Taylor v. Russell
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Jay Cassady is SUBSTITUTED for the originally named Respondent. IT IS FURTHER ORDERED that Chris Koster is ADDED as a Respondent. IT IS FURTHER ORDERED that Petitioner's request for an evidentia ry hearing is DENIED. IT IS FURTHER ORDERED that Petitioners Petition for Writ of Habeas Corpus 1 is DENIED. IT IS FURTHER ORDERED that the court will not issue a certificate of appealability. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Rodney W. Sippel on 9/22/16. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES N. TAYLOR,
JAY CASSADY and CHRIS KOSTER,1
) Case No. 4:13 CV 960 RWS
MEMORANDUM AND ORDER
Petitioner James N. Taylor seeks federal habeas relief from a state court judgment entered
after a jury trial. See 28 U.S.C. § 2254. For the reasons set forth below, the Petition and
Petitioner’s request for an evidentiary hearing will be denied.
The State of Missouri charged Petitioner, as a prior and persistent offender, with
committing on May 24, 2007, six felonies: forcible rape in violation of Mo. Rev. Stat. Section
566.030 (Count I); armed criminal action in violation of Mo. Rev. Stat. Section 571.015 (Count
II); forcible sodomy in violation of Mo. Rev. Stat. Section 566.060 (Counts III and IV);
kidnapping in violation of Mo. Rev. Stat. Section 565.110 (Count V); and, first-degree assault in
Petitioner notified the Court that he was transferred to the Jefferson City Correctional Center ("JCCC").
Jay Cassady is the Warden of the JCCC. Because Jay Cassady is the state officer having custody of Petitioner, the
Court substitutes Jay Cassady for the Respondent originally named in this habeas proceeding. See Rule 2(a) of the
Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rule”).
Additionally, the Court adds Chris Koster, the Attorney General of the State of Missouri, as a Respondent
because Petitioner is subject to consecutive sentences imposed by the trial court for the conviction he is challenging
in this federal habeas proceeding. See Habeas Rule 2(b).
violation of Mo. Rev. Stat. Section 565.050 (Count VI).2 These charges stemmed from an
incident occurring in the City of St. Louis, in which Petitioner assaulted V.W.3
At trial in April 2009, the State introduced as exhibits, among other items, a knife and a
box cutter seized at the crime scene;4 pictures of the crime scene;5 pictures of V.W. and of
Petitioner taken after the assault;6 Petitioner’s written consents to swab him for DNA material, as
well as the results of those swabs;7 and the results of V.W.’s examination at the hospital.8 The
State also presented the testimony of eight witnesses: V.W.; three investigating police officers;
two employees of the police department’s crime lab who prepared the DNA material for
examination and analyzed that material; and two nurses, one who had swabbed Petitioner for
DNA and one who had examined and cared for V.W.9 In addition to his testimony,10 Petitioner
introduced, among other exhibits, the parties’ stipulation that, prior to the incident, V.W. had
been diagnosed with and treated for schizophrenia.11
Indictm., filed July 24, 2007, Resp'ts Ex. P, Legal File at 17-19 [ECF No. 21-1 at 20-22].
See Indictm., filed July 24, 2007, Resp'ts Ex. P, Legal File at 17-19 [ECF No. 21-1 at 20-22].
Exhibits 55 and 57, Trial Tr., Resp'ts Ex. Q, at 296, 297, 349-52 [ECF No. 21-2 at 77, 78, 91].
Exhibits 1 through 27, Trial Tr., Resp'ts Ex. Q, at 291-92, 294, 346-52 [ECF No. 21-2 at 76, 77, 90-91].
Exhibits 28 through 50 and 51 through 54, Trial Tr., Resp'ts Ex. Q, at 363-64, 369-70, respectively [ECF
No. 21-2 at 94, 96, respectively.]
Exhibits 58, 58A through 58E, 60, 61, and 67, Trial Tr., Resp'ts Ex. Q, at 366-69, 373-77 [ECF No. 21-2
See, e.g., Exhibits 56, 56A, 56B, 65, and 66 sexual assault evidence collection kit and its contents, Trial
Tr., Resp'ts Ex. Q, at 364-65 and 384 [ECF No. 21-2 at 94-95 and 99] and Exhibit 68, a diagnostic imaging of
V.W.'s right ribs, Trial Tr., Resp'ts Ex. Q, at 408-09 [ECF No. 21-2 at 105-06].
Trial Tr., Resp'ts Ex. Q, at 257-436 [ECF No. 21-2 at 68-112].
Trial Tr., Resp'ts Ex. Q, at 439-73 [ECF No. 21-2 at 113-22].
Ex. E, Trial Tr., Resp'ts Ex. Q, at 406-08, 437-38 [ECF No. 21-2 at 105-06, 113].
V.W. testified that she knew Petitioner from the neighborhood and asked him to help her
move some large items out of her apartment. She let him in the apartment building through a
back entrance because he was “banned” from her building.12 She described the subsequent
night-time assault in her apartment as including Petitioner making her lick his chest, the use of
“Vaseline,” Petitioner placing his penis in V.W.’s vagina, and other conduct of a sexual nature;
Petitioner repeatedly beating V.W.’s head with his hands; Petitioner refusing to allow V.W. to
use the bathroom, and V.W. urinating and defecating on the floor; and Petitioner strangling V.W.
until she became unconscious.13 V.W. first reported the assault and rape to Officer Ernest
Greenlee of the St. Louis Metropolitan Police Department (“Department”), who was in the lobby
of her apartment building when she arrived after she awakened and crawled from her apartment
while Petitioner slept there.14 Officer Greenlee called an ambulance and described V.W. as
having “blood on her face, coming from her nose and mouth” and as appearing “like she was
pretty upset and afraid.”15
Michael Herzberg, a detective with the Department, observed at V.W.’s apartment a
knife, “an overturned bottle of petroleum jelly[, . . . a]nd a large brown stain on the carpet next to
some white towels.”16 After visiting the crime scene, Detective Herzberg talked with V.W. at
Trial Tr., Resp'ts Ex. Q, at 258-66 [ECF No. 21-2 at 68-70].
Trial Tr., Resp'ts Ex. Q, at 268-284, 295-97 [ECF No. 21-2 at 70-75, 77-78]; see also id. at 298-330
[ECF No. 21-2 at 78-86].
Trial Tr., Resp'ts Ex. Q, at 284-87, 331-343 [ECF No. 21-2 at 74-75, 86-89].
Trial Tr., Resp'ts Ex. Q, at 331-32, 334 [ECF No. 21-2 at 86-87].
Trial Tr., Resp'ts Ex. Q, at 357 [ECF No. 21-2 at 93].
the hospital.17 Detective Herzberg showed V.W. a photo array, and V.W. identified Petitioner as
the person who had assaulted her.18
Kathryn Howard, an emergency room nurse, completed a physical examination and a
sexual assault examination of V.W.19 In relevant part, Ms. Howard testified that V.W. had
“physical injuries” and “genital trauma.”20 More specifically, Ms. Howard’s examination of
V.W. revealed that V.W. had:
bleeding inside her vagina, as well as some abrasions inside her vagina, as well as
on her cervix . . .
[and m]ultiple abrasions, lots of bruises. [V.W.] had scleral hemorrhaging in her
eyes, which basically means that she had a lot of popped blood vessels in her
eyes. She had bruising all over her body. 21
During Detective Herzberg’s later interview of Petitioner at the police station, Petitioner
consented to the swabbing of his body for DNA material, and his cheeks, hands, and chest were
swabbed.22 Two employees of the Department’s Crime Lab, Jenna Oakes-Smith, a forensic
biologist, and Sarah Custis, a DNA analyst, testified about the preparation and testing of material
for DNA analysis.23 Ms. Custis stated she found, to a reasonable degree of scientific certainty, a
Trial Tr., Resp'ts Ex. Q, at 358 [ECF No. 21-2 at 93].
Trial Tr., Resp'ts Ex. Q, at 361-63 [ECF No. 21-2 at 94].
Trial Tr., Resp'ts Ex. Q, at 378-99 [ECF No. 21-2 at 98-103].
Trial Tr., Resp'ts Ex. Q, at 382 [ECF No. 21-2 at 99].
Trial Tr., Resp'ts Ex. Q, at 382-83 [ECF No. 21-2 at 99].
Testimony of Detective Herzberg and Susan Ries, a nurse, Trial Tr., Resp'ts Ex. Q, at 365-69 and 372-78
[ECF No. 21-2 at 95-98].
Trial Tr., Resp'ts Ex. Q at 409-35 [ECF No. 21-2 at 106-12].
mixture of Petitioner’s and V.W.’s DNA on a swab from Petitioner’s right breast.24
Additionally, she found no DNA of Petitioner on the box-cutter found in V.W.’s apartment, and
found insufficient information to make a conclusive determination about DNA, other than
V.W.’s DNA, on the handle of the knife found in V.W.’s apartment.25
The trial court denied Petitioner’s motions for acquittal at the close of the State’s
evidence and at the close of all the evidence,26 and, outside the presence of the jury, concluded
that Petitioner was a prior and persistent offender.27 The jury found Petitioner guilty of forcible
rape (Count I), kidnapping (Count V), and first-degree assault (Count VI); and not guilty of the
other three charged offenses, armed criminal action (Count II) and forcible sodomy (Counts III
and IV).28 After trial, the trial court denied Petitioner’s supplemented motion for acquittal or, in
the alternative, for a new trial.29 The trial court sentenced Petitioner, as a prior and persistent
offender, to a twenty-year term of imprisonment for forcible rape, to run consecutively to two
concurrent ten-year terms of imprisonment for kidnapping and first-degree assault.30
In his timely direct appeal, Petitioner challenged his conviction on the grounds the trial
court violated his right to due process under the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution by: (1) overruling his motion for judgment of acquittal on the
Trial Tr., Resp'ts Ex. Q, at 429-31 [ECF No. 21-2 at 111] .
Trial Tr., Resp'ts Ex. Q, at 431-35 [ECF No. 21-2 at 111-12].
Trial Tr., Resp'ts Ex. Q, at 436-37, 486 [ECF No. 21-2 at 112-13, 125].
Trial Tr., Resp'ts Ex. Q, at 400-02, 405 [ECF No. 21-2 at 103-05].
Verdicts, Legal File, Resp'ts Ex. P, at 60-65 [ECF No. 21-1 at 63-68].
Pet'r Mot., as supplemented, Legal File, Resp'ts Ex. P, at 66-70 (original motion), 71-72 (first
supplemental motion), and 73-74 (second supplemental motion) [ECF No. 21-1 at 69-73, 74-75, 76-77].
Trial Court J., Legal File, Resp'ts Ex. P, at 75-78 [ECF No. 21-1 at 78-81].
kidnapping charge on sufficiency grounds; and (2) overruling his objections to the State’s
leading questions during V.W.’s direct examination with respect to the allegations of forcible
rape.31 Petitioner also contended that the trial court violated his rights under the Fifth, Sixth, and
Fourteenth Amendments by overruling his objections to State voir dire questions that sought to
assess whether members of the jury panel were able to consider Petitioner’s guilt based on
testimony alone, despite the State’s intention to introduce physical evidence.32
The Missouri Court of Appeals affirmed the judgment, and described the circumstances
of the incident as follows:
On May 24, 2007, V.W. was in the process of moving out of her eighth
floor apartment because police had ordered her building to close. She stopped
packing in order to buy liquor at a convenience store, and encountered [Petitioner]
on her way home. The two knew each other in passing from the neighborhood,
and V.W. asked [Petitioner] to return to her apartment and help her move a desk.
[Petitioner] had been banned from V.W.’s building, so V.W. snuck him in the
back door to avoid the 24-hour police surveillance.
Once in her apartment, V.W. began drinking the brandy she had purchased
at the store. [Petitioner] told her to take her clothes off. V.W. testified that
[Petitioner] proceeded to punch her in the head repeatedly and strangle her,
causing her to suffer broken ribs and teeth and extensive hemorrhaging.
According to V.W.’s testimony, [Petitioner] raped her and tried to have oral and
anal sex with her, but was unable to climax. When V.W. lost control of her
bowels as a result of the beatings, she testified that [Petitioner] would not let her
use the bathroom. V.W. also testified that [Petitioner] made her lick his chest,
and threatened her with a knife. She eventually passed out and awoke later to find
[Petitioner] sleeping on the couch.
V.W. crawled to the door and made her way to the lobby via the fourth
floor elevator. She made contact with Officer Ernest Greenlee in the lobby at
approximately 6:30 a.m. Officer Greenlee observed blood on V.W.’s face and
requested an ambulance. When more officers arrived on the scene, they went to
V.W.’s apartment and found [Petitioner] sleeping naked on the floor. The officers
seized a hunting knife and box cutter from V.W.’s apartment, and took multiple
swabs from [Petitioner].
Pet'r Br., Resp'ts Ex. A, at 13-14, 16, 22 [ECF No. 14].
Pet'r Br., Resp'ts Ex. A, at 15, 26 [ECF No. 14].
V.W. went to the hospital where emergency room nurse Kathryn Howard
(“Howard”) performed a sexual assault exam. During the exam, Howard noticed
bleeding and abrasions on the inside of V.W.’s vagina in addition to other genital
trauma. Howard observed bleeding in V.W.’s eyes that was consistent with
State v. Taylor, No. ED93334, Opinion at 1-2 (Mo. Ct. App. filed May 4, 2010).33 After
Petitioner’s unsuccessful efforts to transfer the case to the Missouri Supreme Court, the Missouri
Court of Appeals issued its mandate on September 8, 2010.34
Following his direct appeal, Petitioner timely filed a pro se motion for post-conviction
relief (“PCR motion”) presenting seventeen ineffective-assistance-of-trial-counsel claims and a
claim that the State withheld certain evidence. Pet'r PCR Mot., filed Nov. 22, 2010.35 Through
appointed counsel, Petitioner filed an amended PCR motion, including a request for an
Pet’r Am. PCR Mot., filed Mar. 1, 2011.36
incorporated into his amended PCR motion all claims presented in his pro se PCR motion,37 and
set forth three additional claims that his trial attorney provided ineffective assistance of counsel
in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments. Id. at 3-8.38
Resp'ts Ex. B.
Pet'r Mot. Reh'g/Transfer, Resp'ts Ex. C [ECF No. 14]; Pet'r Appl. Transfer, Resp'ts Ex. D [ECF No.
14]; Denial of Pet'r Appl. Transfer, Resp'ts Ex. F [ECF No. 14]; Missouri Ct. Appeals' Mandate, filed Sept. 8, 2010,
Resp'ts Ex. E [ECF No. 14].
Resp'ts Ex. G [ECF No. 14]. Petitioner's pro se PCR motion is also available in the PCR Legal File,
Resp'ts Ex. N, at 3-50 [ECF No. 20-2 at 5-52].
Resp'ts Ex. H [ECF No. 14]. Petitioner's Amended PCR Motion is also available in the PCR Legal File,
Resp'ts Ex. N, at 60-144 [ECF No. 20-2 at 62-146].
Pet'r Am. PCR Mot., filed Mar. 1, 2011, PCR Legal File, Resp'ts Ex. N, at 62, 66-67 (ECF No. 20-2 at
Pet'r Am. PCR Mot., filed Mar. 1, 2011, PCR Legal File, Resp'ts Ex. N, at 63-66 [ECF No. 20-2 at 65-
For the first additional claim in his amended PCR motion, Petitioner contended his trial
attorney violated Petitioner’s rights to a fair and impartial jury, to the effective assistance of
counsel, to a fair trial, and to due process by failing to ask the trial court to question the jurors
individually to ascertain whether any of them slept during V.W.’s testimony. Id. at 4-5.39 Next,
Petitioner argued his trial attorney violated Petitioner’s rights to due process, to the effective
assistance of counsel, to present a defense, and to a fair trial by failing to object, to ask for an
instruction that the jury disregard, and to seek a mistrial on the grounds that the prosecutor
engaged in improper personalization during closing argument and argued facts not in evidence.
Id. at 5-6.40
Finally, Petitioner claimed that his trial attorney’s failure to object to V.W.’s
testimony that Petitioner was banned from V.W.’s building and to request a mistrial violated
Petitioner’s rights to due process, effective assistance of counsel, a defense, and a trial only on
the charged offenses. Id. at 7.41 After addressing the merits of each claim in Petitioner’s pro se
and amended PCR motion, the motion court denied Petitioner post-conviction relief without an
Pet'r Am. PCR Mot., filed Mar. 1, 2011, PCR Legal File, Resp'ts Ex. N at 63-64 [ECF No. 20-2 at 65-
With respect to his ineffective assistance of counsel claim based on an allegedly sleeping juror, Petitioner
also filed a motion requesting leave to contact jurors ("juror contact motion"). Pet'r Juror Contact Mot., filed March
1, 2011, PCR Legal File, Resp'ts Ex. N, at 55-59 [ECF No. 20-2 at 57-61].)
Pet'r Am. PCR Mot., filed Mar. 1, 2011, PCR Legal File, Resp'ts Ex. N, at 64-65 [ECF No. 20-2 at 66-
Pet'r Am. PCR Mot., filed Mar. 1, 2011, PCR Legal File, Resp'ts Ex. N, at 66 [ECF No. 20-2 at 68].
evidentiary hearing.42 Taylor v. Missouri, No. 1022-CC11847, Conclusions of Law and Order
(“motion court's judgment”), filed Feb. 3, 2012.43
Petitioner timely appealed the motion court’s judgment to the Missouri Court of Appeals.
In that appeal, Petitioner presented challenges to the motion court’s denial of the three additional
ineffective-assistance-of-trial-counsel claims that Petitioner had presented in his amended PCR
motion.44 The Court of Appeals affirmed the motion court’s judgment in a summary order
accompanied by a more detailed supplemental memorandum. Taylor v. State, No. ED98182,
Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b) (Mo. Ct. App.
filed Jan. 29, 2013) (per curiam).45
After discussing the two-pronged test articulated in Strickland v. Washington, 466 U.S.
668 (1984), the Missouri Court of Appeals rejected each of Petitioner’s points on appeal. Taylor
v. State, No. ED98182, Supp. Mem. at 3-8. In regard to Petitioner’s first point, challenging his
trial attorney’s failure to ask the trial court to individually question jurors about whether a juror
slept during V.W.’s testimony, the Court of Appeals concluded Petitioner had neither overcome
the strong presumption that the challenged conduct was reasonable trial strategy nor sufficiently
alleged prejudice resulting from his attorney's challenged conduct. Id. at 3-5. The court rejected
Petitioner’s second point, regarding closing argument, explaining that an attorney is not
ineffective for failing to make a non-meritorious objection and the challenged argument neither
In addressing Petitioner's juror contact motion, the post-conviction motion court concluded "contact with
members of the jury is not necessary" because Petitioner was not entitled to a hearing or relief on his ineffective
assistance of counsel claim regarding a sleeping juror. Mot. Ct.'s J., filed Feb. 3, 2012, Resp'ts Ex. I, at 2 [ECF No.
Resp'ts Ex. I [ECF No. 14]. The motion court's judgment is also available in the PCR Legal File, Resp'ts
Ex. N, at 145-52 [ECF No. 20-2 at 147-54].
See Pet'r Br., Resp'ts Ex. J, at 13-17, 18, 25, and 38 [ECF No. 14].
Resp'ts Ex. K [ECF No. 14].
constituted improper personalization nor introduced facts not in evidence. Id. at 5-6. The Court
of Appeals also denied Petitioner’s third point concluding that Petitioner had not demonstrated
the vague references to the “building ban” “linked [Petitioner] to any prior arrest, charge, crime,
or conviction,” or “played a decisive role in determining his guilt.” Id. at 6-7.
The Court of
Appeals issued its mandate on February 20, 2013.46
II. Petitioner’s Grounds for Federal Habeas Relief
In his timely federal habeas petition, Petitioner seeks relief on the following six grounds,
which, he asserts, demonstrate violations of his constitutional rights under the Fifth, Sixth, and
1. The trial court erred in overruling Petitioner’s motion for judgment of acquittal
on the kidnapping charge because there was insufficient evidence;
2. The trial court erred in overruling Petitioner’s objections to the leading
questions during V.W.’s direct examination, because the content of the leading
questions provided the only evidence to support proof of the elements of forcible
3. The trial court erred in overruling Petitioner’s objections to the State's voir dire
questions asking whether the panel members would be able to consider guilt on
testimony alone, despite the State’s intention to introduce physical evidence;
4. The trial attorney failed to ask the trial court to question the jurors individually
to ascertain whether any of them slept during V.W.'s testimony;
5. The trial attorney failed to object during closing argument to the prosecutor’s
personalization and introduction of facts not in evidence, as well as to move for a
mistrial and request an instruction directing jurors to disregard the prosecutor’s
6. The trial attorney failed to object and request a mistrial in response to V.W.’s
repeated testimony that Petitioner was banned from V.W.’s building.
Missouri Court of Appeals Mandate in Pet'r PCR Appeal, filed Feb. 20, 2013, Resp'ts Ex. L [ECF No.
Respondents counter that Petitioner’s grounds for habeas relief lack merit because the Missouri
Court of Appeals’ decision addressing these issues is neither incorrect nor an unreasonable
application of clearly established federal law. In addition, Respondents argue that the Court of
Appeals’ decision is based on a reasonable determination of the facts in light of the evidence
presented in the state court proceedings.
III. Discussion of Grounds for Habeas Relief
A. Standard of review under 28 U.S.C. § 2254 47
“In the habeas setting, a federal court is bound by the [Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”)] to exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard,
a federal court may not grant relief to a state prisoner unless a state court’s adjudication of a
claim “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
“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 United States Supreme Court
precedent if “the state court arrives at a conclusion opposite to that reached by [the Supreme]
In his second through sixth grounds for relief, Petitioner argues that these claims constitute “structural
error,” citing Arizona v. Fulminante, 499 U.S. 279 (1991) and Sullivan v. Louisiana, 508 U.S. 275 (1993). In
Fulminante, the Supreme Court described “structural error” as “structural defects in the constitution of the trial
mechanism,” such as “the total deprivation of the right to counsel at trial,” the presence of a partial trial judge, the
unlawful exclusion from a grand jury of persons based on their race, the violation of the right to self-representation,
and a violation of the right to a public trial. Fulminante, 499 U.S. at 309-10. “Structural defects” affect “the
framework within which the trial proceeds, rather than simply [being] error[s] in the trial process itself.” Id. at 310.
Applying Fulminante, the Supreme Court determined in Sullivan that an error in a jury instruction regarding the
burden of proof constituted “structural error.” Sullivan, 508 U.S. at 278-82. A federal habeas court need not address
a “structural error” argument if the underlying state court decision did not unreasonably apply clearly established
federal law. See White v. Wheeler, 136 S. Ct. 456, 462 (2015).
Court on a question of law or . . . decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000) (“Taylor”).
If a state court’s decision is not “contrary to” clearly established law, then the
“unreasonableness” standard applies, which is “meant to be difficult to meet, and ‘even a strong
case for relief does not mean the state court’s contrary conclusion was unreasonable.’” Williams
v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 102
(2011)). A state court decision is 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.” Taylor, 529 U.S. at 407-08; see also id. at 413.
The “clearly established federal law” requirement of federal habeas review requires the
federal habeas court to consider only United States Supreme Court precedent in force when a
state court issues its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44-45 (2011)
(relying on Cullen v. Pinholster, 563 U.S. 170 (2011)). Moreover, Supreme Court holdings,
rather than dicta, constitute “clearly established Federal law.” Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (per curiam). State courts are not required to cite to United States Supreme
Court cases, “‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.’” Revels v. Sanders, 519 F.3d 734, 739 (8th Cir. 2008)) (quoting Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam)). Importantly, in reviewing state court decisions to
ascertain whether they either contradict or unreasonably apply clearly established federal law, a
federal habeas court “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen, 563 U.S. at 181-82.
In a federal habeas action pursued by a state prisoner, “a determination of a factual issue
made by a state court shall be presumed to be correct” unless rebutted by clear and convincing
evidence. 28 U.S.C. Section 2254(e)(1). The presumption of correctness applies to the factual
determinations made by a state court at either the trial or appellate levels, Smulls v. Roper, 535
F.3d 853, 864-65 (8th Cir. 2008) (en banc), and to a state court's implicit findings of fact, Grass
v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014). Likewise, federal habeas courts defer to state court
credibility determinations. Smulls, 535 F.3d at 864.
B. Claims alleging trial court error
Ground one – sufficiency of the evidence of kidnapping
Petitioner claims that the trial court violated his rights to due process and a fair trial
because there is insufficient evidence to support the kidnapping conviction.
Petitioner argues there is no evidence that Petitioner’s confinement of V.W. increased the risk of
harm to her and, therefore, V.W.’s confinement was incidental to the assault and rape offenses.
Respondents counter that the confinement of V.W. “was not merely incidental to the rape
and assault but also concealed [Petitioner]’s crimes and made [V.W.]’s escape more difficult.”
Respondents further contend that the Court of Appeals’ decision finding sufficient evidence to
support the kidnapping conviction is reasonable, entitled to deference, and neither contrary to nor
an unreasonable application of clearly established federal law.
A federal habeas court “may not overturn a state court decision rejecting a sufficiency-ofthe-evidence challenge simply because the federal court disagrees with the state court.” Cavazos
v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Rather, a federal habeas court may only overturn a
state court decision on the grounds of insufficiency “if the state court decision was ‘objectively
unreasonable.’” Id. (quoting Renico v. Lett, 599 U.S. 766, 773 (2010)); accord Coleman v.
Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) (quoting Cavazos, 132 S. Ct. at 4).
To find sufficient evidence to support a criminal conviction, the Fourteenth
Amendment’s due process clause requires “evidence necessary to convince a trier of fact beyond
a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443
U.S. 307, 316 (1979). The evidence is sufficient to support a “conviction whenever, ‘after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” Parker v.
Matthews, 132 S. Ct. 2148, 2152 (2012) (emphasis in original) (quoting Jackson, 443 U.S. at
319). To resolve a federal habeas claim challenging the sufficiency of the evidence to support a
state court conviction, a federal court looks to state law for the substantive elements of the
offense, “but the minimum amount of evidence that the Due Process Clause requires to prove the
offense is purely a matter of federal law.” Coleman, 132 S. Ct. at 2064. Importantly, “it is not
the province of a federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A federal habeas court may grant
relief on a sufficiency-of-the-evidence claim if the jury’s finding of guilt, based on the evidence
considered in the light most favorable to the prosecution, “was so insupportable as to fall below
the threshold of bare rationality.” Coleman, 132 S.Ct. at 2065.
Missouri law provides that:
[a] person commits the crime of kidnapping if he or she unlawfully removes
another without his or her consent from the place where he or she is found or
unlawfully confines another without his or her consent for a substantial period, for
the purpose of . . .
(4) [f]acilitating the commission of any felony or flight thereafter, or
(5) [i]nflicting physical injury on or terrorizing the victim or another.
Mo. Rev. Stat. Section 565.110.1. “[T]he offense of kidnapping can only be sustained where the
movement or confinement of the victim is more than ‘merely incidental’ to another offense.”
State v. Sistrunk, 414 S.W.3d 592, 600 (Mo. Ct. App. 2013) (citing State v. Williams, 860
S.W.2d 364, 366 (Mo. Ct. App. 1993) (“Williams”). “Determining whether a defendant’s . . .
confinement of his victim is merely incidental to another offense or is sufficient to constitute the
offense of kidnapping requires [a court] to focus upon whether ‘there was any increased risk of
harm or danger to the victim from the . . . confinement that was not present as the result of the
other offense.’” Id. (quoting Williams, 860 S.W.2d at 366).
On direct appeal, the Missouri Court of Appeals analyzed the circumstances of the
incident to determine whether “there was any increased risk of harm or danger to the victim from
the . . . confinement that was not present as the result of” the assault and rape offenses. State v.
Taylor, No. ED93334, Opinion at 448 (internal quotation marks omitted) (quoting Williams, 860
S.W.2d at 366). Such increased risk, the court stated, “may arise . . . from the potential of more
serious criminal activity because of the remoteness or privacy of the area . . . .” Id. (internal
quotation marks omitted) (quoting Williams, 860 S.W.2d at 366.)
The court noted prior
decisions concluding that the confinement element for kidnapping was satisfied by the
confinement of an assault victim to an apartment, confinement of a rape and assault victim to a
hotel room, and confinement of the victim of an attempted rape to a car. State v. Taylor, No.
ED3334, Opinion at 3-549 (discussing and citing State v. Brock, 113 S.W.3d 227, 229, 231 (Mo.
Ct. App. 2003); State v. Shelton, 78 S.W.3d 200, 204 (Mo. Ct. App. 2002); and Williams, 860
S.W.2d at 366, respectively). In each circumstance, the confinements increased the difficulty of
the victim’s escape and reduced the likelihood of detection. Id.
Resp'ts Ex. B.
Resp'ts Ex. B.
In denying Petitioner’s first point on direct appeal, the Missouri Court of Appeals
[T]he facts of this case are such that [Petitioner]’s confining V.W. to her
apartment increased the risk of harm to her. [Petitioner] confined V.W. in her
apartment against her will, and beat, strangled, and raped her for approximately
two hours. V.W. testified that [Petitioner] would not allow her to use the
bathroom. Moreover, V.W.’s apartment building had been recently ordered to
close, and V.W. was one of the few people still living there. According to V.W.’s
testimony, she was “literally the last person in that building on the eighth floor.”
The isolated circumstances in which [Petitioner] held V.W., therefore, increased
the risk of harm to her and allowed [Petitioner]’s criminal behavior to go
[Petitioner]’s confining V.W. to her apartment likewise made her escape
more difficult. V.W. testified that she ultimately escaped by crawling down the
fire stairs and taking the fourth floor elevator to the lobby; V.W. feared that
[Petitioner] might hear the elevator ding if she called it to her floor. [Petitioner]’s
confining V.W. in her apartment increased the risk of harm or danger to her, and
therefore there was sufficient evidence to support the jury’s finding [Petitioner]
guilty of kidnapping.
State v. Taylor, No. ED3334, Opinion, Resp’ts Ex. B, at 5.
Petitioner argues that the Missouri Court of Appeals’ conclusion that Petitioner’s
confinement of V.W. increased the risk of harm to V.W. conflicts with “clearly established
federal law” set forth in Williams v. Armontrout, 912 F.2d 924, 927-30 (8th Cir. 1990) (en banc)
(“Armontrout”) (construing Missouri kidnapping law). However, circuit precedent does not
constitute “clearly established Federal law, as determined by the Supreme Court” for purposes of
review and relief under the AEDPA. See, e.g., Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per
curiam) (citing Lopez v. Smith, 135 S. Ct. 1, 4-5 (2014) (per curiam)). Therefore, this Court
declines to consider Armontrout as a basis for federal habeas relief as to the sufficiency of the
evidence to support the kidnapping conviction.50
Petitioner also cites Fiore v. White, 531 U.S. 225 (2001) (per curiam), in support of his
position that his kidnapping conviction violates due process because the prosecution failed to
present sufficient evidence of an element of the crime. In Fiore, the United States Supreme
Court concluded that a conviction under Pennsylvania law for operating a hazardous waste
facility without a permit violated due process when the petitioner possessed the required permit,
although the petitioner may have violated the permit’s terms. Id. at 226-29. Petitioner urges his
conviction is similarly inconsistent with the demands of due process. The circumstances in
Fiore, however, are distinguishable.
Petitioner’s kidnapping conviction is supported by
sufficient evidence to establish each element of the offense, including the requirement that the
confinement of V.W. increase the risk of harm to her. Because there is sufficient evidence to
support each element of Petitioner’s kidnapping offense, the Fiore decision, concluding that due
process is violated when there is no evidence establishing an element of the offense, does not
support the granting of federal habeas relief.
The Missouri Court of Appeals’ decision finding sufficient evidence to support
Petitioner’s kidnapping conviction based on the increased harm to V.W. resulting from her
In any event, Armontrout does not support Petitioner’s argument that the kidnapping of V.W. was
incidental to the rape and first-degree assault offenses. In Armontrout, the petitioner challenged his capital murder
conviction on the ground that the trial court erred in refusing to instruct the jury on first-degree, felony murder.
Armontrout, 912 F.2d at 928. There, the petitioner and his accomplice “brutally beat” the victim then transported
him in the trunk of a car “to a location where they could sink [the victim’s] body in the river after they killed him.”
Id. at 927. In his federal habeas action, the petitioner argued that he was entitled to a lesser included offense
instruction because the victim’s death occurred during a kidnapping. Id. The Eighth Circuit held that the trial court
did not err in refusing to give the kidnapping-based felony murder instruction requested by the petitioner because
“the abduction and movement in the trunk of the car did nothing to intensify the risk [the murder victim] faced from
the beginning.” Id. at 929. By contrast, here, the evidence in Petitioner’s case clearly supports the conclusion that
Petitioner’s confinement of V.W. to her isolated apartment increased the risk of harm to V.W. and was not
incidental to the rape and first-degree assault.
confinement by Petitioner was not objectively unreasonable. Nor was the Court of Appeals’
decision upholding Petitioner’s kidnapping conviction either contrary to clearly established
federal law or based on an unreasonable determination of the facts in light of the evidence
Ground two – prosecutor’s leading questions during direct examination of
Petitioner contends the trial court violated his right to due process and a fair trial by
overruling Petitioner’s objections to the prosecutor’s leading questions during direct examination
of V.W., resulting in the development of information establishing the elements for the forcible
rape offense that “would otherwise have been unproven.” Respondents counter that the Missouri
Court of Appeals’ decision denying Petitioner’s challenge to the prosecutor’s leading questions
in his direct appeal was reasonable and entitled to deference.
During direct examination, the prosecutor asked V.W., “[V.W.] you told us about him
putting his penis in your vagina.”51 Petitioner’s attorney objected to the question as leading.52
The trial court overruled the objection.53 V.W. stated, “[Petitioner] did all different thing[s] you
can think of sexual. The intercourse, the sodomies, and I think he even tried to have anal sex.”54
Later, the prosecutor said,
I want to go back and cover something that I realized in listening to you that I
may have missed. You talked about way back in the beginning when you first
took the stand, you were telling us about how [Petitioner] was trying to have sex
with you. Did that happen?55
Trial Tr. at 279 [ECF No. 21-2 at 73].
Trial Tr. at 279 [ECF No. 21-2 at 73].
Trial Tr. at 279 [ECF No. 21-2 at 73].
Trial Tr. at 279 [ECF No. 21-2 at 73].
Trial Tr. at 295 [ECF No. 21-2 at 77].
(Footnote added.) V.W. responded, “Yeah.”56 Prosecutor asked her, “Okay. So he was able to
penetrate you?”57 V.W. answered, “Yes,” and Petitioner’s attorney objected on the grounds the
question was a leading question.58 V.W. answered “Yes” again and the trial court overruled
Petitioner’s objection to the question.59
The Missouri Court of Appeals denied Petitioner’s challenge on direct appeal to the
leading questions. The court concluded that, even if the challenged questions directed to V.W.
were leading, Petitioner was not prejudiced by them because:
Howard, the emergency room nurse who performed a sexual assault exam on
V.W., testified that V.W. exhibited genital trauma. V.W.’s genital trauma,
according to Howard, included bleeding and abrasions inside her vagina as well
as on her cervix. Howard further testified that V.W. experienced pain when
Howard inserted the speculum in her vagina. Howard’s testimony provided
sufficient evidence for the jury to find that [Petitioner] forcibly raped V.W.
State v. Taylor, No. ED93334, slip op at 6.
Neither Petitioner nor Respondents cite to United States Supreme Court decisions
addressing alleged error when a prosecutor leads a victim during direct examination and
purportedly establishes elements of the charged crime. The Eighth Circuit has observed that “the
repetitive use of leading questions in developing the crucial elements of an offense may be so
gross that it deprives the accused of a fair trial subject to habeas corpus review.” Garza v. Wolff,
528 F.2d 208, 210 (8th Cir. 1975). Even if the AEDPA permitted the court to rely on Eighth
Circuit precedent as “clearly established federal law,” the record in this case does not support the
Trial Tr. at 295 [ECF No. 21-2 at 77].
Trial Tr. at 295 [ECF No. 21-2 at 77].
Trial Tr. at 295 [ECF No. 21-2 at 77].
Trial Tr. at 295 [ECF No. 21-2 at 77].
conclusion that the prosecutor’s use of leading questions was so “gross” as to deprive Petitioner
of a fair trial.60
Accordingly, the decision of the Missouri Court of Appeals neither incorrectly nor
unreasonably applies “clearly established Federal law.”
Ground Three – prosecutor’s voir dire questions implying absence of physical
Petitioner asserts the trial court violated his rights to due process and a fair trial by
allowing the prosecutor to ask the panel members during voir dire if they would be able to
consider Petitioner’s guilt based on testimony alone, without physical evidence, when the State
intended to present physical evidence, including DNA, photographs, and medical records.
Respondents contend that the Missouri Court of Appeals’ decision on direct appeal rejecting
Petitioner’s challenge to the prosecutor's voir dire questions was reasonable and is entitled to
During voir dire the prosecutor described different types of evidence, specifically,
physical evidence and testimonial evidence, that are “equal,” and stated “[i]t’s up to you as a jury
to take each piece you’re given” and assess its weight and credibility.61 The prosecutor then
asked if “[a]nyone . . . feel[s] that if they’re not given physical evidence, no matter what that
testimonial evidence is, they couldn't consider a guilty verdict?”62 At the bench, Petitioner’s
In his reply, Petitioner acknowledges, "[i]n general a trial court has wide discretion in permitting leading
questions and much depends upon [the] circumstances and the subject matter of the questions. Hesse v. Wagner,
475 S.W.2d 55, 62 (Mo. 1970); State v. Branom, 689 S.W.2d 778, 780 (Mo. [Ct.] App. . . . . 1985)." The two state
cases cited by Petitioner address the issue of allowing leading questions during direct examination as a matter of
trial court discretion and do not discuss the issue as a matter of federal constitutional law. See Hesse, 475 S.W.2d at
67 (a will contest case); Branom, 689 S.W.2d at 780 (a statutory rape prosecution).
Trial Tr. at 80-81 [ECF No. 21-2 at 23-24].
Trial Tr. at 81 [ECF No. 21-2 at 24].
attorney objected that “this question is misleading because there is physical evidence. There’s
DNA evidence, there[ are] photographs, [and] there[ are] items seized at the scene. . . . [The
question is misleading because] it suggests that no physical evidence will be presented.
Testimony alone. This is not a testimony alone case.”63 After learning from the prosecutor that
she did “intend to present physical evidence,” the trial court overruled the objection.64
In his direct appeal, Petitioner argued the State’s voir dire questioning about the panel’s
ability to consider Petitioner’s guilt on the basis of eyewitness testimony alone was misleading,
confusing, and irrelevant, because the State intended to present physical evidence during trial.
State v. Taylor, No. ED 93334, Resp’ts Ex. B, at 7, 8. The Missouri Court of Appeals disagreed,
noting that such a claim is reviewed for abuse of discretion and Petitioner needed to establish “a
‘real probability’ that he was prejudiced” by the voir dire questioning.
Id. at 7-8. More
specifically, the court found the challenged questioning was not misleading because the State did
not introduce physical evidence in support of the three charges on which the jury returned a notguilty verdict.
Id. at 8-9.
The court also characterized the questioning as revealing the
prosecutor’s effort, within “[e]stablished principles,” to ascertain that the panel members would
“follow the court’s instruction to determine whether [Petitioner] was guilty beyond a reasonable
doubt, regardless of the form of evidence presented.” Id. at 9.
A criminal defendant’s right to an impartial jury arises from both the Sixth Amendment
and principles of due process. Ristaino v. Ross, 424 U.S. 589, 595 n.6 (1976). “Voir dire plays
a critical function in assuring the criminal defendant that his [constitutional] right to an impartial
jury will be honored.” Morgan v. Illinois, 504 U.S. 719, 729 (1992) (internal quotation marks
Trial Tr. at 81 [ECF No. 21-2 at 24].
Trial Tr. at 81-82 [ECF No. 21-2 at 24].
omitted) (quoting Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion)).
While certain areas of questioning, such as possible racial bias and exposure to pretrial publicity,
are required by the Constitution, “the trial court retains great latitude in deciding what questions
should be asked on voir dire.” Mu’Min v. Virginia, 500 U.S. 415, 424 (1991) (addressing
pretrial publicity); accord Ramsey v. Bowersox, 149 F.3d 749, 756 (8th Cir. 1998) (“trial judges
have broad discretion to decide how to conduct voir dire”). Importantly, a federal habeas court’s
authority to review the manner in which voir dire is conducted during a state criminal trial is
“limited to enforcing the commands of the United States Constitution.” Mu’Min, 500 U.S. at
Petitioner cites Duncan v. Louisiana, 391 U.S. 145 (1968) to support his argument that
“[t]he purpose of voir dire is to provide both parties with the opportunity to participate in the
selection of a fair trial [sic] and impartial jury.”65 In that case, the United States Supreme Court
held the right to a “trial by jury in criminal cases is fundamental to the American scheme of
justice” and “the Fourteenth Amendment guarantees a right of jury trial in all criminal cases
which – were they to be tried in a federal court – would come within the Sixth Amendment’s
guarantee.” Id. at 149. The Supreme Court concluded that the denial of the defendant’s demand
for a jury trial of his offense, which was punishable by two years in prison, violated the
defendant’s constitutional right to trial by jury. Id. at 161. The Supreme Court did not expressly
Pet’r Reply at 13 [ECF No. 17 at 13]. Petitioner also cites State v. Johnson, 207 S.W.3d 24, 41 (Mo.
2006) (en banc), for the proposition that a “trial court has discretion over the nature and extent of counsel’s
questioning during voir dire [and an appellate court] will not disturb the trial court's decision unless there is a
manifest abuse of discretion and a real probability of injury to the defendant.” Pet’r Reply at 12 [ECF No. 17 at 12].
While the Missouri Supreme Court decision in Johnson cited to the United States Supreme Court’s decision in
Morgan, see Johnson, 207 S.W.3d at 40, the Missouri Supreme Court’s decision relied on state case law to conclude
that the trial court had not abused its discretion in sustaining the prosecutor's objections to defense counsel's voir
dire questions regarding imposition of the death penalty. Id. at 40-41. Therefore, Johnson does not assist Petitioner.
address voir dire in the Duncan case. Therefore, Duncan does not support federal habeas relief
due to a prosecutor’s voir dire questions implying an absence of physical evidence.
The parties have not directed the Court to a United States Supreme Court decision
addressing whether a defendant’s rights to due process and a fair trial are violated by the manner
in which a prosecutor questions members of a venire regarding the type of evidence that will be
presented at trial. While the Eighth Circuit has addressed a petitioner’s federal habeas claim
challenging a prosecutor’s voir dire questions posing hypotheticals about circumstantial
evidence, Hobbs v. Lockhart, 791 F.2d 125, 129 (8th Cir. 1986), Eighth Circuit case law does
not constitute “clearly established Federal law” for purposes of habeas review under the AEDPA.
See, e.g., Glebe, 135 S. Ct. at 431 (citing Lopez, 135 S. Ct. at 4-5). Accordingly, the Missouri
Court of Appeals’ decision rejecting on direct appeal Petitioner’s challenge to certain voir dire
questioning by the prosecutor was not either contrary to or an unreasonable application of clearly
established federal law.
C. Claims that Petitioner’s trial attorney provided ineffective assistance
Petitioner asserts that his trial attorney provided ineffective assistance of counsel by: (1)
failing to ask the trial court to question the jurors about whether a juror slept during V.W.’s
testimony (ground four); (2) failing to object and ask for an instruction that the jury disregard the
prosecutor’s personalization and introduction of facts not in evidence during closing argument,
as well as seek a mistrial on this basis (ground five); and (3) failing to object and seek a mistrial
when V.W. repeatedly testified that Petitioner was banned from her building (ground six).
Respondents counter that the Missouri Court of Appeals reasonably determined the facts and
properly applied the Strickland standard when it held that Petitioner failed to demonstrate that he
received ineffective assistance of counsel.
Standard of Review
To succeed on an ineffective-assistance-of-counsel claim, a federal habeas petitioner
must show that: (1) counsel’s representation fell below an objective standard of reasonableness,
and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 688.
More specifically, the first (or performance) prong of the Strickland test, requires a petitioner to
demonstrate that “counsel’s performance was so deficient as to fall below an objective standard
of the customary skill and diligence displayed by a reasonably competent attorney.” Armstrong
v. Kemna, 534 F.3d 857, 863 (8th Cir. 2008) (citing Strickland, 466 U.S. at 687-94). A federal
habeas court evaluates counsel’s challenged conduct from counsel’s perspective at the time the
challenged conduct occurred. Bell v. Cone, 535 U.S. 685, 698 (2002) (citing Strickland, 466
U.S. at 689). In assessing a challenge to an attorney’s performance, a federal habeas court must
attempt to avoid the “distorting effects of hindsight.” Id. (quoting Strickland, 466 U.S. at 689).
“Although hindsight may make a decision appear unwise or unsound, when scrutinizing
counsel’s performance a court ‘must be highly deferential.’” Underdahl v. Carlson, 381 F.3d
740, 743 (8th Cir. 2004) (quoting Strickland, 466 U.S. at 689).
“[W]hen reviewing an ineffective-assistance-of-counsel claim, ‘a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Woods, 135 S. Ct. at 1375 (quoting Strickland, 466 U.S. at 689). There is “a
strong presumption that counsel’s challenged actions or omissions were, under the
circumstances, sound trial strategy.” Garrett v. Dormire, 237 F.3d 946, 949-50 (8th Cir. 2001)
(citing Strickland, 466 U.S. at 691). Counsel’s strategic decisions include trial decisions other
than the decision whether or not to plead guilty, waive a jury trial, testify on one’s own behalf,
and take an appeal. United States v. Washington, 198 F.3d 721, 723-24 (8th Cir. 1999).
“The second prong requires a showing that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” White
v. Dingle, 757 F.3d 750, 753 (8th Cir. 2014) (quoting Strickland, 466 U.S. at 694).
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Armstrong v. Kemna, 450 F.3d 592, 595-96 (8th Cir. 2010) (“Kemna”) (internal quotation and
citation omitted); accord Carroll v. Schriro, 243 F.3d 1097, 1100 (8th Cir. 2001) (quoting
Strickland, 466 U.S. at 694). The petitioner bears the burden of showing such a reasonable
probability. Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992). In deciding whether
there is prejudice as a result of an attorney’s deficient performance, a federal habeas court
considers the totality of the evidence. Kemna, 590 F.3d at 596 (citing Kimmelman, 477 U.S. at
A habeas court need not address the prejudice prong if the attorney’s performance was
not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir. 1998). Likewise, a habeas
court need not address counsel’s allegedly deficient performance if the petitioner has failed to
show prejudice. See Strickland, 466 U.S. at 697; Williams v. Locke, 403 F.3d 1022, 1025 (8th
An attorney does not provide ineffective assistance of counsel by failing to pursue an
action that lacks merit. McReynolds v. Kemna, 208 F.3d 721, 724 (8th Cir. 2000) (discussing an
attorney’s failure to present a Confrontation Clause challenge to admitted testimony that was
“unlikely to succeed”); accord Dodge v. Robinson, 625 F.3d 1014, 1019 (8th Cir. 2010) (finding
counsel’s failure to present a double-jeopardy objection to a sentence did not constitute
ineffective assistance because the objection lacked merit); Thai v. Mapes, 412 F.3d 970, 979 (8th
Cir. 2005) (attorney not ineffective for failing to make a “factually meritless” argument); Gray v.
Bowersox, 281 F.3d 749, 756 n.3 (8th Cir. 2002) (noting that “a claim of ineffective assistance is
not viable” where the attorney’s omitted objection to evidence and argument “would have been
Importantly, under the AEDPA, ‘[e]stablishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is . . . difficult.” Harrington, 562 U.S. at 105.
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the
two apply in tandem, review is ‘doubly’ so.” Id. (internal citations omitted).
Ground Four – sleeping juror66
Petitioner contends his rights to a fair trial, an impartial jury, due process, and the
effective assistance of counsel were violated by his trial attorney’s failure to ask the trial court to
question each juror about whether any juror was sleeping during V.W.’s testimony. Respondents
counter that the decisions of the post-conviction motion court and the Missouri Court of Appeals
in Petitioner’s post-conviction proceeding addressing this contention are neither contrary to nor
unreasonable applications of Strickland and are entitled to deference.
When denying Petitioner’s claim that his trial attorney “was ineffective for failing to
request that the [trial c]ourt [question] the jury about a juror sleeping during V.W.’s testimony,”
the post-conviction motion court found:
As support for all of his ineffective assistance of counsel claims, Petitioner argues there can be "no
possible strategic reason for" his attorney's alleged errors. Petitioner cites Richey v. Mitchell, 395 F.3d 660 (6th Cir.
2005), which was vacated by Bradshaw v. Richey, 546 U.S. 74 (2005), and United States v. Bass, 310 F.3d 321,
327-30 (5th Cir. 2002) in support of this argument. These decisions are inapposite because they do not address an
attorney's strategy. Petitioner also cites to the Supreme Court decisions in Fulminante, supra, and Sullivan, supra, to
support his position that his ineffective assistance of counsel claims are subject to "structural error" analysis rather
than "harmless-error" analysis. Pet'r Reply at 16 and 19 (ground four), 22 and 26 (ground five), and 29-30 (ground
six) [ECF No. 17 at 16, 19, 22, 26, and 29-30]. As noted earlier, this court need not address Petitioner's "structural
error" argument if the underlying state court decision did not unreasonably apply clearly established federal law.
White, 136 S. Ct. at 462.
[Petitioner] states that[, in response to questioning,] the juror . . . could have
explained whether the juror had been sleeping [during V.W.’s testimony].
[Petitioner] asserts he saw a male juror sleeping, but his attorney “brushed him off
stating that it could be good that he is sleeping during V.W.'s testimony.”
[Petitioner] claims the juror missed critical evidence and states that if the juror
had been replaced with an alternate who heard [V.W.’s] testimony he would have
been acquitted on one or more counts.
The mere fact that a juror slept during trial does not entitle [Petitioner] to
relief in the absence of prejudice. Vann v. State, 26 S.W.3d 377, 381 (Mo. [Ct.]
App. . . . 2000) . . . . [Petitioner] claims the juror was sleeping during [V.W.]’s
testimony and his attorney did not raise the issue because he thought it was
helpful to the defense. It is thus clear that counsel made a strategic decision not to
raise the issue, and [Petitioner]’s claim that he likely would have been acquitted
had the juror heard [V.W.]’s testimony against him, which was the primary
evidence against him, amounts to unlikely speculation.
Taylor v. State, No. 1022-CC11847, Mot. Ct. J. at 3.67
Petitioner presented this claim in his post-conviction appeal. Specifically, Petitioner
argued in his first point that his trial attorney provided ineffective assistance by failing to ask the
trial court to individually question each juror “about whether anyone was sleeping during V.W.’s
testimony.”68 Petitioner contended that “there is a reasonable probability that the sleeping juror
would have been dismissed, a new juror would have served on the jury, and the fair and impartial
jury would not have convicted [Petitioner].”69
In denying this point, after discussing the
Strickland case, the Missouri Court of Appeals concluded Petitioner had not “overcome the
strong presumption that counsel’s decision was reasonable trial strategy” and Petitioner had not
sufficiently pleaded prejudice. Taylor v. State, No. ED98182, Supp. Mem. at 5-6.70
PCR Legal File, Resp'ts Ex. N, at 146-47 [ECF No. 20-2 at 148-49].
Pet'r Br., Resp'ts Ex. J, at 13.
Pet'r Br., Resp'ts Ex. J, at 13.
Resp'ts Ex. K.
With respect to Petitioner’s “failure to overcome the strong presumption that counsel’s
decision was reasonable,” the Court of Appeals stated:
[Petitioner] alleges he informed his attorney during trial that one of the jurors
slept during [V.W.]’s testimony. However, the attorney “brushed him off stating
that it could be good that he is sleeping during V.W.’s testimony.” When the
sentencing court examined [Petitioner] regarding the effectiveness of defense
counsel, he stated that his attorney did not raise the issue because he believed it
was helpful to the defense because the juror may not find [V.W.] credible. As
such, [Petitioner] has failed to overcome the strong presumption that defense
counsel’s conduct fell within the wide range of professionally reasonable trial
Id. at 4. As for Petitioner’s failure to plead sufficient allegations of prejudice, the court found:
[a] sleeping juror does not entitle [Petitioner] to relief in the absence of prejudice.
[Petitioner]’s allegations are conclusory and speculative as he fails to articulate
what evidence the sleeping juror missed. Even if the juror admitted to sleeping
during the testimony and was replaced by an alternate juror, there was
overwhelming evidence of [Petitioner]’s guilt.
Id. at 4-5 (citations omitted).
In support of his position that his attorney’s failure to address Petitioner’s report of a
sleeping juror constituted ineffective assistance, Petitioner relies heavily on Tanner v. United
States, 483 U.S. 107 (1987). In Tanner, the Supreme Court stated that a petitioner has a “Sixth
Amendment interest in an unimpaired jury [that is] protected by several aspects of the trial
process,” including voir dire and observations “by the court, by counsel . . . by court personnel,”
and by jurors, who “may report inappropriate juror behavior to the court before they render a
verdict.” Id. at 127. The Tanner decision did not directly address the required response to an
allegedly sleeping juror. The Supreme Court did, however, imply that “lack of sleep” was not an
“extraneous influence” that might support a post-verdict evidentiary hearing. See, e.g., id. at
122, 126 (finding no substantial evidence of jury incompetence where evidence “suggested, at
worst, that several of the jurors fell asleep at times”). Accordingly, Tanner appears to undercut
In addition to citing Tanner, Petitioner relies on United States v. Tierney, 947 F.2d 854
(8th Cir. 1991). In Tierney, the Eighth Circuit held that the trial court did not err by failing sua
sponte to declare a mistrial due to a sleeping juror. Id. at 868-69. The Eighth Circuit cited
Tanner for the proposition that the Supreme Court found “no substantial evidence of jury
incompetence where evidence ‘suggested, at worst, that several of the jurors fell asleep at
times.’” Id. at 869 (citing Tanner, 483 U.S. at 125).
Petitioner also relies on State v. Fritz, 913 S.W.2d 941 (Mo. Ct. App. 1996) to support
this ground. In Fritz, the Missouri Court of Appeals remanded a post-conviction proceeding to
the motion court to conduct a hearing on the petitioner’s contention that his attorney provided
ineffective assistance by failing to object to two allegedly sleeping jurors. Id. at 945; but see
Vann, 26 S.W.3d at 381 (no hearing required based on allegations regarding an allegedly
sleeping juror); accord Davis v. State, 453 S.W.3d 882, 885-86 (Mo. Ct. App. 2015) (no error in
denying, without an evidentiary hearing, a post-conviction motion alleging the trial attorney was
ineffective in failing to strike a sleeping juror). The Fritz case is distinguishable. In Fritz, the
record did not disclose any reasoning by the attorney for his failure to object to the allegedly
sleeping jurors. Fritz, 913 S.W.2d at 945. In contrast, the record here discloses the attorney’s
failure to pursue questioning of the jurors resulted from a decision based on reasonable trial
The Missouri Court of Appeals’ decision affirming the denial of Petitioner’s claim that
his trial attorney provided ineffective assistance of counsel by failing to ask the trial court to
question jurors about sleeping during V.W.’s testimony is neither contrary to nor an
unreasonable application of Strickland, supra. Additionally, the Court of Appeals’ decision was
not based on an unreasonable determination of the facts in light of the evidence presented.
Ground Five – prosecutor’s closing argument
Petitioner contends his trial attorney provided ineffective assistance of counsel by failing
to object, seek a jury instruction to disregard, and move for a mistrial in response to the
prosecutor’s alleged improper personalization and introduction of facts not in evidence during
Respondents counter that the Missouri Court of Appeals’ decision on
Petitioner’s challenge to the prosecutor's closing argument was reasonable and is entitled to
If a prosecutor’s closing argument cannot be characterized as improper, then a
prosecutor’s comments will not support an ineffective assistance of counsel claim. Epps v. Iowa,
901 F.2d 1481, 1483 (8th Cir. 1990). Moreover, to obtain federal habeas relief based on a
prosecutor’s closing argument, a petitioner must show “a reasonable probability that the outcome
would have been different but for the improper statement.” Barnett v. Roper, 541 F.3d 804, 813
(8th Cir. 2008). In analyzing a federal habeas claim based on a prosecutor’s closing argument, a
federal habeas court considers “the weight of the evidence and whether the improper argument
misstated evidence or implicated other specific [constitutional] rights of the” petitioner.
Bucklew v. Luebbers, 436 F.3d 1010, 1022 (8th Cir. 2006).
During her rebuttal closing argument, the prosecutor stated:
Why would Detective Herzberg risk his entire career and make up this statement
of the [Petitioner] that isn’t even a confession, that is just some crazy story. And
then he gets up here and tells you a different story and that Herzberg made up that
earlier story and risked his career on that.71
Trial Tr. at 520 [ECF No. 21-2 at 133].
Petitioner contended in his post-conviction motion that these statements
prejudiced him by presenting facts not in evidence “to excuse why the State’s case might be seen
as weak because . . . V.W. could not remember many details and was not a good witness.”72
Additionally, Petitioner asserted the statements prejudiced him “because the State was trying to
appeal to the jurors’ passions and prejudices by arguing it was impossible for Detective Herzberg
to make up a statement because he would never risk his career.”73 Finding that the prosecutor’s
challenged statements did not suggest “personal danger to the jurors or their families if
[Petitioner] were to be acquitted,” the motion court denied this claim, concluding that the
challenged argument by the prosecutor “was a valid argument regarding the credibility of a
The Missouri Court of Appeals rejected Petitioner’s claim of ineffective assistance,
concluding that the prosecutor’s closing argument was “a valid argument regarding the
credibility of a witness.” Taylor v. State, No. ED98182, Mem at 5-6.75 The Court of Appeals
determined that the prosecutor did not suggest personal danger to either the jurors or their
families if Petitioner was acquitted and did not “ask the jurors to place themselves in the shoes of
the victim.” Id. at 5-6. The Court of Appeals also concluded the prosecutor’s challenged
statements did not improperly “refer to facts outside the scope of the evidence,” but instead
were “a reasonable inference from the evidence adduced at trial.” Id. at 6 (citing State v. Chism,
252 S.W.3d 178, 187-89 (Mo. Ct. App. 2008)) (finding proper a prosecutor’s suggestion that a
Pet'r Am. PCR Mot., Resp'ts Ex. H, at 14.
Pet'r Am. PCR Mot., Resp'ts Ex. H, at 14-15.
Mot. Ct. J., Resp'ts Ex. I, at page 3-4.
Resp'ts Ex. K.
police officer witness would not risk his career to lie). Stating that an attorney cannot provide
ineffective assistance of counsel by failing to raise a non-meritorious objection, the Court of
Appeals denied Petitioner’s point. Id.
In this proceeding, Petitioner contends that he was prejudiced by his attorney's failure to
object to the prosecutor’s statements because those statements were “so egregious as to
fundamentally infect the entire trial or [were] pervasive enough to render the result of the trial
As Petitioner argues, “[t]he relevant question is whether the
prosecutor[‘s] comments ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)).
To support his claim, Petitioner likens his case to State v. Brown, 231 S.W.3d 268 (Mo.
Ct. App. 2007). In Brown, the Missouri Court of Appeals reversed a conviction upon concluding
the prosecutor’s challenged closing argument “went beyond the permissible scope of comments
about the credibility of a witness and were ‘testimonial’ comments by the prosecutor about her
own credibility.” Id. at 269-70. There, the prosecutor addressed a witness’ testimony that the
prosecutor suborned perjury, arguing, “[t]he idea that [a prosecutor] would risk a law license, a
career, years of hard work, on one case is so offensive and completely ridiculous that we ask that
you take [the witness]’ testimony for what it is worth, which is nothing.” Id. at 272. The court
concluded that the prosecutor’s argument that she “would never risk her career by suborning
perjury . . . was improper,” argued facts that were “uniquely within” the prosecutor’s knowledge,
and “went beyond a mere comment upon the plausibility of [the witness’] testimony.” Id.
While Petitioner argues the “prosecutor’s statements at Petitioner’s trial were uncannily
similar to the remarks made by the prosecutor in Brown,” this court disagrees. Here, the
prosecutor’s comments about a law enforcement witness’ credibility do not raise an inference
about the prosecutor’s credibility or her possible knowledge of facts not introduced into
evidence. Rather, the challenged comment focused solely on the credibility of a witness who
testified at trial.
Petitioner also relies on Darden, 477 U.S. at 181, and Pollard v. Delo, 28 F.3d 887, 890
(8th Cir. 1994). Neither case supports Petitioner’s position. In Darden, the Supreme Court
concluded that, although the prosecutor’s statement that “the death penalty would be the only
guarantee against a future similar act” was inappropriate, it did not deprive the petitioner of his
right to a fair trial. 477 U.S. at 180-81. In Pollard, the Eighth Circuit concluded that appellate
counsel was not ineffective in failing to raise on appeal challenges to the prosecutor’s statements
that the petitioner was a “predator” and “[w]e’ve got to keep our doors locked . . . because of
people like [the petitioner].” 28 F.3d at 890-91.
The decision of the Missouri Court of Appeals denying Petitioner’s claim that his trial
attorney provided ineffective assistance of counsel, due to a failure to challenge the prosecutor’s
closing argument regarding Detective Herzberg, was not contrary to or an unreasonable
application of Strickland, supra. See Kinder v. Bowersox, 272 F.3d 532, 554 (8th Cir. 2001).
Moreover, the court’s decision is not based on an unreasonable determination of the facts.
Ground Six – V.W.’s testimony regarding Petitioner’s “building ban”
Petitioner contends that his trial attorney provided ineffective assistance by failing to
either object or request a mistrial on the grounds that V.W.’s testimony that Petitioner was
banned from V.W.’s building constituted evidence of uncharged crimes. Respondents counter
that the Missouri courts considering this testimony reasonably concluded that a “building ban” is
not a crime and does not show a propensity to rape, assault, and kidnap. Respondents further
assert that a non-meritorious objection does not constitute ineffective assistance of counsel.
In denying this claim in petitioner’s state post-conviction motion, the motion court
because the testimony explained how [Petitioner] got into the building without
being observed by police surveillance, there are many possible non-criminal
explanations for a person being banned from a building, and the statement could
not have had a decisive effect on the outcome of the trial in light of the strong
evidence of [Petitioner]’s guilt which included not just the testimony of [V.W.]
but also physical evidence.
Taylor v. Missouri, No. 1022-CC11847, Mot. Ct. J., at 4.76 On post-conviction appeal, the
Missouri Court of Appeals noted that prior bad act evidence “must show defendant committed,
was accused of, was convicted of, or was definitely associated with other crimes or bad acts,”
and “the defendant bears the burden of showing the challenged evidence actually constitutes
evidence of another crime.” Taylor v. State, No. ED98182, Supp. Mem., at 6.77
with these principles, the court concluded:
[Petitioner] has failed to prove that the challenged evidence linked him to
any prior arrest, charge, crime, or conviction. [V.W.]’s vague references that
[Petitioner] was banned from the building did not show that [Petitioner] was
associated with other crimes or bad acts which would lead the jury to conclude he
was guilty of the charged crime. There are many possible non-criminal
explanations for a person being banned from a specific building that would not
infer a propensity to commit the crimes of forcible rape, kidnapping, and assault
in the first degree.
Further, [the court] cannot say that [V.W.]’s vague references that
indicated [Petitioner] was banned from the building played a decisive role in
determining his guilt. The jury heard [V.W.]’s testimony which was corroborated
by physical evidence of the crime. We find there is no reasonable probability the
outcome of the trial would have been any different had defense counsel objected
Resp'ts Ex. I.
Resp'ts Ex. K
to the statement or requested a mistrial. Zink, 278 S.W.3d at 175. . . . [T]he
motion court’s findings of fact and conclusions of law are not clearly erroneous.
Taylor v. State, No. ED98182, Supp. Mem. at 7.78
To support his position that he was prejudiced by his attorney’s failure to object to
V.W.’s testimony Petitioner relies on Darden, 477 U.S. at 181, and Pollard, 28 F.3d at 890.
While these cases do not address allegedly improper testimony by a witness, they stand for the
well-established proposition that the Due Process Clause is violated if argument during trial is so
prejudicial that it renders the trial fundamentally unfair. This is similar to the standard applicable
when the admission of evidence at trial is challenged on due process grounds.
Tennessee, 501 U.S. 808, 825 (1991) (citing Darden, 477 U.S. at 179-83) (discussing whether
victim impact evidence should be admissible during penalty phase of a capital trial). In Payne,
the Supreme Court concluded the Due Process Clause of the Fourteenth Amendment “provides a
mechanism for relief” when “evidence is introduced that is so unduly prejudicial that it renders
the trial fundamentally unfair.” Id. In assessing fundamental fairness, the federal habeas court
reviews “the totality of the facts in the case and the fairness of the whole trial.” McDaniel v.
Lockhart, 961 F.2d 1358, 1360 (8th Cir. 1992).
Petitioner has not demonstrated that the verdict would differ in the absence of V.W.’s
challenged testimony or that the testimony so unduly prejudiced him that it rendered the trial
Accordingly, the admission of V.W.’s generalized references to
Petitioner’s ban did not violate due process, and the trial attorney’s failure to object did not
constitute the ineffective assistance of counsel. Petitioner provides no basis for a finding that the
Missouri Court of Appeals’ application of the Strickland standard was contrary to, or involved an
Resp'ts Ex. K.
unreasonable application of, federal law as determined by the Supreme Court, or was an
unreasonable determination of the facts in light of the evidence presented in state court. Cole v.
Roper, 623 F.3d 1183, 1187 (8th Cir. 2010).
IV. Petitioner’s Request for an Evidentiary Hearing
As a general rule, an evidentiary hearing is within a court’s discretion, as limited by
statutory restrictions set forth in the AEDPA. See Schriro v. Landrigan, 550 U.S. 465, 473-75
(2007). “In deciding whether to grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Id. at 474. In addition, a
federal habeas court must take into account “the deferential standards” under the AEDPA that
“control whether to grant habeas relief.” Id. “An evidentiary hearing is not required if the
record refutes the factual allegations, otherwise precludes habeas relief,” or allows resolution of
the issues by reference to the state court record. Id.
Having considered the AEDPA’s requirement that a federal habeas court limit its review
to the record that was before the state court that adjudicated the claims on the merits, Cullen, 563
U.S. at 181-82, the Court will deny Petitioner’s request for an evidentiary hearing as the record
supports the Missouri Court of Appeals’ decisions on the merits of Petitioner’s claims.
V. Certificate of Appealability
To grant a certificate of appealability, the court must find a substantial showing of the
denial of a federal constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 523 (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) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.
1994)). Because Petitioner has not made such a showing, the court will not issue a certificate of
After careful consideration,
IT IS HEREBY ORDERED that Jay Cassady is SUBSTITUTED for the originally
IT IS FURTHER ORDERED that Chris Koster is ADDED as a Respondent.
IT IS FURTHER ORDERED that Petitioner’s request for an evidentiary hearing is
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus  is
IT IS FURTHER ORDERED that the court will not issue a certificate of appealability.
A separate Judgment in accordance with this Memorandum and Order is entered this
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of September, 2016.
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