Hosick v. Steele

Filing 11

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the petition of Damon Hosick for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not grant a Certificate of Appealability. A separate judgment in accord with this order is entered today. Signed by District Judge Catherine D. Perry on 04/23/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAMON HOSICK,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
TROY STEELE,
Respondent.

No. 4:13 CV 1060 CDP

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Damon Hosick for writ of
habeas corpus pursuant to 28 U.S.C. §2254. Hosick is presently serving multiple
terms of imprisonment following his convictions for sexual assault and incest. He
alleges that he is entitled to habeas corpus relief because he was prejudiced when
members of a motorcycle club, Bikers Against Child Abuse, were present at trial,
and because his counsel failed to present expert testimony on the issue of
penetration. His claim about expert testimony is procedurally barred, and his other
claims were rejected by the state courts. Because I conclude that the state court’s
rejection of these claims was not contrary to federal law or an unreasonable
determination of the facts, I will deny his claim for habeas relief.

1

Procedural Background
Hosick was convicted by a jury in the Circuit Court of St. Francois County
of two counts of first-degree statutory rape, four counts of first-degree statutory
sodomy, and two counts of incest. He was sentenced, as recommended by the jury,
to two terms of life imprisonment, four terms of 100 years’ imprisonment, and two
terms of four years’ imprisonment, with all sentences to run consecutively to one
another. His conviction was affirmed by the Missouri Court of Appeals. See Resp.
Ex. E, State v. Hosick, Memorandum Supplementing Order Affirming Judgment
Pursuant to Rule 30.25(b), No. ED95095 (Mo.App. May 24, 2011)(unreported).
Hosick filed a post-conviction motion under Missouri Supreme Court Rule 29.15,
which was denied by the trial court. That denial was affirmed by the Missouri
Court of Appeals. See Resp. Ex. I, Memorandum Supplementing Order Affirming
Judgment Pursuant to Rule 84.16(b), No. ED98033 (Mo.App. Feb. 13,
2013)(unreported).
On direct appeal Hosick argued that 1) the trial court erred by failing to
instruct the jury to disregard testimony from a doctor that the victims’ statements
and behavior were consistent with sexual abuse; 2) the trial court erred by failing
to instruct the jury on the definition of sexual intercourse; and 3) the trial court
erred in denying petitioner’s motion for acquittal on the basis of insufficient
evidence. In his appeal from the denial of his Rule 29.15 motion, Hosick alleged
2

that his counsel was ineffective for failing to properly challenge the presence of
BACA at trial.
Hosick now seeks federal habeas corpus relief on the following grounds:
(1) Trial Counsel was ineffective for (a) failing to object to the presence of
BACA in the courtroom and their escorting the victims to and from the
witness stand, and (b) failing to present an expert witness to refute the
State’s evidence of vaginal penetration.
(2) He was denied due process of law by BACA’s presence in the courtroom.
(3) He was denied equal protection of the law because of BACA’s presence in
the courtroom.
(4) He was denied the right to a fair trial because of BACA’s presence in the
courtroom.
Factual Background
The evidence at trial showed that Hosick’s sexual abuse of his daughters –
then aged seven and nine – came to light when his son – then aged eleven – told
Hosick’s then wife (the mother of all the children), that his father was having sex
with the girls. The daughters testified at trial, as did the son who had revealed the
abuse and a younger son, who had also witnessed the abuse. The children had all
been interviewed by the Children’s Advocacy Center, and their video recorded
interviews were played to the jury. All of the children had some developmental or
learning disabilities, and although their testimony at trial was not as detailed as
their video recorded statements, their testimony was consistent with the jury’s
3

verdict. The state presented the testimony of a physician who had examined the
victims, and although he did not report any physical findings that showed they had
been penetrated, he testified generally that their behavior was consistent with
sexual abuse. Defendant testified in his own defense and denied abusing his
daughters.
Procedural Bar
Respondent argues that Hosick’s claim regarding his counsel’s failure to
present expert testimony regarding penetration is procedurally barred. I agree that
Hosick did not raise this claim before the state court and has failed to show that his
procedural default should be excused, so he cannot raise the claim in this federal
habeas proceeding.
To preserve issues for federal habeas review, a state prisoner must fairly
present his or her claims to state courts during direct appeal or in post-conviction
proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). Failure to raise
a claim in a post-conviction appeal results in abandonment of that claim. Id.at
1150 (citing Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996)). To avoid this
procedural default, a petitioner must present his claim at each step of the judicial
process. Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012).
A state prisoner who fails “to follow applicable state procedural rules [for] raising
the claims” … is procedurally barred from raising them in a federal habeas action,
4

regardless of whether he has exhausted his state-court remedies.” Sweet, 125 F.3d.
at 1151(citation omitted). A state prisoner can overcome his procedural default
only if he can “demonstrate cause for the default and actual prejudice as a result of
the alleged violation of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). To demonstrate cause, a petitioner must show that
“some objective factor external to the defense impeded [the prisoner's] efforts to
comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). Such objective factors include “showing that the factual or legal basis for a
claim was not reasonably available to counsel ... or that ... some interference by
officials,” made compliance impracticable. Id. (quoting Brown v. Allen, 344 U.S.
443, 486 (1953)). In most instances, negligence on the part of a prisoner's postconviction attorney does not qualify as cause, and prisoners are bound to the
actions and inactions of their counsel. Coleman, 501 U.S. at 753.
Hosick did not raise this argument in his motion under Rule 29.15, nor was
it considered by the Missouri Court of Appeals. A post-conviction proceeding is
the exclusive procedure for pursuing ineffective assistance of counsel claims in
state court. Hosick has also failed to allege cause or prejudice for his failure to
raise this claim in state court, nor has he presented anything that would

5

demonstrate actual innocence. This claim of ineffective assistance of counsel is
procedurally barred and I will not consider it further.
Claims Relating to BACA
All of Hosick’s remaining claims relate to his argument that the biker
group’s actions somehow prejudiced him at trial. He raises this as a claim of
ineffective assistance of counsel, which was considered by the state court. He also
says that the BACA actions caused him to be deprived of due process, equal
protection, and a fair trial.
Under section (d) of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, when a claim has been
adjudicated on the merits in state court, an application for a writ of habeas
corpus shall not be granted unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding
28 U.S.C. § 2254(d).
In Shafer v. Bowersox, the Eighth Circuit articulated the standards for
subsection (1) as follows:
6

The “contrary to” clause is satisfied if a state court has arrived “at a
conclusion opposite to that reached by [the Supreme Court] on a question of
law” or “confronts facts that are materially indistinguishable from a relevant
Supreme Court precedent” but arrives at the opposite result. A state court
“unreasonably applies” clearly established federal law when it “identifies the
correct governing legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” A
case cannot be overturned merely because it incorrectly applies federal law,
for the application must also be “unreasonable.
329 F.3d 637, 646-47 (8th Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362,
405, 411, 413 (2000)).
The Supreme Court set out the standard for ineffective assistance of counsel
claims in Strickland v. Washington, 466 U.S. 668 (1984). According to Strickland,
a petitioner alleging ineffective assistance of counsel must make two showings. Id.
at 687. First, the petitioner must “show that counsel’s performance was deficient”
in that it “fell below an objective standard of reasonableness.” Id. at 687-88. In
this regard, petitioner must overcome a “strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. The
Court in Strickland cautioned that “judicial scrutiny of counsel’s performance must
be highly deferential.” Id. Strategic choices made after thorough investigation are
“virtually unchallengeable,” and decisions following less thorough investigation
are to be upheld to the extent they are supported by reasonable judgment. Id. at
690-691.

7

In addition to showing counsel’s assistance was deficient, a petitioner must
also demonstrate that he or she was actually prejudiced. Id. at 687. According to
Strickland, “[t]his requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial . . . .” Id. In order to satisfy the “actual
prejudice” standard, a 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.” Id. at 694.
Hosick’s counsel complained of BACA’s actions in his motion for acquittal
or in the alternative for a new trial. The motion stated:
The trial court erred in allowing members of the biker gang “Bikers
Against Child Abuse” to be present in the court room during trial
proceedings. The trial court allowed a member of the biker gang to escort
the children into the courtroom when called to testify. Counsel for
Defendant did not object at trial as strategy was not to draw even more
attention to their presence at the trial. Furthermore, after the children
testified at trial the biker gang made laps around the courthouse on their
motorcycles revving up their engines in a loud manner.
The trial court’s decision to allow the presence of the biker gang in
the courtroom during the children’s testimony violated the defendant’s right
to due process and right to a fair trial guaranteed by the Fifth, sixth and
Fourteenth Amendments to the United States Constitution and Article One,
Sections Ten and Eighteen(a) of the Missouri Constitution.
See Resp. Exh. B at p.88.
At the sentencing hearing, the prosecutor stated that no objection had been
raised at trial and said: “And I would also say for the record that there would be no
8

evidence that I’m aware of or anything in the record that would show that the jury
was interefered with or intimidated in any way by their presence.” Resp. Exh. A-2
at p. 349, l. 6-9. The trial court then denied the motion, stating:
I don’t know if there was a specific objection raised to it. There was
some discussion about it. And I believe Mr. Campbell [defense counsel]
expressed that he didn’t want them coming into the courtroom area. And I
said, no, I agree. They were just allowed to come just so far in. I did restrict
that. I don’t know if I did that on my own or if that was in response to some
reservation that you had.
Resp. Exh. A-2 at p. 349, l. 11-18.
Although Hosick did not appeal this point in his direct appeal, he raised it as
a claim of ineffective assistance of counsel in his post-conviction motion. The
court again denied the claim, concluding that “there is absolutely no record of any
disturbance at the time of the trial, or any mention of the presence of anyone in the
courtroom during the State’s case, which might have any impact on the jury
whatsoever … There is nothing in the record to support Movant’s bald assertion
the BACA group created any disturbance, let alone a disturbance which would
warrant a mistrial, whether trial counsel requested it or not.” Resp. Exh. F. at p.
36-37.
The Missouri Court of Appeals affirmed the decision of the motion court.
See Resp. Exh. I. In the affirming opinion, the Court of Appeals concluded that the

9

motion court’s determination that there was no disturbance was not clearly
erroneous, and stated:
The Missouri Constitution, as well as Missouri statutes, provide for a
right of public access to criminal proceedings … However, the public access
right is qualified, and it must be carefully balanced with a defendant’s right
to a fair trial.
Here, Hosick claims the BACA escorted the children testifying at trial
into the courtroom. Hosick also alleges the BACA drove motorcycles
around the courthouse, loudly demonstrating outside the courthouse,
following the children’s testimony. However, as the motion court correctly
notes, there is nothing in the record to indicate any disturbance caused by the
BACA infringed upon Hosick’s right to a fair trial. Nothing in the record
shows identifiable members of the BACA escorted the children to the
witness stand. In addition, nothing in the record reflects the BACA drove
their motorcycles around the courthouse following the testimony from the
children or any disturbance created by any such event.
Instead, the record reflects trial counsel strategically chose not to
object to these incidents to avoid calling attention to the presence of the
BACA members at trial. Hosick contends counsel’s decision was not
reasonable trial strategy; however, this argument is without merit. Often,
trial counsel will choose not to object to avoid highlighting certain issues
during trial. Here, in the motion for new trial, counsel articulated a sound
strategic reason for not objecting during the trial. Counsel did not want to
call further attention to the presence of the BACA members at trial. This
decision was a reasonable trial strategy and cannot form the basis of a claim
of ineffective assistance.
Moreover, the record further shows the trial court considered the issue
of the presence of the BACA members in the courtroom and limited their
presence by allowing them only “to come just so far in.” In light of the
court’s previous consideration of the issue, it is not likely further objections
would have been meritorious. Counsel cannot be found ineffective for
failing to make a meritless objection at trial.
See Resp. Exh. I at p. 4 -5 (citations and footnote omitted).
10

In examining the record in accordance with the Strickland standard, the state
courts were not unreasonable in determining that the trial strategy of not objecting
to the presence of BACA was sound. Hosick has shown nothing that would
indicate that counsel’s performance fell below the standards expected of
reasonable counsel. Additionally, Hosick has pointed to nothing that would
indicate that there was actually any behavior by BACA that could have prejudiced
him. Finally, trial counsel’s failure to object, especially after the court had already
considered BACA’s presence in the courtroom, would likely not have resulted in
the exclusion of the group. Therefore, the state court decisions rejecting the claim
did not involve an unreasonable application of federal law, and the state court
factual decision was not an unreasonable determination of the facts in light of the
evidence presented.
Hosick’s last three gounds allege that the BACA actions caused a violation
of his right to due process, a denial of equal protection, and deprived him of a fair
trial. Because he did not explicitly make these claims before the Missouri Court of
Appeals, they could be denied as procedurally barred. But in any event, they are
foreclosed by the decision of the Missouri Court of Appeals that there was, in fact,
no disturbance. Hosick has not shown anything that could lead a court to conclude
that there were improprieties “so egregious that they fatally infected the
proceedings and rendered his entire trial fundamentally unfair.” See Hamilton v.
11

Nix. 809 F.2d 463, 470 (8th Cir. 1987)(quoting Moore v. Wyrick, 760 F.2d 884,
886 (8th Cir.1985).
Conclusion
Hosick’s claim that his counsel was ineffective for failing to present expert
testimony about penetration is procedurally barred. His claims that his counsel
was ineffective and his trial was unfair because the Bikers Against Child Abuse
were present at the trial was properly rejected by the Missouri courts. Hosick has
shown nothing that could lead this court to conclude that the state court
determinations were an unreasonable application of the law or an unreasonable
determination of the facts. He is therefore not entitled to a writ of habeas corpus.
Under 28 U.S.C. §2253, an appeal may not be taken to the court of appeals
from the final order in a § 2254 proceeding unless a circuit justice or judge issues a
Certificate of Appealability. 28 U.S.C. §2253(c)(1)(A). To grant such a
certificate, the justice or judge must find a substantial showing of the denial of a
federal constitutional right. Id. at §2253(c)(2); see Miller-El v. Cockrell, 537 U.S.
322, 327 (2003); 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) (citing Flieger, 16

12

F.3d at 882-83). I find that reasonable jurists could not differ on any of Hosick’s
claims, so I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petition of Damon Hosick for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
IT IS FURTHER ORDERED that the petitioner has not made a substantial
showing of a denial of a constitutional right and this Court will not grant a
Certificate of Appealability.
A separate judgment in accord with this order is entered today.

____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of April, 2015.

13