. Section 565.021.1(2); Burrell, 160 S.W.3d at
803. As previously discussed, there was sufficient evidence to convict [Petitioner]
of robbery in the first degree, the felony underlying his conviction for murder in
the second degree. There was also sufficient evidence to find that a person was
killed as a result of the perpetration of that felony. We therefore affirm the
conviction for second-degree murder.
2

A person is guilty of armed criminal action if he or she “commits any felony under the laws of
[the state of Missouri] by, with, or through the use, assistance, or aid of a dangerous instrument
or deadly weapon . . . .” Mo. Rev. Stat. § 571.015.
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Resp’t Ex. B, at p. 8.
The Missouri Court of Appeals’ decision was not objectively unreasonable. As discussed
above with respect to Ground One, there was sufficient evidence from which a reasonable jury
could have found that Ronald shot the victim for the purpose of overcoming resistance to the
taking of the victim’s property, and that Petitioner was guilty of the felony of robbery in the first
degree. For the same reasons, a reasonable jury could have found that the victim was killed as a
result of the perpetration of the felony of robbery in the first degree. As with Ground One,
Petitioner argues that the evidence better supports a different conclusion—that Ronald murdered
the victim out of anger. However, as discussed above, in reviewing a sufficiency of the evidence
challenge, this Court must defer to the jury’s resolution of the possible conflicting inferences.
For the above reasons, Petitioner is not entitled to relief on Ground Two.
C. Ground Three: Failure to Sever
In Ground Three, Petitioner argues that the trial court abused its discretion by denying
Petitioner’s motion to sever his trial from that of his co-defendant, Ronald. Petitioner raised this
argument in his direct appeal, and the Missouri Court of Appeals denied it on the merits. See
Resp’t Ex. B, at pp. 8-13.
To the extent that Petitioner’s claim is that the trial court should have severed his trial as
a matter of Missouri law, it is not cognizable on habeas review. “[I]ssues of joinder and
severance are matters of state law.” Smith v. Bowersox, No. 4:12 CV 2089 DDN, 2014 WL
1377810, at *5 (E.D. Mo. April 8, 2014). Violations of state law are not cognizable in federal
habeas proceedings. See Lee v. Norris, 354 F.3d 846, 847 (8th Cir. 2004) (“[A] mere violation of
state law . . . is not cognizable in federal habeas.”); Wilson v. Corcoran, 562 U.S. 1, 5 (2010)
(“[W]e have repeatedly held that ‘federal habeas corpus relief does not lie for errors of state
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law.’”) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). “It is not the province of a federal
habeas court to reexamine state-court determinations on state law questions.” Id. (quoting
Estelle, 502 U.S. at 67-68).
Neither party has identified any Supreme Court standard for evaluating whether the
failure to sever constitutes a violation of a constitutional right, nor has the Court found any.
However, some lower courts evaluating such claims have used the standard that applies to
alleged due process violations, under which habeas relief is warranted only where the petitioner:
shows that the alleged improprieties were so egregious that they fatally infected
the proceedings and rendered his entire trial fundamentally unfair. To carry that
burden, the petitioner must show that there is a reasonable probability that the
error complained of affected the outcome of the trial—i.e., that absent the alleged
impropriety the verdict probably would have been different.
Brutcher v. Cassady, No. 4:11-CV-1613 ACL, 2014 WL 4823952, at *7-8 (E.D. Mo. Sept. 26,
2014) (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) and finding that the issue of
improper joinder “is properly analyzed under the standard for alleged due process violations”).
See also Hollins v. Dep’t of Corr., 969 F.2d 606, 608 (8th Cir. 1992) (“Regardless of the state
law governing severance in state trials, this court will not grant relief to a habeas petitioner on
this issue unless he can establish that the failure to grant severance rendered the trial
‘fundamentally unfair.’”); Smith, 2014 WL 137810, at *5 (“[T]o obtain federal habeas corpus
relief [based on failure to sever], the joinder must actually render petitioner’s state trial
fundamentally unfair and hence, violative of due process.”) (internal quotation marks omitted).
The Court will assume, arguendo, that Petitioner could obtain habeas relief by satisfying
the standard applicable to alleged due process violations. However, Petitioner cannot satisfy that
standard here, because he cannot show that the failure to sever was so egregious that it rendered
his trial fundamentally unfair, nor can he show a reasonable probability that the error complained

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of affected the outcome of the trial. Petitioner first argues that he was prejudiced by the
admission of evidence that Ronald made a threatening phone call to a witness who was saying
that Ronald had killed the victim, which Petitioner claims would not have been admissible had
his trial been severed from Ronald’s trial. However, the Missouri Court of Appeals, applying
Missouri law, found that this evidence “would have been admissible in a separate trial.” Resp’t
Ex. B, at p. 10. This Court may not second-guess the state court’s decision on a matter of state
law. See Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012) (“We do not second-guess the
decision of a Missouri state court on Missouri law.”). Because this evidence would have been
admissible even had the trials been severed, the admission of this evidence cannot be used to
show that the outcome of Petitioner’s trial would have been different had the motion to sever
been granted. Petitioner’s second argument is that he was prejudiced by the admission of
evidence related to letters Ronald wrote to the police stating that Petitioner was the one who had
shot the victim. However, the Missouri Court of Appeals found that Petitioner was not
prejudiced by the admission of this evidence, because Ronald testified that his statement that
Petitioner had shot the victim was untrue. See Resp’t Ex. B, at p. 12. The court also noted that
the jury’s verdict showed that the jury believed the evidence that Ronald, not Petitioner, shot the
victim. See id. The Missouri Court of Appeals’ determination was reasonable and establishes that
the outcome of the trial would not have been different had the motion to sever been granted and
this evidence not admitted.
Petitioner’s third argument is that, had the trials been severed, he would have been able to
introduce evidence that the day before the robbery and murder, Ronald allegedly had a gun and
used it to shoot at his girlfriend, Peaches. This argument was not presented in Petitioner’s direct
appeal, and thus it is arguably appropriate for this Court to disregard it and limit its review to the

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facts related to the arguments and facts that were made before the state court. See Ward v.
Norris, 577 F.3d 925, 935-36 (8th Cir. 2009) (holding that where the petitioner’s argument in
support of his ineffective assistance of counsel claim “contain[ed] significant additional facts that
expand the scope of the claim he presented both to the state courts and the district court” the
court would “limit [its] review to the facts related to the argument made to the state courts”).
However, even if this Court did consider these new arguments and facts, they would not warrant
relief. The record reflects that the trial court refused to admit the evidence regarding Ronald
shooting at Peaches at least in part because the trial court found it “tangential and collateral.” See
Resp’t Ex. I, at Tr. 729-30, and the record also shows that the trial court was skeptical that it
would have been admissible even in a separate trial. Resp’t Ex. J, at Tr. 1078-80. Petitioner has
not established that he would have been able to present this evidence had he been tried
separately. Nor has he established that the admission of this evidence would have changed the
outcome of the trial. As the Missouri Court of Appeals reasonably found in addressing a separate
claim related to the failure to admit this evidence (discussed in more detail below), Petitioner’s
claim that Ronald shooting at Peaches prior to the murder related in any way to the crime against
the victim is based on speculation, and evidence that Ronald harbored hostility toward the victim
does not refute the evidence that Ronald and his co-defendants wanted to rob the victim, because
“[f]inancial motivation and enmity are not mutually exclusive motives.” See Resp’t Ex. B, at pp.
18-19. This determination was not unreasonable.
For all of the above reasons, the Missouri Court of Appeals’ rejection of this claim was
not contrary to, or an unreasonable application of, clearly established federal law, nor was it
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding. Therefore, Petitioner is not entitled to relief on Ground Three.

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D. Ground Four: Introduction of Evidence Concerning the Circumstances
Surrounding Petitioner’s Arrest
In Ground Four, Petitioner argues that the trial court erred in permitting the introduction
of evidence concerning the circumstances surrounding his arrest, in particular the fact that he
was found in a truck, passed out, with cocaine in his lap. Petitioner raised this claim in his direct
appeal, and the Missouri Court of Appeals denied it on the merits. Resp’t Ex. B, at pp. 13-17.
To the extent that Petitioner’s claim is that the trial court erred in its ruling on an
evidentiary matter, this claim is not cognizable for purposes of habeas review. “Rules of
evidence and trial procedure are usually matters of state law. A federal issue is raised only where
trial errors infringe on a specific constitutional protection or are so prejudicial as to amount to a
denial of due process.” Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006) (quoting Adail
v. Wyrick, 711 F.2d 99, 102 (8th Cir. 1983)). The Eighth Circuit has found that “there is no due
process violation simply because a trial court admits evidence of a defendant’s uncharged bad
acts.” Harris v. Bowersox, 184 F.3d 744, 752 (8th Cir. 1999). Instead, to show a federal due
process violation, the habeas petitioner “must show that the alleged error rendered the entire trial
fundamentally unfair—that there is a reasonable probability that the error complained of affected
the outcome of the trial—i.e., that absent the alleged impropriety, the verdict probably would
have been different.” Id. (quoting Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991)).
The Missouri Court of Appeals’ rejection of this claim was not contrary to, or an
unreasonable application of, clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. The
Missouri Court of Appeals found that this evidence was admissible under Missouri law, because
Petitioner had opened the door to this evidence through his own presentation of argument and
evidence. Resp’t Ex. B, at p. 16. This Court may not second-guess the state court’s decision on a
15

matter of Missouri law. Moreover, the Court found no prejudice from the admission of the
evidence, stating:
Even if evidence of the circumstances surrounding [Petitioner]’s arrest was
inadmissible, [Petitioner] failed to demonstrate he was prejudiced by its
admission at trial. First, the evidence did not connect [Petitioner] to the crimes for
which he was on trial, as [Petitioner] was standing trial for second-degree murder,
first-degree robbery, and armed criminal action, not for drug possession. See State
v. Bolds, 11 S.W.3d 633, 639 (Mo. App. E.D. 1999); cf. State v. Miller, 821
S.W.2d 553, 555 (Mo. App. E.D. 1991) (holding that evidence of prior acts of
unconvicted misconduct is especially prejudicial where the alleged prior bad acts
are similar to the case on trial).
Furthermore, given the number of prior crimes that were admissible
against [Petitioner], [Petitioner] fails to demonstrate how he was prejudiced by
evidence that, at the time of his arrest, he had in his possession what appeared to
be cocaine. See, e.g., Worthington v. State, 166 S.W.3d 566, 582 (Mo. banc
2005). Specifically, [Petitioner] testified that, since 1999, he had pleaded guilty to
second-degree robbery, felonious restraint, three counts possession of heroin, two
counts possession of a cocaine base, one count possession of drug paraphernalia,
two counts possession of diazepam, one count possession of alprazolam, and a
federal charge of felon in possession of a weapon. [Petitioner] also testified about
time he had served in prison and long-term drug treatment programs. In light of
[Petitioner]’s lengthy criminal record and history of drug possession, we do not
believe that the evidence of circumstances surrounding his February 29, 2008
arrest was so prejudicial as to require reversal.
Resp’t Ex. B, at pp. 16-17. The Missouri Court of Appeals’ analysis was reasonable. In light of
the lack of connection between the charged crimes and the cocaine possession, as well as the
admissibility of numerous other past crimes committed by Petitioner, Petitioner cannot show that
there is a reasonable probability that the admission of this evidence affected the outcome of the
trial.
For all of the above reasons, Petitioner is not entitled to relief on Ground Four.
E. Ground Five: Failure to Permit Presentation of Evidence that Ronald Had
Shot a Gun at His Girlfriend, Peaches, the Day Before the Offense
In Ground Five, Petitioner argues that the trial court erred by not allowing Petitioner the
opportunity to present evidence that, a day before the offense, Ronald had shot a gun at his

16

girlfriend, Peaches. Petitioner presented this argument in his direct appeal, and it was denied on
the merits. See Resp’t Ex. B, at pp. 17-19.
As with Ground Four, to the extent that Petitioner’s claim is that the trial court erred in
ruling on an evidentiary matter, this claim is not cognizable for purposes of habeas review. “The
exclusion of a witness based on state evidentiary rules results in the denial of due process only if
there was an impropriety so egregious that it made the entire proceeding fundamentally unfair.”
Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007). To satisfy this standard, a habeas
petitioner must show that “absent the alleged impropriety the verdict probably would have been
different.” Id
Petitioner also suggests in his reply brief that the exclusion of this evidence violated his
constitutional right to present a complete defense. It is well established that the Constitution
“guarantees criminal defendants a meaningful opportunity to present a complete defense.”
Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (quoting Crane v. Kentucky, 476 U.S. 683
(1986)). However, “the right to present relevant testimony is not without limitation. The right
may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial
process.” Michigan v. Lucas, 500 U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483 U.S. 44,
55 (1987)). “An accused ‘does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’” Khaalid v.
Bowersox, 259 F.3d at 975, 978 (8th Cir. 2001) (quoting Taylor v. Illinois, 484 U.S. 400, 410
(1988)). A trial court may, without violating the Constitution, exclude defense evidence that is
repetitive, is only marginally relevant, or poses an undue risk of harassment, prejudice, or
confusion of the issues. Garcia v. Mathes, 474 F.3d 1014, 1017 (8th Cir. 2007) (citing Holmes v.
South Carolina, 547 U.S. 319, 326-27 (2006))

17

In reviewing this claim, the Missouri Court of Appeals stated:
[Petitioner] claims the trial court erred in sustaining the State’s objections
and excluding evidence that, a few days prior to Victim’s murder, Ronald shot a
gun at his girlfriend, Peaches. [Petitioner] contends he was entitled to present this
evidence to show the jury that Ronald had a motive to shoot Victim other than
robbery and to show that Ronald’s argument with [Victim] about [Peaches] was
not just a ruse to rob [Victim].”
During [Petitioner]’s cross-examination of Vedo, defense counsel asked
the trial court’s permission to question Vedo about an incident several days before
the murder in which Ronald shot at Peaches and Vedo told him to stop shooting.
Defense counsel explained that both the State and counsel for Ronald had
presented evidence that there were no problems between Ronald and Vedo, and
the State was insinuating that Ronald’s argument with Victim about Peaches was
a ruse to lure him out of the apartment and rob him. Defense counsel believed this
evidence would have supported the defense’s theory that Ronald shot Victim
because of a conflict involving Victim and Peaches and not for the purpose of
robbing him. The trial court did not allow the evidence because it was “tangential
and collateral,” but did permit defense counsel to make an offer of proof.
As previously stated, trial courts have broad discretion to admit or exclude
evidence at a trial, and a reviewing court will reverse only upon a showing of a
clear abuse of discretion. State v. Sanchez, 186 S.W.3d 260, 264 (Mo. banc 2006).
We review a trial court’s decision to exclude evidence for prejudice, not just
error, and will reverse only if the error was so prejudicial that it deprived the
defendant of a fair trial. State v. Speaks, 298 S.W.3d 70, 80-81 (Mo. App. E.D.
2009). Trial court error is not prejudicial unless there is a reasonable probability
that the trial court’s error affected the outcome of the trial. State v. Johnson, 207
S.W.3d 24, 42 (Mo. banc 2006). “Although there is a rebuttable presumption that
excluded admissible evidence is prejudicial, this presumption is rebutted when the
error is harmless beyond a reasonable doubt.” State v. Norman, 145 S.W.3d 912,
920 (Mo. App. S.D. 2004).
Even if we assume arguendo that the trial court erred in excluding
evidence that Ronald fired a gun at Peaches days before Victim’s murder, such
error was harmless beyond a reasonable doubt. First, [Petitioner]’s claim that this
alleged incident in any way related to Victim is pure speculation. Second,
evidence that Ronald might have harbored hostility toward Victim does not refute
the evidence that Ronald and codefendants intended to rob Victim. Financial
motivation and enmity are not mutually exclusive motives, and there was
considerable evidence introduced at trial to establish that codefendants used
physical force to overcome resistance to the taking of his money. Specifically, the
codefendants knew that Victim dealt drugs and generally carried cash in his
pockets, and as soon as Ronald shot victim and pulled him down the stairs,
[Petitioner] and Vaughn searched his pants pockets, leaving them empty.
Resp’t Ex. B, at pp. 17-19 (footnote omitted).

18

The Missouri Court of Appeals’ rejection of this claim was not contrary to, or an
unreasonable application of, clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceeding. The
state court reasonably found that the trial court was within its discretion in not permitting the
admission of this evidence because it was tangential and collateral, in that the earlier shooting
directed at Peaches was not clearly related to the victim who was robbed and murdered. The trial
court may exclude defense evidence that is only marginally relevant without violating the
defendant’s right to present a complete defense. See Garcia, 474 F.3d at 1017-18. The Missouri
Court of Appeals reasonably determined that that is what occurred here.
The state court’s determination that the exclusion of this evidence was not prejudicial,
and that its admission would not have changed the outcome of the trial, was also reasonable. As
the state court found, even assuming that Ronald had hostility toward the victim, that would not
have shown an absence of intent to rob him, because hostility and intent to rob are not mutually
exclusive and because the evidence showed that codefendants went through the victim’s pants
pockets immediately after the shooting. The Missouri court’s conclusion is not contrary to, or an
unreasonable application of, clearly established federal law, nor did it involve an unreasonable
determination of the facts.
For all of the above reasons, Petitioner is not entitled to relief on Ground Five.
F. Grounds Six Through Ten and Ground Fourteen: Ineffective Assistance of
Counsel
In Grounds Six through Ten and Ground Fourteen, Petitioner asserts various claims of
ineffective assistance of counsel. 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, Petitioner must show both that “[his] counsel’s
19

performance was deficient” and that “the deficient performance prejudiced [his] defense.” 466
U.S. at 687; see also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To
show deficient performance, 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 (citation and internal quotation marks
omitted). To show 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.
When 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.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, 131 S. Ct 1388, 1410 (2011)). 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, 535 U.S. at 698-99. “Rather, he must show that the [state
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at
699.
1. Ground Six: Ineffective Assistance of Appellate Counsel—Failure to
Appeal Trial Court’s Admission of Prior Consistent Statements of Avedou
In Ground Six, Petitioner argues that his appellate counsel was ineffective based on the
failure to appeal the trial court’s admission of the prior consistent statements of Avedou.
20

Petitioner raised this claim in his motion for post-conviction relief and in the appeal from the
denial of that motion, and the Missouri Court of Appeals denied the claim on the merits. See
Resp’t Ex. G, at pp. 2-6.
At trial, Avedou testified that he heard the victim say something like, “Ronald, you
tripping, man,” that he heard a gunshot, and that he ran to the scene and saw Ronald holding a
gun in one hand and holding the victim’s shirt in his other hand. Resp’t Ex. I, at Tr. 565-66, 56869. He also testified that he saw Carlos and Petitioner going through the victim’s pockets. Id. at
Tr. 571-72. Avedou testified that he called 911 and told the operator that someone had been shot
but that he did not know who had been shot. Id. at Tr. 573-74. Avedou testified that when police
showed up, he told them that he did not know what had happened and just knew that someone
had been shot. Id. at Tr. 576-78, 580. At some point later that night, the police contacted Avedou
by phone, and Avedou told him what happened, including that Ronald shot the victim. Id. at Tr.
583-84. Four days later, Avedou went to the police station and told the police what Ronald had
done, as well as what Avedou had seen Carlos Vaughn and Petitioner do. Id. at Tr. 586.
On cross-examination, the defense attempted to impeach Avedou with his prior
statements that were inconsistent with his trial testimony: his statement to the 911 operator that
he did not know who had shot the victim, and his statement to the detective who arrived at the
scene that he did not know what had happened and just knew that someone had been shot. Id. at
629-31, 674, 680-682. The defense also pointed out that in the 911 call, Avedou had not said
anything about a robbery. Id. at Tr. 674.
On re-direct examination, the prosecutor emphasized that Avedou’s purpose in dialing
911 was to get ambulance help and that Avedou initially told the police he did not know

21

anything because a lot of people were around and he did not want them to know that he
cooperated with the police. Id. at Tr. 718-20.
After Avedou’s testimony, the trial court had a sidebar concerning the State’s desire to
introduce prior statements Avedou had made to his sisters, Marnesa and Cyntoria, that were
consistent with the statement he gave at the police station and at trial. Id. at Tr. 739. The State
wanted to introduce those statements to rebut an argument that Avedou had recently fabricated
his trial testimony and to rehabilitate him from statements that he did not know what had
happened. Id. at Tr. 739-40. After hearing arguments from counsel on both sides, the trial court
permitted Avedou’s sisters to testify. Id. at Tr. 739-46. Marnesa testified that just after the
shooting, Avedou had called her and told her that Ronald shot the victim. Id. at Tr. 753. Marnesa
also testified that at the scene, Avedou whispered to her, “Ron killed L.” Id. at Tr. 754. Marnesa
also testified that the same night, after Avedou talked to the police at the scene, Avedou told her
that Ronald had shot L and that Poolock (Petitioner) and Carlos were in his pockets. Id. at Tr.
758-59. Cyntoria testified that at the scene, she overheard a conversation between Avedou and
Marnesa in which Avedou stated that Ronald shot the victim. Resp’t Ex. J, at Tr. 806.
The Missouri Court of Appeals found that Petitioner could not establish that his direct
appeal counsel was ineffective for failing to raise, on direct appeal, the question of the
admissibility of Avedou’s prior consistent statements. The Missouri Court of Appeals found that
Petitioner had not established either the deficient performance prong or the prejudice prong of
Strickland, because he could not show that the testimony about his prior consistent statements
would have been inadmissible under Missouri law, nor could he show a reasonable probability
that his convictions would have been reversed had his appellate counsel raised this issue in his
direct appeal. Resp’t Ex. G, at pp. 5-6. The court first noted that under Missouri law, “[p]rior

22

consistent statements are admissible for the purpose of rehabilitating a witness whose credibility
has been attacked by an express or implied claim of recent fabrication of trial testimony” and that
“[s]tatements consistent with trial testimony given before the corrupting influence to falsify
occurred are relevant to rebut a claim of contrivance.” Id. at pp. 5-6. The court found that the
defense had clearly indicated that Avedou’s testimony was a recent fabrication and attempted to
impeach him with his prior statements to the 911 operator and to police. Id. at p. 6. The Court
also noted that Avedou told Marnesa that Ronald had killed the victim before Ronald spoke to
the police. Id. With regard to the claim of improper bolstering, the court found that there was no
improper bolstering here, because the prior statements were not offered solely to duplicate or
corroborate trial testimony, but rather to rehabilitate testimony in light of insinuations that it had
been fabricated. Id.
The Missouri Court of Appeals’ denial of Petitioner’s ineffective appellate counsel claim
was not contrary to, or an unreasonable application of, clearly established federal law, nor did it
involve an unreasonable determination of the facts. As a preliminary matter, the Court notes that
the Eighth Circuit has noted:
When appellate counsel competently asserts some claims on a defendant’s
behalf, it is difficult to sustain a[n] ineffective assistance claim based on
allegations that counsel was deficient for failing to assert some other claims.
Because one of appellate counsel’s important duties is to focus on those
arguments that are most likely to succeed, counsel will not be held to be
ineffective for failure to raise every conceivable issue. Generally, only when
ignored issues are clearly stronger than those presented, will the presumption of
effective assistance of counsel be overcome.
Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006) (quotation marks and citations omitted).
Here, Petitioner’s direct appeal counsel did raise five claims on Petitioner’s behalf. Petitioner has
not shown that this claim is clearly stronger than those five claims.

23

Petitioner’s arguments are focused on his contention that—contrary to the finding the
Missouri Court of Appeals made in denying his ineffective assistance claim—some or all of
Avedou’s prior consistent statements were inadmissible under Missouri law. 3 To the extent that
Petitioner is arguing that the Missouri Court of Appeals erred in its interpretation of Missouri
law, the Court notes that it may not second-guess the determination of a Missouri court
concerning a matter of Missouri law. See Arnold, 675 F.3d at 1086.
Moreover, even if some or all of Avedou’s prior consistent statements should have been
excluded under Missouri law, Petitioner has not shown that the Missouri Court of Appeals’
determination with regard to the prejudice prong of Strickland was objectively unreasonable. The
Missouri Court of Appeals found that Petitioner “cannot show that there was a reasonable
probability that he would have been found not guilty had the statements not been admitted.”
Resp’t Ex. G-5. Because these statements were, at most, cumulative of Avedou’s testimony, the
state court’s finding was not objectively unreasonable in light of the record.
For all of the above reasons, Petitioner is not entitled to relief on Ground Six.
2. Ground Seven: Ineffective Assistance of Trial Counsel—Failure to Object
to Questioning of Detective Jackson With Regard to Statements Made to
Him by Shante Jennings
In Ground Seven, Petitioner argues that his trial counsel rendered ineffective assistance
when she failed to object to the questioning of Detective Jerome Jackson with regard to
statements made to him by Shante Jennings about the case when it was known that Jennings
would not testify. Petitioner raised this claim in his motion for post-conviction relief and in his
appeal from the denial of the motion, and the Missouri Court of Appeals rejected it on the merits.
Resp’t Ex. G, at pp. 6-8.
3

Petitioner also argues that these statements are inadmissible under Federal Rule of Evidence
801; however, that rule does not apply to proceedings in Missouri state courts.
24

During opening statements, the prosecutor told the jury that it would hear from Shante
Jennings, Avedou’s girlfriend. Resp’t Ex. I, at Tr. 511. The prosecutor stated that Jennings would
testify that she saw Ronald take out a gun and follow the victim upstairs; that she heard the
gunshot; that she saw the victim get pulled out onto the porch; and that she saw Carlos Vaughn
roll the victim over and check one side of his pockets; and that she saw Petitioner check the other
side of his pants pockets, take out money and marijuana, and hand the marijuana to Carlos
Vaughn. Id. at Tr. 514-15. However, the prosecution later informed the trial court that it had
been unable to locate Jennings to testify at trial, despite the trial court issuing a body attachment
for her, despite her having been served, and despite the fact that the prosecutor had people out
looking for her. Resp’t Ex. J, at Tr. 911. The prosecutor subsequently presented testimony from
Detective Jerome Jackson, a detective who responded to the scene of the incident at issue in this
case, who testified that he had interviewed Shante Jennings as a potential witness in the case and
obtained her statement. Id. at Tr. 937-38. Detective Jackson did not testify about the contents of
her statement. Petitioner’s counsel stated that she had no problem with this line of questioning.
Id. at Tr. 937.
Petitioner argues that trial counsel was ineffective for not objecting to this line of
questioning because the testimony served no purpose other than to rehabilitate the state’s
opening argument regarding what Jennings had seen; that Petitioner was never afforded the
opportunity to cross-examine Jennings on the hearsay statements made in opening statement; and
that the jury was influenced by this line of questioning because it gave credence to the statements
made in opening argument. In affirming the motion court’s denial of this claim, the Missouri
Court of Appeals stated:
The motion court found the State expected Jennings to appear. She was
contacted by phone and was served. When she did not appear, a body attachment
25

was issued for her. The motion court noted that the State wanted to have its
investigator testify regarding the efforts to find her, but [Petitioner]’s counsel was
concerned such testimony would leave the jury with the impression that she had
been threatened. The trial court decided she could be called as a rebuttal witness,
but no inferences could be argued from her absence. The motion court found
[Petitioner]’s claim was without merit because there was nothing to indicate the
State’s statements regarding Jennings during opening statements were in bad
faith, and the jury was instructed that opening statements are not evidence.
Further, the motion court found Detective Jackson’s statements were neutral with
regard to the content of Jennings’ statement.
Detective Jackson’s statement did not address the content of Jennings’
statement. [Petitioner] has failed to show how he was prejudiced by Detective
Jackson’s testimony.
Therefore, we find the motion court did not clearly err in denying
[Petitioner]’s 29.15 motion for post-conviction relief because his trial counsel was
not ineffective for failing to object to the questioning of Detective Jackson
regarding a statement made to him by Jennings. Point denied.
Resp’t Ex. G, at pp. 7-8.
The Missouri Court of Appeals did not apply Strickland to the facts of his case in an
objectively unreasonable manner. It was entirely reasonable for the court to find that the
admission of Detective Jackson’s testimony was not prejudicial to Petitioner, given that the
prosecution did not elicit from Detective Jackson any testimony whatsoever about the content of
Jennings’ statements and given that the jury was instructed that statements made by counsel are
not evidence. The record does not indicate that there is a reasonable probability that, but for trial
counsel’s failure to object to that evidence, the result of the proceeding would have been
different.
Petitioner argues that he has shown prejudice because during deliberations, the jury asked
the trial court the following question: “In the robbery charge, if marijuana, crack or other items
are stolen, is it still considered robbery?” Petitioner argues that this question shows that the jury
was influenced by the prosecution’s statements about how Shante Jennings would testify—
statements Petitioner argues were bolstered by Detective Jackson’s testimony. The Court

26

disagrees. It is unclear why the jury would have needed to ask this question if they were relying
on the prosecution’s statements about Shante Jennings’ testimony, because the prosecutor stated
that Shante Jennings would testify that she saw Petitioner take out both marijuana and money. In
addition, there was other testimony presented that the victim sold marijuana, Resp’t Ex. I, at Tr.
541-42, and the jury may have been influenced by that testimony.
Petitioner also argues that the state court’s determination of the facts was unreasonable,
because in addressing Petitioner’s argument in a related claim—that trial counsel was ineffective
for not requesting a mistrial when it became apparent that Jennings was not going to appear—the
motion court stated, “The Court notes that Avedou testified that [Petitioner] went through
victim’s pockets and took items.” Resp’t Ex. E, at p. 9. As Petitioner correctly points, out, this
statement was incorrect: Avedou actually testified only that he saw Petitioner go through the
victim’s pockets; he did not see Petitioner take anything. Resp’t Ex. I, at pp. 571-72, 701.
However, the Court does not find that this error undermines the state court’s decision. The
Missouri Court of Appeals, in its summary of the facts relevant to this claim, did not repeat this
error. It instead found no prejudice because Detective Jackson’s testimony did not address the
content of Jennings’ statement. Resp’t Ex. G, at p. 7. That determination was reasonable.
For all of the above reasons, Petitioner is not entitled to relief on Ground Seven.
3. Ground Eight: Ineffective Assistance of Trial Counsel—Failure to Cure
Damage Done to the Defense by the State’s Opening Statement Promising
the Testimony of Shante Jennings
Ground Eight is closely related to Ground Seven. In Ground Eight, Petitioner argues that
his trial counsel was ineffective because she failed to cure the damage done to the defense by the
prosecutor’s opening statement indicating that Shante Jennings would testify that just after the
shooting, she saw Petitioner check the victim’s pants pockets, take out money and marijuana,

27

and give it to his co-defendant. Petitioner argues that his trial counsel should have requested a
continuance, curative instruction, or mistrial, or should have argued the facts in closing
argument. Petitioner raised this issue in his motion for post-conviction relief and in his appeal
from the denial of that motion, and it was denied on the merits. Resp’t Ex. G, at pp. 8-9.
In addressing this claim, the Missouri Court of Appeals stated:
The motion court found there was nothing to indicate the State’s
statements regarding Jennings during opening statements were in bad faith, and
the jury was instructed that opening statements are not evidence. Further, the
motion court found Detective Jackson’s statements were neutral with regard to the
content of Jennings’ statement. In addition, the motion court noted the decision
whether to highlight during closing argument the fact that Jennings had not
testified was a matter of trial strategy and could have been harmful depending on
the inferences the jury may have drawn from her absence. Lastly, the motion
court noted a mistrial would not have been warranted here, and it did not believe
the jury’s question regarding the items stolen demonstrated that the reference to
Jennings in the opening statement had a decisive effect on the trial.
The allegation that counsel gave an ineffective closing argument is a
matter of trial strategy which does not provide a basis for post-conviction relief.
State v. Hamilton, 791 S.W.2d 789, 797 (Mo. App. E.D. 1990). Further,
[Petitioner] cannot show he was prejudiced because the jury was told opening
statements were not part of the evidence in the case.
We find the motion court did not clearly err in denying [Petitioner]’s
29.15 motion for post-conviction relief because his trial counsel was not
ineffective for failing to cure the alleged damage done by the State’s opening
statement that promised testimony from Jennings and told the jury what the
testimony would be. Point denied.
Resp’t Ex. G, at pp. 8-9.
The Missouri Court of Appeals’ decision did not involve an objectively unreasonable
application of Strickland. Trial counsel’s decision not to bring up the topic of Shante Jennings,
either through a statement in closing argument or by requesting a curative instruction, was a
reasonable trial strategy, particularly in light of the fact that the prosecution’s description of her
testimony was unfavorable to Petitioner and in light of the possibility that the jury might have
inferred from her absence that she had been intimidated or otherwise persuaded not to testify. In

28

addition, it was not unreasonable for the state court to find that, in light of the instruction to the
jury that opening statements were not part of the evidence, Petitioner was not prejudiced by trial
counsel’s failure to take additional steps to attempt to address the possible damage done by the
opening statements.
Petitioner also argues that he was prejudiced because had Jennings testified (after a
continuance or mistrial), her testimony could have been used to impeach Avedou’s testimony,
because Avedou testified that Petitioner and Carlos started going into the victim’s pockets when
he was standing, whereas Jennings testified in her deposition that the victim had fallen face down
and had to be rolled over before his pockets were gone through. However, the potential value to
Petitioner of that impeachment testimony would have been outweighed by the negative impact of
having Jennings testify that she saw Petitioner going through the victim’s pockets and taking out
money and marijuana. Thus, even assuming that a motion for a continuance or a mistrial would
have led to a situation in which Jennings could have testified, Petitioner cannot show that it
would have changed the outcome of the trial.
Petitioner also reiterates the arguments he made with respect to Ground Seven that the
question the jury posed to the Court regarding the items stolen shows prejudice, and that the
motion court’s mischaracterization of Avedou’s testimony undermines its decision. Those
arguments are without merit for the reasons stated above.
In his Reply, Petitioner argues that the state must have known that Jennings was not
going to testify, because during voir dire, the prosecutor asked jurors whether they could convict
someone of murder based on the testimony of a single witness with prior convictions. See Resp’t
Ex. I, at Tr. 383-390. This questioning does not establish knowledge that Jennings would not
testify. The prosecution may simply have been concerned that another of its witnesses might

29

become unavailable or that one of its witnesses might be disbelieved. Moreover, even assuming
that Petitioner could show that the prosecution knew Jennings would not be available, Petitioner
cannot show that his counsel’s failure to request a continuance, mistrial, or curative instruction or
to discuss this matter in closing argument resulted in prejudice to him.
For all of the above reasons, Petitioner is not entitled to relief on Ground Eight.
4. Ground Nine: Ineffective Assistance of Trial Counsel—Failure to Pursue
Green’s Motion to Suppress In-Court Identification
In Ground Nine, Petitioner argues that his trial counsel was ineffective because she failed
to pursue Petitioner’s motion to suppress witnesses’ in-court identifications of him. 4 Petitioner
asserts that trial counsel should have pursued a motion to suppress the identifications because
there had not been a prior identification procedure and because the witnesses did not give a
description of the perpetrator at the time of the murder. Petitioner raised this claim in his motion
for post-conviction relief and in the appeal from the denial of his motion for post-conviction
relief, and it was denied on the merits. See Resp’t Ex. G, at pp. 9-11.
In assessing this claim, the Missouri Court of Appeals stated:
At trial, Avedou testified he became familiar with [Petitioner] because he
saw him talking to Carlos and Ronald everyday for a few weeks. Avedou then
identified [Petitioner] in court based on his familiarity with him. Avedou also
testified he saw [Petitioner] going into the victim’s pockets after he had been shot.
Cyntoria also testified the night of the shooting, Ronald and [Petitioner]
came to her house. Cyntoria testified she had seen [Petitioner] before and knew
what he looked like. Cyntoria then identified [Petitioner] in court. . . .
Here, the objections [Petitioner] complains his counsel failed to make
cannot be the basis of a claim for ineffective assistance of counsel because they
had no merit. Movant asserts no factual reason the identifications should have
been excluded. Movant made no claim of impermissibly suggestive police
procedures. Where, as here, a movant’s arguments do not involve a claim of
4

Petitioner’s counsel did file a motion to “suppress all testimony by any witness in this cause
regarding the identification (via photo lineup, live line up or photo of live line up) of
[Petitioner].” Resp’t Ex. L, at p. 17. However, Petitioner’s counsel did not present this motion at
the pre-trial conference. See Resp’t Ex. G, at p. 9.
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impermissible suggestiveness on the part of the police, but rest entirely on factors
relating solely to the reliability of the identification made by a particular witness
or witnesses, he has no valid basis for arguing that the witness’ identification
testimony should have been suppressed, because any such factors go only to the
weight of the testimony, not its admissibility.
Therefore, the motion court did not clearly err in denying his 29.15 motion
for post-conviction relief because his trial counsel was not ineffective for failing
to pursue Movant’s motion to suppress in-court identification and request a ruling.
Id.
The Missouri Court of Appeals’ decision did not involve an objectively unreasonable
application of Strickland and was not contrary to, or an unreasonable application of, clearly
established federal law. As Petitioner points out, a conviction based on eyewitness identification
will be set aside as violating due process when it is based on pretrial identification procedures
that “were so impermissibly suggestive that they give rise to a very substantial likelihood of
irreparable harm.” Tevino v. Dahm, 2 F.3d 829, 833 (8th Cir. 1993). However, Petitioner does
not identify any impermissibly suggestive pretrial identification procedures here. Petitioner also
cites no legal authority to suggest that the absence of a particular pretrial identification procedure
requires exclusion of eyewitness identification.
Petitioner also appears to suggest that the in-court identification was impermissibly
suggestive and unreliable because he was the only male of his race (other than Ronald) seated at
the defense counsel table. However, even assuming, arguendo, that such a situation could render
an in-court identification so suggestive or unreliable that admission of the identification would
violate due process, the record does not support a finding that it did so in this case. Both Avedou
and Cyntoria testified that they were personally familiar with Petitioner before the crime at issue
occurred, and they identified him based on their personal recognition of him. See Resp’t Ex. I, at
Tr. 549-51; Resp’t Ex. J, at Tr. 808, 812. Because Petitioner has not offered any reason to

31

believe that these identifications were inadmissible, trial counsel did not render deficient
performance by failing to object to their admission, nor was Petitioner prejudiced by that failure.
For all of the above reasons, Petitioner is not entitled to relief on Ground Nine.
5. Ground Ten: Ineffective Assistance of Trial Counsel—Failure to
Investigate and Challenge the Validity of Petitioner’s Arrest and to Move to
Suppress Evidence Obtained After the Arrest
In Ground Ten, Petitioner argues that his trial counsel was ineffective based on a failure
to investigate Petitioner’s arrest and to move to suppress all evidence obtained after that arrest.
Petitioner raised this claim in his motion for post-conviction relief and in the appeal from the
denial of that motion, and the claim was denied on the merits. See Resp’t Ex. G, at pp. 11-12. In
denying Petitioner’s claim, the Court of Appeals stated, “The fact that [Petitioner]’s counsel
failed to challenge the legality of the arrest is irrelevant. [Petitioner] could only have been
prejudiced if evidence was admitted as a result of the illegal arrest. [Petitioner] fails to identify
any such evidence and we can find none in the record.” Id.
Although it is somewhat unclear from the Petition, it appears that Petitioner is asserting
that his arrest was illegal because it was not based on probable cause, and that his trial counsel
should have attempted to suppress statements he made after his arrest. Specifically, Petitioner
notes that, at the time of his arrest, he made a statement that he was not present when the murder
occurred. See Resp’t Ex. J, at Tr. 1118-1119. He points out that on cross-examination, the
prosecutor used that statement to impeach Petitioner’s testimony at trial that he was present at
the time of the murder but was not involved in it. Id. at Tr. 1150. He also points out that, during
closing argument, the prosecution pointed out that in his first statement to the police, he had said,
“I’m not in the area that night,” which contradicted his trial testimony. Id. at Tr. 1341-42.

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After review of the record, the Court finds that the Missouri Court of Appeals’
determination involved a reasonable application of Strickland. Assuming, arguendo, that
Petitioner’s arrest was illegal and that his trial counsel should have moved to suppress his
statement to the police that he was not in the area the night of the murder, Petitioner cannot show
that he was prejudiced by trial counsel’s failure to move to suppress. At most, the admission of
this statement undermined Petitioner’s credibility by showing that he had at one point lied to
police about the night in question. It did not undermine the primary evidence on which Petitioner
was convicted—Avedou’s testimony about what he saw Ronald, Carlos, and Petitioner doing.
The Court further notes that the prosecutor impeached Petitioner’s credibility on other bases,
such as his prior convictions. Id. at Tr. 1341. Petitioner cannot show that there is any reasonable
possibility that the suppression of this one statement, used only for impeachment purposes,
would have changed the outcome of the trial. Thus, he cannot show prejudice under Strickland.
For the reasons stated above, Petitioner is not entitled to relief on Ground Ten.
6. Ground Fourteen: Ineffective Assistance of Trial Counsel—Cumulative
Errors
In Ground Fourteen, Petitioner argues that his trial counsel was ineffective because of a
combination of errors: trial counsel’s failure to object to the questioning of Detective Jackson
about the statements made to him by Shante Jennings; trial counsel’s failure to cure the damage
done by the State’s description of Shante Jennings’ statements during its opening statement; and
trial counsel’s failure to pursue Petitioner’s motion to suppress identification or to object to the
in-court identifications of Petitioner. Petitioner did not raise this claim in his amended motion for
post-conviction relief. See Resp’t Ex. D. Petitioner did raise it on appeal from the denial of his
post-conviction motion, Resp’t Ex. F, at pp. 46-48.

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The Missouri Court of Appeals denied the claim as procedurally barred because
Petitioner failed to raise it in his amended motion for post-conviction relief. Resp’t Ex. G, at p.
13. The Court also held that assuming, arguendo, that it was not procedurally barred, the claim
was without merit because “numerous non-errors cannot add up to error.” Id.
Federal courts may generally not grant habeas relief where a prisoner has defaulted his
federal claims in state court pursuant to an adequate and independent state procedural rule.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). See also Wooten v. Norris, 578 F.3d 767, 777
(8th Cir. 2009) (“Federal courts may not grant habeas relief based on procedurally defaulted
claims if the state court’s reason for finding default rests on adequate and independent state
grounds.”); Collier v. Norris, 485 F.3d 415, 425 (8th Cir. 2007) (the adequate and independent
state law doctrine “applies to bar federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner had failed to meet a state procedural
requirement.”) (quoting Coleman, 501 U.S. at 729-30). To be adequate and independent, “[t]he
procedural rule relied upon by the state court must be ‘firmly established, regularly followed and
readily ascertainable when it was applied.”‘ Winfield v. Roper, 460 F.3d 1026, 1036 (8th Cir.
2006) (quoting Malone v. Vasquez, 138 F.3d. 711, 717 (8th Cir. 1998)). Here, the state court
declined to address this claim based on Petitioner’s failure to follow the state procedural
requirement that ineffective assistance claims be raised in a Rule 29.15 motion for postconviction relief. Petitioner does not dispute that this rule is firmly established, is regularly
followed, and was readily ascertainable when applied.
A federal habeas court will not consider a claim that was defaulted pursuant to an
independent and adequate state procedural rule unless the petitioner “can demonstrate cause for
the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate

34

that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman,
501 U.S. at 750. Petitioner does not attempt to make any showing of cause and prejudice, nor
does he argue that the fundamental miscarriage of justice exception applies. Thus, this Court may
not grant relief on this claim.
Moreover, even assuming, arguendo, that Petitioner’s claim was not procedurally barred,
it is without merit. “[A] habeas petitioner cannot build a showing of prejudice [in an ineffective
assistance claim] on a series of errors, none of which would by itself meet the prejudice test.”
Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (citing Wainwright v. Lockhart, 80 F.3d
1226, 1233 (8th Cir. 1996)). Accord Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006).
Because the Court has already found that Petitioner cannot succeed on any of these individual
claims of ineffective assistance of counsel, he cannot succeed on the claim of cumulative error.
For all of the above reasons, Petitioner is not entitled to relief on Ground Fourteen.
G. Grounds Eleven Through Thirteen: Prosecutorial Misconduct
In Grounds Eleven through Thirteen, Petitioner argues that his right to a fair trial was
violated due to several instances of prosecutorial misconduct. In Ground Eleven, Petitioner
argues that although the prosecutor knew that he had lost contact with his witness, Shante
Jennings, he withheld that information from the Court and the defense until the last day of the
state’s case, while using the witness’s statements during opening statements. In Ground Twelve,
Petitioner argues that the prosecutor argued facts not in evidence related to letters that Ronald
wrote to the police. In Ground Thirteen, Petitioner argues that the prosecution impermissibly
shifted the burden of proof to Petitioner during closing argument.
Petitioner did not raise any of these claims in his direct appeal. See Resp’t Ex. A, at pp.
18-24. He raised these claims in his amended motion for post-conviction relief. See Resp’t Ex.

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D, at pp. 9-11.The motion court considered the claims as one claim of prosecutorial misconduct
and declined to review the claim, stating:
This claim is not cognizable in a Rule 29.15 proceeding. Claims of
prosecutorial misconduct are generally grounds for direct appeal, and such a claim
may only be raised in a Rule 29.15 proceeding where the alleged misconduct was
serious and would not have been apparent during the trial. Tisius v. States, 183
S.W.3d 207, 212 (Mo. banc 2006); see also Reagan v. State, 751 S.W.2s 793, 795
(Mo. App. 1988). The facts alleged here were all readily apparent at the time of
trial and [Petitioner] has not stated any reason for why the claims were not raised
in his direct appeal.
Resp’t Ex. E, at pp. 11. In his appeal from the denial of the motion for post-conviction relief,
Petitioner raised his prosecutorial misconduct argument as part of ineffective assistance of
counsel claim rather than as a claim of prosecutorial misconduct. See Resp’t Ex. F, at pp. 41-46.
The Missouri Court of Appeals found the ineffective assistance claim procedurally barred
because Petitioner had not raised it in his amended motion for post-conviction relief. See Resp’t
Ex. G, at p. 12 (citing Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003)).
As discussed above, federal courts may generally not grant habeas relief where a prisoner
has defaulted his federal claims in state court pursuant to an adequate and independent state
procedural rule. See Coleman, 501 U.S. at 750; Wooten, 578 F.3d at 777; Collier, 485 F.3d at
425. Here, the state court declined to address the prosecutorial misconduct claims in Grounds
Eleven through Thirteen based on Petitioner’s failure to follow the state procedural requirement
that prosecutorial misconduct claims that were apparent at trial be raised in a direct appeal, not a
Rule 29.15 motion for post-conviction relief. Petitioner does not dispute that this rule is firmly
established, is regularly followed, and was readily ascertainable when applied. See Tisius v.
State, 183 S.W.3d 207, 212 (Mo. 2006) (”A freestanding claim of prosecutorial misconduct is
generally not cognizable in a Rule 29.15 proceeding. Rule 29.15 is not a substitute for direct
appeal. State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997). . . . If the alleged misconduct was
36

apparent at trial, then it is an issue for direct appeal, not a Rule 29.15 proceeding.”).
Petitioner asserts no basis for finding either cause or prejudice here to excuse the
procedural default. He also does not argue that the fundamental miscarriage of justice exception
applies. Accordingly, Petitioner is not entitled to relief on Grounds Eleven through Thirteen.
V.

CONCLUSION
For all of 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); Tiedman 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). The Court finds that this standard is not satisfied, so the Court will not issue a certificate
of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Doc. 30) 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.
A separate Judgment shall accompany this Memorandum and Order.

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SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 21st day of September, 2016.

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