Bickley v. Bowersox
Filing
16
OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc. No. 1 ], is denied. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 7/19/2016. (GGB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EUGENE BICKLEY,
Petitioner,
vs.
MICHAEL S. BOWERSOX,
)
)
)
)
) Case No: 4:13CV1504 HEA
)
)
)
Respondent.
OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. 1] on July 31, 2013. On August 28, 2013 Petitioner filed his Amended
Complaint [Doc. 4]. Respondent filed his Response to the Court’s Order to Show
Cause Why Relief Should Not be Granted [Doc. 12], on December 19, 2013.
Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States
District Courts, this Court has determined that there are no issues asserted that give
rise to an evidentiary hearing and therefore one is not warranted, as will be
discussed in further detail. For the reasons explained below, the Response to the
Order to Show Cause Why Relief Should not be Granted is well taken and the
petition will be denied.
Procedural Background
On January 6, 1999, Petitioner was convicted by jury of first-degree murder
and armed criminal. The Twenty-Second Circuit Court trial court, on March 26,
1999, sentenced him to concurrent terms of life imprisonment with parole and life
imprisonment without parole in the Missouri Department of Corrections. The
Missouri Court of Appeals, Eastern District of Missouri, affirmed his convictions.
The Missouri Supreme Court denied his application to transfer on July 17, 2000.
The Petitioner is currently within the custody of the Missouri Department of
Corrections under the previously referenced sentences.
Petitioner filed his motion for post-conviction relief, pursuant to Rule 29.15,
relative the case on October 2, 2000. Thereafter, the Missouri state trial court
entered findings of fact and conclusions of law denying the post-conviction relief
motion of Mr. Bickley. Plaintiff/Movant, thereafter, filed a timely notice of appeal
to the Missouri Court of Appeals. The Missouri Court of Appeals affirmed the
trial court and issued its mandate on November 22, 2006.
Petitioner filed this Petition for Writ of Habeas Corpus against Respondent
on July 31, 2013. Petitioner alleges that 1) the police obtained his confession
through the use of coercion; 2) the police obtained his confession in violation of
Miranda v. Arizona, 384 U.S. 436 (1966); 3) the police violated the right to
counsel in obtaining his confession; 4) the police violated the right to remain silent
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in obtaining his confession; and 5) trial counsel was ineffective for failing to call a
witness and failing to object to testimony.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the 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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
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of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
States Supreme Court did on materially indistinguishable facts. Id. A decision may
only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
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state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Statute of Limitations
Congress provides a one-year window in which a habeas applicant can file a
petition for writ of habeas corpus. That window opens at the conclusion of direct
review. The window closes a year later. Failure to file within that one year
window requires the court to dismiss the petition for writ of habeas corpus. 28
U.S.C. §2244(d) (1) (A); See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir.),
cert. denied, 540 U.S. 971 (2003).
Discussion
Petitioner was convicted of first-degree murder and armed criminal action
on January 6, 1999. The Twenty-Second Circuit Court for the City of St. Louis
sentenced Petitioner to concurrent terms of imprisonment for life with parole and
life without parole. His convictions were affirmed by the Court of Appeals for the
Eastern District of Missouri. His application to transfer was denied by the
Missouri Supreme Court on July 17, 2000. Pursuant to United States Supreme
Court Rule 13.1, he thereafter had 90 days to file for a writ of certiorari in the
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United States Supreme Court. He did not seek a writ of certiorari. The one-year
statute of limitations under AEDPA would have started running on October 15,
2000 if he had not been entitled to any tolling. See Gonzalez v. Thaler, 132 S.Ct.
641, 653-654 (2012) (judgment becomes final at the expiration of time for seeking
direct review).
Respondent is correct in that Petitioner should receive some tolling under 28
U.S.C. §2244(d)(2). The one-year statute of limitations for filing a federal habeas
corpus petition is tolled while “a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or
claim is pending….” 28 U.S.C. §2244(d)(2).
Petitioner timely filed his motion for post-conviction relief under Rule
29.15 and the Twenty-Second Circuit Court denied the motion. The Court of
Appeals affirmed the denial and sent the mandate on November 22, 2006,
concluding the tolling. Bickley had one full year after the mandate of the Missouri
Court of Appeals to file his federal habeas petition. The statute of limitations
expired on November 22, 2007.
Bickley failed to file this petition until August 23, 2013, almost six
years after the statute of limitations for filing expired. Bickley filed his petition for
habeas corpus well beyond the one-year deadline.
Procedural Default
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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).
Where a prisoner has defaulted his federal claims creating an independent
and adequate state procedural bar, federal habeas review of the claims is barred.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner did not raise
Grounds 1, 2, or 3 in his direct appeal or appeal from the denial of post-conviction
relief. These are, without question procedurally defaulted.
There are instances where a petitioner may overcome the procedural bar.
These are where he may demonstrate legally sufficient cause for the default and
actual prejudice resulting from it, or that the petitioner is probably actually
innocent. Coleman, 501 U.S. at 750. A petitioner must show that an
“external” impediment prevented him from presenting his claim to the state
court in a procedurally proper manner in order to satisfy the “cause” requirement.
Id. at 753. Petitioner here asserts that ineffective assistance of trial counsel is
cause for his failure to exhaust his claims in state court. Ineffective assistance of
trial counsel does not explain, or serve to legally excuse in any fashion, why he
failed to raise his claims on his direct appeal or post-conviction proceedings. He is
still in procedural default.
Merits Analysis
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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
proscribes “using federal habeas corpus review as a vehicle to second-guess
the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148
(2012) (citing Renico v. Lett, 130 S.Ct. 1855, 1866 (2010)). AEDPA provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
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).
In Ground 1 of the petition he asserts that during a sixteen hour
interrogation the police beat him and denied him food and restroom breaks.
The issue was raised in a pre-trial motion to suppress, but at the suppression
hearing, police officers stated that they fed Bickley, did not beat him, and
permitted him to use the bathroom. Petitioner did not testify or admit any evidence
to contradict their testimony. The motion to suppress was denied. There is
nothing supportive of his claims in the record. The record plainly refutes his
claims. The inculpatory statements were videotaped and the video was devoid of
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any violence. There were no manifest physical signs of violence to Petitioner. The
decision of the trial court is entitled to deference under §2254(d).
There is no allegation or demonstration of how the decision of the Missouri
Court of Appeals was 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.” 28 U.S.C. § 2254(d)(1) and (2), as defined by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000).
Ground 2 sets out an allegation that the police failed to read him a Miranda
warning before interrogating him and then forced him to sign a Miranda waiver
before securing a taped confession. Generally, Miranda warnings given after an
unwarned confession are ineffective, thus tainting subsequent confessions.
Missouri v. Seibert, 542 U.S. 600 (2004). The issue was raised in a pre-trial
motion to suppress. At the suppression hearing, the police stated they Mirandized
Petitioner before and during his videotaped statement. He did not testify or admit
any evidence to contradict this testimony. The trial court denied the motion to
suppress.
A review of the record again fails to provide anything of measure in support
of these claims. The evidence is contrary to the claims of Petitioner and support
the conclusion he was properly Mirandized. He, again too, has failed to
demonstrate how the Appellate decision is “a decision that was contrary to, or
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involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1)
and (2), as defined by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412
(2000).
In Ground 3 Petitioner alleges that the police ignored his request to call his
attorney during his arrest and several times thereafter. Bickley raised the issue in a
pre-trial motion to suppress but at the hearing, police officers stated that he did not
invoke his right to counsel. Bickley did not testify or admit any evidence to
contradict their testimony. The Missouri trial court denied the motion to suppress.
Under §2254(d) the trial court’s decision is reasonable and entitled to deference.
The allegation set out in Ground 3 is as problematic for Petitioner as his
other grounds for relief in that he has not alleged nor shown how the Court of
Appeals decision is “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.” 28 U.S.C. § 2254(d)(1) and (2), as defined by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000) and will be denied.
Ground 4 of the Petition was raised by Petitioner in his direct appeal to the
Missouri Court of Appeals for the Eastern District of Missouri and was roundly
rejected. He asserts here that a detective’s statement at trial that Bickley’s first
statement was not recorded because it was self-serving and a statement that he
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“could get up and testify to” violated his right to remain silent. This decision was
reasonable, supported by the record and receives the deference it is entitled under
§2254(d).
In his last claim for relief, Ground 5 of his petition, he asserts his conviction
is unfair because he is innocent but the State investigated the crime poorly and trial
counsel was ineffective. He notes that trial counsel was ineffective for failing to
call Travis Like and failing to object and request a mistrial “when the State’s
witness presented testimony which had the effect of compelling petitioner to be a
witness against himself. These claims were likewise raised on appeal and rejected,
on the merits, by the Appellate court as well.
Upon careful review the determination of the Missouri Appeals Court is
reasonable and entitled to deference under §2254(d). Counsel was not ineffective
for failing to object to Carroll’s testimony because the underlying claim was not
meritorious. The comment was not made by the prosecutor and certainly was not a
comment on Petitioner’s silence. As to witness Like the habeas petition does not
allege anything about Like other than that he could “establish an alibi defense”.
There is no allegation or showing as required pursuant to 28 U.S.C. § 2254(d)(1)
and (2), as defined by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412
(2000). The ground is denied.
Conclusion
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The state courts’ rulings with respect to Petitioner’s prayer for relief were
neither contrary to, nor unreasonable applications of, clearly established federal
law. Thus, Petitioner is not entitled to any relief.
Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
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default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
find this case is timely filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786.
Hence, no certificate of appealability will be issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc. No. 1], is denied.
IT IS FURTHER ORDERED that no certificate of appealability shall
issue.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 19th day of July, 2016.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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