Poe v. Wallace
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Clerk shall substitute Michael Bowersox as Respondent in this matter. IT IS FURTHER ORDERED that Deauntee Poes Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in Stat e Custody (ECF No. 1) is DENIED, and that his claims are DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). Signed by District Judge Jean C. Hamilton on 3/8/16. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:13-cv-01444-JCH
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Deauntee Poe’s pro se Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Petition, ECF No.
1.) Respondent has filed a Response (ECF No. 5), and the Petition is ready for disposition.
On December 18, 2009, a jury in the Circuit Court of St. Louis City found Petitioner
guilty of one count of first degree robbery and one count of armed criminal action. The circuit
court determined that Petitioner was a prior and persistent offender and sentenced him to
eighteen years on each count, with the sentences to run concurrently. The Missouri Court of
Appeals upheld Petitioner’s conviction on direct appeal. Petitioner thereafter filed a pro se
motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. Petitioner
was appointed counsel, and he subsequently filed an amended Rule 29.15 motion, which was
denied. The Missouri Court of Appeals affirmed the denial of post-conviction relief. (Petition at
1-4; Resp. Exs. 1, 5, 6, 9.)
At the time Petitioner filed the instant Petition, he was incarcerated at the Southeast
Correctional Center in Charleston, Missouri. In January 2016, Petitioner was transferred to the
South Central Correctional Center in Licking, Missouri (SCCC). (ECF No. 19.) Michael
Bowersox is the Warden at SCCC. Therefore, Michael Bowersox should be substituted for Ian
Wallace as the proper party respondent in this action. Rule 2(a), Rules Governing Section 2254
Cases in the United States District Courts.
In his Petition, Petitioner raises the following five grounds for relief:
(1) that the trial court erred in denying Petitioner’s motion to suppress the
victim’s identification of Petitioner and in admitting evidence of the identification
at trial, because the identification was the product of a suggestive procedure;
(2) that the trial court erred in denying Petitioner’s motion for a mistrial after the
prosecutor told the jury that the defense had submitted an alibi instruction;
(3) that trial counsel was ineffective in failing to object to the court’s shackling of
Petitioner while he was in front of the jury;
(4) that the trial court erred in overruling Petitioner’s motion for a mistrial after
Sherriff’s deputies removed members of Petitioner’s family from the courtroom
following an altercation in front of the jury; and
(5) that the trial court erred in overruling Petitioner’s motion for acquittal at the
close of the state’s evidence, because the state had failed to produce any credible
(Petition at 5-14.) Petitioner presented only Grounds 1 through 3 to the state courts. Id.
“Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding
may consider only those claims which the petitioner has presented to the state court in
accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir.
2012) (quotation and citations omitted). “In Missouri, a claim must be presented at each step of
the judicial process in order to avoid default.” Id. at 1087 (quotations and citations omitted).
To avoid defaulting on a claim, a petitioner must have “fairly presented the substance of
the claim to the state courts…thereby affording such courts fair opportunity to apply controlling
legal principles to the facts bearing upon [the] claim.” Wemark v. Iowa, 322 F.3d 1018, 1020-21
(8th Cir. 2003) (quotations and citations omitted). “A claim has been fairly presented when a
petitioner has properly raised the same factual grounds and legal theories in the state courts
which he is attempting to raise in his federal habeas petition.” Id. at 1021 (quotations and
citations omitted). A section 2254 applicant’s failure to raise a claim in state court results in
procedural default. See Wooten v. Norris, 578 F.3d 767, 777 (8th Cir. 2009).
“When a habeas petitioner defaults his federal claims in state court…federal habeas
review of his claims is barred unless 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.’” Morgan v. Javois, 744
F.3d 535, 538 (8th Cir. 2013) (quoting Coleman v. Thompson, 501 U.S. 722, 750-51 (1991)),
cert. denied, 134 S. Ct. 1882 (2014). “Cause must be something external to the petitioner,
something that cannot fairly be attributed to him.” Arnold, 675 F.3d at 1087 (quotation and
citations omitted); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (considering
circumstances under which attorney error constitutes cause). To establish actual prejudice, the
petitioner “must show that the errors of which he complains ‘worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.’” Ivy v. Caspari,
173 F.3d 1136, 1141 (8th Cir. 1999) (emphasis in original) (quoting United States v. Frady, 456
U.S. 152, 170 (1982)).
Upon review of the record, the Court finds that Petitioner failed to exhaust the claims in
Grounds 4 and 5 of his Petition. He did not raise these claims in the state courts on direct appeal
or in his amended Rule 29.15 motion. The Court further finds that Petitioner has not shown
cause for his failure to do so. Although Petitioner asserts that his post-conviction counsel was
ineffective and “abandoned” him during the proceedings, Petitioner’s assertions are cast in
conclusory terms and are refuted by the record, which demonstrates that post-conviction counsel
filed an amended Rule 29.15 motion and, following the motion court’s denial of relief, appealed
to Missouri Court of Appeals. In any event, the ineffective assistance of post-conviction counsel
cannot, under these circumstances, constitute cause.
See Coleman, 501 U.S. at 752-54
(attorney’s negligence in post-conviction proceeding does not establish cause); cf. Martinez v.
Ryan, 132 S. Ct. 1309, 1320 (2012) (carving out limited and narrow exception to general rule set
forth in Coleman; inadequate assistance of counsel at initial-review collateral proceedings may
establish cause for petitioner’s procedural default of claim of ineffective assistance at trial);
Maples v. Thomas, 132 S. Ct. 912, 924-28 (2012) (excusing default where, under extraordinary
circumstances beyond petitioner’s control, post-conviction counsel abandoned petitioner without
notice in capital case).
Furthermore, because Petitioner has not claimed or come forth with new evidence
showing his actual innocence, he cannot demonstrate that the Court’s failure to consider these
claims would result in a fundamental miscarriage of justice. See Osborne v. Purkett, 411 F.3d
911, 920 (8th Cir. 2005). Therefore, this Court cannot reach the merits of the claims in Grounds
4 and 5.
Grounds for Relief
“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) (citing
28 U.S.C. § 2254). Under the AEDPA, a federal court may not grant relief to a state prisoner
unless the state court’s adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
A state court’s decision is “contrary to” clearly established law if “it applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases, or if it confronts a set of
facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a
different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). If the state
court’s decision is not “contrary to” clearly established law, the remaining question is whether
the state court’s determination was “unreasonable.” Williams v. Roper, 695 F.3d 825, 831 (8th
Cir. 2012). This standard is “difficult to meet, and even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.” Id. (quotation and citation omitted).
“[A] state court’s decision involves an unreasonable application of Supreme Court precedent
when the state court identifies the correct governing legal rule from [the Supreme] Court’s cases
but unreasonably applies it to the facts of the particular state prisoner’s case, or either
unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new context where it
should apply.” Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001) (quotations and citation
“Federal habeas relief is warranted only when the refusal was objectively
unreasonable, not when it was merely erroneous or incorrect.” Carter v. Kemna, 255 F.3d 589,
592 (8th Cir. 2001) (quotation and citations omitted).
A state court’s decision involves “an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings…only if it is shown that the state court’s
presumptively correct factual findings do not enjoy support in the record.” Ryan v. Clarke, 387
F.3d 785, 790 (8th Cir. 2004) (quotation and citations omitted). “[A] determination of a factual
issue made by a State court shall be presumed to be correct,” unless the petitioner rebuts the
determination with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The deference
owed to a state court’s findings of fact “includes deference to its credibility determinations,”
Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc), and to its “findings of fact made in
the course of deciding a claim of ineffective assistance of counsel,” Odem v. Hopkins, 382 F.3d
846, 849 (8th Cir. 2004). Moreover, the presumption of correctness of findings of fact applies to
the factual determinations made by a state court at either the trial or appellate levels. See Smulls,
535 F.3d at 864-65.
A. Ground 1
In Ground 1 of his Petition, Petitioner claims that the trial court erred in denying his
motion to suppress the victim’s identification of Petitioner and in admitting evidence of the
identification at trial, because the identification was the product of a suggestive procedure.
Specifically, Petitioner asserts that “the identification of [Petitioner] was rendered unreliable as it
was the product of a suggestive procedure in wh[ich] the police repeatedly presented [the] victim
with photos and live lineups containing [Petitioner].” (Petition at 5.)
Petitioner’s trial counsel filed a motion to suppress the identification. The trial court
conducted an evidentiary hearing, during which a detective and the victim testified as to the
circumstances in which the photo array and line-ups were shown to the victim. Both testified
that the victim had identified Petitioner in a photo array the day after the robbery, that during a
subsequent live line-up the victim was unable to clearly see the participants because his eye sight
became temporarily blurry due to a new medication he had taken earlier that day, and that a week
later he identified Petitioner in a photograph of the live line-up. Defense counsel cross-examined
the detective and the victim. After hearing this testimony and considering the evidence, the trial
court denied Petitioner’s motion to suppress the identification, finding that the “police
procedures were fair and not impermissibly suggestive and that, in any event, the victim had
sufficient recollection independent of police procedures to provide a reliable identification.”
(Resp. Exs. 1 at 22, 30; 2 at 10-96.)
Petitioner raised this claim on direct appeal. The Missouri Court of Appeals considered
this issue on the merits and reached the following conclusion:
Defendant’s point on appeal challenges the ‘repeated viewings.’ His only
argument relating to repeated viewings is that the victim’s final identification of
defendant in the photo of the live lineup was tainted and unreliable because, prior
to that identification, the victim saw defendant in the photo array and in the live
lineup and because of the ‘police insistence that the photo array and the line-up
contained a suspect.’ In this case, the victim’s vision was impaired by medication
at the time of the live lineup, and he was not able to clearly see the participants in
the lineup. He described his vision as ‘fuzzy.’ Because of his impaired vision, he
did not make a selection from the live lineup. A week later, when his vision was
clear, the victim identified defendant in the photo of the live lineup.
Defendant’s argument does not demonstrate why the ‘repeated viewings’ were
error, and defendant does not cite legal authority in support of this argument.
Moreover, an initial photographic identification that is followed by a lineup
identification is not per se unduly suggestive. State v. Chambers, 234 S.W.3d
501, 514 (Mo.App. 2007). Point one is denied.
(Resp. Ex. 5 at 3.)
The Supreme Court has recognized that there is “a due process check on the admission of
eyewitness identification, applicable when the police have arranged suggestive circumstances
leading the witness to identify a particular person as the perpetrator of a crime.” Perry v. New
Hampshire, 132 S. Ct. 716, 720 (2012). However, even if there is “[a]n identification infected
by improper police influence,” it “is not automatically excluded.”
If “the indicia of
reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive
circumstances, the identification evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.” Id. A “totality of the circumstances approach” is used to assess
the reliability of an identification, and the factors to be considered include “the opportunity of the
witness to view the criminal at the time of the crime…[and] the level of certainty demonstrated
at the confrontation.” Id. at 725 & n.5 (quotation and citation omitted).
The record here supports the trial court’s determination that the victim identified the
Petitioner based upon his recollection of his observations of Petitioner prior to and during the
robbery, and not as a result of any suggestive procedures or photos. At the motion-to-suppress
hearing, the detective testified that he had created a photo spread of six pictures from a computer
program, and that he had tried to select males with a similar hairstyle, and of similar race,
complexion, age, height, and weight. The victim testified that he had spoken to Petitioner prior
to the robbery and had seen Petitioner’s face, that he had observed Petitioner pointing a gun at
his head during the robbery, and that he was subsequently able to identify Petitioner in a photo
array because he “know[s] [Petitioner’s] face.” The victim also testified that the officer who
showed him the photographs cautioned him that he “[i]f [he] was gonna circle [someone in the
photo], it had to be a hundred percent,” and that, in his mind, he was “one hundred percent.”
(Resp. Ex. 2 at 16-17, 29-30, 58-68, 70, 76.)
The Court concludes that the state court’s findings were not contrary to clearly
established federal law, nor based upon unreasonable determinations of fact, and that they are
consistent with federal constitutional standards.
Therefore, Petitioner’s claim for relief in
Ground 1 will be denied.
B. Ground 2
In Ground 2 of his Petition, Petitioner claims that the trial court erred in denying his
motion for a mistrial after the prosecutor told the jury that the defense had submitted an alibi
During closing argument, the prosecutor stated: “Look at the testimony of the defendant.
You know, they submitted an alibi instruction, and I find it really—.” (Resp. Ex. 2 at 586.)
Defense counsel then asked to approach the bench and requested a mistrial, arguing that it was
“completely improper and prejudicial to comment on who submitted what instruction.” Id. The
trial court denied the motion for a mistrial, and instructed the jury: “The jury will be reminded
that the instructions that are given come from the Court and not directly from any of the lawyers
or the parties in this case. They are the Court’s instructions.” Id. at 587.
Petitioner raised this claim on the direct appeal, arguing that the prosecutor’s statement
misled the jury into thinking that the alibi instruction was of lesser weight than the other
instructions provided by the court. (Resp. Ex. 3 at 24.) The Missouri Court of Appeals
considered the issue on the merits and reached the following conclusion:
Here, as in [State v. Davis, 122 S.W.3d 690, 693 (Mo. App. Ct. 2003)], the trial
court did not abuse its discretion in denying defendant’s motion for a mistrial
because immediately after the prosecutor’s comment, the trial court instructed the
jury that the instructions come from the court and not the parties; the trial court
had previously submitted MAI-CR 3d 302.03 [which instructed the jury that it
was not permitted to single out certain instructions or disregard others]; and
defendant failed to show that the improper comment had a decisive effect on the
jury’s verdict in light of the overwhelming evidence of his guilt.
Moreover, defendant has failed to show prejudice from the improper comment.
There was overwhelming evidence of guilt. The victim, who had been face to
face with defendant at the time of the robbery, identified him. Additionally, at the
time of his arrest, defendant possessed items purchased with the victim’s stolen
credit card, as well as a large sum of cash in large denominations consistent with
that stolen from the victim. Defendant was identified in mall surveillance videos
placing items stolen from the victim in a trash can and shopping with his two
accomplices while they attempted to use the victim’s credit card. The
overwhelming evidence of defendant’s guilt makes it unlikely that the
prosecutor’s improper comment had a decisive effect on the jury’s verdict.
(Resp. Ex. 5 at 5-6.)
Under federal law, a prosecutor’s improper comments will be held to violate the
Constitution only if they “‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” Parker v. Matthews, 132 S. Ct. 2148, 2153-54 (2012) (per
curiam) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Under this standard, trial
courts are given “‘more leeway…in reaching outcomes in case-by-case determinations.’” Id. at
2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Federal habeas relief
should only be granted if the prosecutor’s closing argument was so inflammatory and so
outrageous that any reasonable trial judge would have sua sponte declared a mistrial,” and the
petitioner has demonstrated “a reasonable probability that the outcome [of the trial] would have
been different but for the improper statements.” Kennedy v. Kemna, 666 F.3d 472, 481 (8th Cir.
2012) (quotations and citations omitted).
Upon review of the record, the Court concludes that the state court’s findings that the
prosecutor’s comment did not have a decisive effect on the jury and was not prejudicial were not
contrary to clearly established federal law, nor based upon unreasonable determinations of fact,
and that they are consistent with federal constitutional standards. Therefore, Petitioner’s claim
for relief in Ground 2 will be denied.
C. Ground 3
In Ground 3 of his Petition, Petitioner claims that trial counsel was ineffective in failing
to object to the court’s shackling of Petitioner while he was in front of the jury, in violation of his
Sixth Amendment rights. Petitioner raised this claim in his amended Rule 29.15 motion. (Resp.
Ex. 6 at 5-10.) The motion court, which was also the trial court, concluded that Petitioner was
represented by “an experienced criminal defense attorney”; that “there [was] no mention of
shackling in the record”; and that “[shackling] was not ordered by the Court, it was never raised
as a concern during the trial at a time when any shackling could have been corrected if it in fact
occurred, and it was not raised post-trial or on appeal.” Id. at 13-15. The motion court also
noted that it “did not observe any handcuffing or other shackling of movant at any time during
his trial in the presence of the jury,” and that during a September 2011 telephone conference,
Petitioner’s post-conviction counsel “represented that he had spoken with [Petitioner’s trial
counsel] whose recollection did not support the allegation.” Id. at 2 n.1-2.
Petitioner advanced this claim on appeal, and the Missouri Court of Appeals affirmed the
motion court’s findings as follows:
The law has long forbidden routine use of visible shackles during the guilt phase
of a criminal trial absent some essential state interest. Deck v. Missouri, 544 U.S.
622, 626 (2005). Visible shackling undermines the presumption of innocence and
the related fairness of the factfinding process in that it suggests to a jury that the
justice system itself sees a need to separate a defendant from the community at
large. Id. at 630.
It is true, as Movant suggests, the mere absence of any reference to shackling on
the record, does not refute a movant’s allegation he was shackled at trial.
Dickerson v. State, 269 S.W.3d 889, 892 (Mo. banc 2008). The Missouri
Supreme Court went on to point out, however, a movant’s allegation that he was
shackled at trial can be refuted when a convicted defendant raises after-the-fact
allegations of shackling and it is apparent the question was not raised previously
because shackling was not contemplated and did not occur. Id.
Here, Movant raises an after-the-fact allegation of shackling. There is no record
of a request or order for shackling, no mention of shackling in the record of
Movant’s trial, his motion for new trial, or his direct appeal. Additionally, in his
written opinion, denying Movant’s motion, the motion court judge, who was also
the trial judge, relied on his own recollection that Movant was not visibly
handcuffed or shackled at any time during his trial. A trial court’s ability to recall
events of a trial can serve as a basis to deny a motion for post-conviction relief.
See Zink v. State, 278 S.W.3d 170, 185 (Mo. banc 2009.)
(Resp. Ex. 9 at 3-4.)
Upon review of the record, the Court finds that the state court’s findings with respect to
this claim were not based upon unreasonable determinations of fact. Even if the record had
demonstrated that Petitioner was shackled during trial, and even assuming the jurors were aware
of the shackles, Petitioner would be unable to demonstrate prejudice due to the overwhelming
evidence of his guilt. See Strickland v. Washington, 466 U.S. 668, 694, 697 (1984) (to establish
claim of ineffective assistance of counsel, movant must demonstrate that “there is reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different”; the question of counsel’s allegedly deficient performance need not be reached if
petitioner failed to show prejudice); cf. Steen v. Schmalenberger, 687 F.3d 1060, 1063-64 (8th
Cir. 2012) (state court’s determination that prisoner did not establish prejudice from counsel’s
alleged ineffective assistance in failing to object to his appearance at trial in prison attire was not
unreasonable application of Strickland; in determining existence of prejudice under Strickland,
court must consider totality of evidence before jury). As discussed above in Grounds 1 and 2,
there was sufficient evidence introduced at trial, including the victim’s identification of
Petitioner, to support the jury’s verdict. Therefore, Petitioner’s claim in Ground 3 is denied.
IT IS HEREBY ORDERED that the Clerk shall substitute Michael Bowersox as
Respondent in this matter.
IT IS FURTHER ORDERED that Deauntee Poe’s Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and that his
claims are DISMISSED with prejudice. A separate Order of Dismissal will accompany this
Memorandum and Order.
IT IS FURTHER ORDERED that because Petitioner cannot make a substantial
showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Day of March, 2016.
/s/____Jean C. Hamilton_______________
UNITED STATES DISTRICT JUDGE
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