Jones v. Wallace

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the § 2254 Petition filed by Petitioner is DENIED and DISMISSED, with prejudice (Doc. 1 ). IT IS FURTHER ORDERED that a separate judgment be entered incorporating this Memorandum and Order; IT IS FINALLY ORDERED that a certificate of appealability and in forma pauperis on appeal will not be issued. Signed by Magistrate Judge Noelle C. Collins on 07/14/2016. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALFRED DUBOIS JONES,

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Petitioner,

IAN WALLACE,
Respondent.

No. 4:13CV1606NCC

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. 1). The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 15). After
reviewing the case, the court has determined that Petitioner is not entitled to relief. As a result,
the petition will be dismissed.
I.
BACKGROUND
Petitioner was charged with one count of forcible rape, two counts of forcible sodomy,
one count of kidnapping, and two counts of attempted forcible sodomy. Jones v. Missouri, 389
S.W.3d 253, 255 (Mo. Ct. App. 2012). As stated by the Missouri appellate court, the evidence at
Petitioner’s trial was as follows:1
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In proceedings pursuant to 28 U.S.C. § 2254, a Astate court's factual findings carry a
presumption of correctness that will be rebutted only by clear and convincing evidence.@ Hall v.
Luebbers, 341 F.3d 706, 712 (8th Cir. 2003) (citing 28 U.S.C. § 2254(e)(1); Lomholt v. Iowa,
327 F.3d 748, 752 (8th Cir. 2003)). See also Simmons v. Luebbers, 299 F.3d 929, 942 (8th Cir.
2002). Explicit and implicit findings by state trial and appellate courts are presumed to be
correct. Rushen v. Spain, 464 U.S. 114, 120 (1983); Marshall v. Lonberger, 459 U.S. 422, 432
(1983); Sumner v. Mata, 449 U.S. 539, 545-47, 550 (1981). Additionally, the Eighth Circuit
holds that a habeas petitioner must provide Aclear and convincing@ evidence Ato overcome the
presumption of correctness that the law assigns to@ findings of the state courts. Ashker v. Class,

At approximately 5:30 a.m. on July 15, 2009, Jones sexually assaulted two
homeless women on a street in downtown St. Louis. Jones approached the first
woman, T.V., with his genitals in his hand and demanded that she perform oral
sex. Jones grabbed T.V.'s head and forced her toward his penis but T.V. was able
to pull herself up. Jones then pushed her against a fence, pulled her pants down,
and rubbed his penis against her backside. T.V. lied and said her boyfriend was
coming, which caused Jones to walk away. T.V. then walked to Centenary
Church, which offered meals for the homeless in its dining hall, and told an
employee that she had been attacked.
A short time later, Jones approached L.R. with his genitals exposed and
demanded that she perform oral sex. Jones took L.R. to a gangway where he
forced her to perform oral sex and raped her vaginally and anally. After the
sexual assault, Jones took L.R. to Centenary Church for coffee. When Jones and
L.R. walked in, an employee saw that L.R. was bloody and shaking and asked
L.R. what happened to her. L.R. told the employee that she had been raped by
Jones. The police apprehended Jones shortly thereafter.
. . . . [T]he State presented testimony and physical evidence of the
assaults, including DNA evidence of L.R.'s blood on Jones's underwear, Jones's
semen on L.R.'s cheek and underwear, and photographs showing cuts on L.R.'s
vagina as well as redness and swelling to her anus and thighs.
Jones, 389 S.W.3d at 255-56.
The jury found Petitioner guilty on all counts, and the court sentenced him to terms of
twenty years in prison for each count of rape and forcible sodomy, and five years in prison for
each count of kidnapping and forcible sodomy, with the sentences to be served consecutively.
Id. at 256. Petitioner filed a direct appeal, in which he argued the trial court erred by allowing
the State to extensively question the venire panel regarding the quantum of evidence they would
require to find Petitioner guilty, and by overruling the defense’s objection to a detective’s
152 F.3d 863, 867 (8th Cir. 1998) (citing 28 U.S.C. § 2254(e)(1); 28 U.S.C. § 2254(d)(2); Smith
v. Jones, 923 F.2d 588, 590 (8th Cir. 1991)). See also Laws v. Armontrout, 863 F.2d 1377, 1381
(8th Cir. 1988). The presumption applies to basic, primary or historical facts and the inferences
that can properly be drawn regarding them. See Case v. Mondragon, 887 F.2d 1388, 1393 (10th
Cir. 1989) (citing Marshall v. Lonberger, 459 U.S. at 431-32; Cuyler v. Sullivan, 446 U.S. 335,
341-42 (1980)). AQuestions of witness credibility are usually considered to be issues of fact.@ Id.
(citing Brown v. Allen, 344 U.S. 443, 506 (1953)). Mixed questions of law and fact, however,
are not entitled to a presumption of correctness pursuant to § 2254(d). Cornell v. Nix, 976 F.2d
376, 382 (8th Cir. 1992).

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testimony about what one of the victims told her. Missouri v. Jones, 341 S.W.3d 190 (Mo. App.
Ct. 2011) (per curiam). The Missouri appellate court affirmed the judgment and sentence of the
trial court. (Resp. Ex. A at 10-11).
Petitioner filed a pro se post-conviction motion pursuant to Rule 29.15. Counsel was
appointed and filed an amended motion. The motion court denied Petitioner post-conviction
relief, and Petitioner appealed that decision to the Missouri appellate court. (Resp. Ex. G). In
the appeal of the denial of his amended Rule 29.15 motion, Petitioner claimed he received
ineffective assistance of counsel because counsel failed to object to the State’s reference, during
closing argument, to Petitioner as a “predator” and to the victims as his “perfect prey.” He also
claimed that counsel was ineffective for failing to object to the prosecutor’s stating during
closing argument that Petitioner’s defense was “a load of crap” and “smoke and mirrors.” (Resp.
Ex. G at 11-13). The Missouri appellate court affirmed the decision of the motion court. Jones,
389 S.W.3d 253.
On August 15, 2013, Petitioner filed the instant § 2254 Petition in which he raises the
following Grounds for habeas relief:
(1) Counsel was ineffective for failing to use DNA experts to rebut the State’s
evidence;
(2) Counsel was ineffective for failing to discover the results of DNA testing;
(3) Counsel was ineffective for failing to discover results of L.R.’s toxicology
test;
(4) Counsel was ineffective for failing to provide Petitioner with a copy of the
DNA electronic data evaluation;
(5) Counsel was ineffective for failing to provide Petitioner with understandable
copies of the forensic sexual assault examination;
(6) Counsel was ineffective for failing to provide Petitioner with understandable
copies of the emergency department clinical documentation form;

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(7) Counsel was ineffective for failing to discover photos of L.R.’s injuries;
(8) Counsel was ineffective for failing to ask the arresting officer and the
evidence technician if Petitioner was drunk or on drugs;
(9) Counsel was ineffective for failing to sever cases;
(10) Counsel was ineffective for failing to object to the prosecutor’s stating,
during closing argument, that there was very strong evidence that one of the
victims was assaulted;
(11) Counsel was ineffective for failing to object to the prosecutor’s improper
opening and closing statements, when the prosecutor referred to Petitioner as a
“predator”;
(12) Counsel was ineffective for failing to object to prosecutor’s use of the term
“ridiculous” to describe the defense theory;
(13) Counsel was ineffective for failing to investigate T.V.’s account of the
incident;
(14) Counsel was ineffective for failing to investigate L.R.’s account of the
incident;
(15) Counsel was ineffective for failing to investigate DuShon Brent’s account of
the incident;
(16) Counsel was ineffective for failing to impeach T.V.’s testimony by using her
prior inconsistent statements;
(17) Counsel was ineffective for failing to impeach L.R.’s testimony regarding
her conversing with T.V.;
(18) Counsel was ineffective for failing to impeach L.R.’s testimony regarding
smoking cigarettes;
(19) Counsel was ineffective for failing to impeach L.R.’s testimony regarding
her injuries;
(20) Counsel was ineffective for failing to impeach DuShon Brent’s testimony by
using his prior inconsistent statements;
(21) Counsel was ineffective for failing to inform Petitioner of the trial date
before filing a speedy trial motion;

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(22) There was prosecutorial misconduct based on the prosecutor’s misconstruing
the fact that Petitioner had blood on his underwear;
(23) There was prosecutorial misconduct based on the prosecutor’s misconstruing
evidence of semen on L.R.’s clothing and cheek;
(24) The trial court erred when it allowed the charges against Petitioner to be
tried together;
(25) The trial court erred when it failed to find ineffective assistance of counsel
when the issue was raised at trial;
(26) The trial court erred when it refused to respect Petitioner’s answers
concerning ineffective assistance of counsel; and
(27) The trial court erred when it attempted to compel Petitioner to testify.
(Doc. 1).
II.
PROCEDURAL DEFAULT and TIMLINESS STANDARD
To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly
presented the substance of the claim to the state courts, thereby affording the state courts a fair
opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v.
Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been
fairly presented when a petitioner has properly raised the same factual grounds and legal theories
in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that
have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted
may not give rise to federal habeas relief unless the petitioner can demonstrate cause and
prejudice for the default. Id.
The United States Supreme Court holds that a state prisoner can overcome procedural
default if he or she can demonstrate cause and prejudice for the procedural default. Dretke v.
Haley, 541 U.S. 386, 388-89 (2004). See also Coleman, 501 U.S. at 750 (holding that a state

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habeas petitioner can overcome procedural default by demonstrating cause for the default and
actual prejudice or demonstrate that default will result in a fundamental miscarriage-of-justice);
Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir. 1994). The United States Supreme Court also holds
that, because the Acause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice,@ the Court Arecognize[s] a narrow exception to the cause requirement
where a constitutional violation has >probably resulted= in the conviction of one who is >actually
innocent= of the substantive offense.@ Dretke, 541 U.S. at 393 (citing Murray v. Carrier, 477 U.S.
478, 496 (1986); Schlup v. Delo, 513 U.S. 298 (1995)). A[A] habeas petitioner who wishes to
have a procedurally defaulted claim evaluated on its merits >must show by clear and convincing
evidence that but for a constitutional error, no reasonable juror would have found the petitioner
[guilty] under the applicable state law.=@ McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir. 1992)
(citation omitted). Actual innocence is required to meet the miscarriage-of-justice exception.
See Sweet, 125 F.3d at 1152 (citing Schlup, 513 U.S. at 316).
A A>bare, conclusory assertion= that a petitioner is actually innocent is insufficient to
excuse a procedural default.@ Sweet, 125 F.3d at 1152 n.9 (citing Weeks v. Bowersox, 119 F.3d
1342, 1352-55 (8th Cir. 1997)). To meet the requisite standard for a probability of innocence a
habeas petitioner must show that Ait is more likely than not that no reasonable juror would have
convicted him in light of new evidence.@ Schlup, 513 U.S. at 327 (emphasis added). Evidence is
Anew@ if it was Anot available at trial and could not have been discoverable earlier through the
exercise of due diligence.@ Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001).
Additionally, § 2244(d)(1) establishes a 1-year limitation period on petitions filed
pursuant to § 2254. Petitioner’s § 2254 Petition was timely filed.

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As set forth above, Petitioner raises numerous grounds for habeas relief in his § 2254
Petition. He did not raise any of these grounds in his direct appeal to the Missouri appellate
court. In his Rule 29.15 motion, filed with the motion court, Petitioner arguably raised many of
the claims which he makes before this court. Petitioner, however, raised only one issue, which
he raises before this court, in the appeal of the motion court’s denial of post-conviction relief.
This single issue involved that aspect of Ground 11 in which Petitioner claims ineffective
assistance based on counsel’s failing to object to the prosecutor’s reference to Petitioner as a
predator, during closing argument. (Doc. 11 at 9). Notably, Petitioner did not claim before the
Missouri appellate court that counsel was ineffective for failing to object to the prosecutor’s
reference to Petitioner as a predator in the opening statement. As such, the court finds that
Petitioner has procedurally defaulted all grounds for relief raised in his § 2254 Petition, with the
exception of Petitioner’s claim, in Ground 11, that counsel was ineffective for failing to object to
the prosecutor’s closing argument. Petitioner has not offered or suggested any basis upon which
his procedural default should be excused. As such, the court finds that Petitioner’s § 2254
Petition should be dismissed as to all Grounds but that aspect of Ground 11 specified above.
III.
MERITS STANDARD
“In the habeas setting, a federal court is bound by the AEDPA 2 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 the 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

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The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254.

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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 Supreme Court precedent if “the
state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or .
. . decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). 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.” Id. at 407-08. Finally, a
state court decision involves an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings only if it is shown that the state court’s presumptively
correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Ryan v.
Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
IV.
STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL
Federal law provides that to prove ineffective assistance of counsel, a habeas petitioner
must show that: A(1) his counsel so grievously erred as to not function as the counsel guaranteed
by the Sixth Amendment; and (2) his counsel=s deficient performance prejudiced his defense.@
Auman v. United States, 67 F.3d 157, 162 (8th Cir. 1995) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).

The "performance" prong of Strickland requires a showing that

"counsel's representation fell below an objective standard of reasonableness." Strickland, 466
U.S. at 688. Counsel is Astrongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.@ Id. at 690. To
overcome this presumption, a petitioner must prove that, Ain light of all the circumstances, the

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identified acts or omissions were outside the wide range of professionally competent assistance.@
Id.
Even if a petitioner satisfies the performance component of the analysis, he is not entitled
to relief unless he can prove sufficient prejudice. Id. at 697. To do so, a petitioner must prove
that Athere is a reasonable probability that, but for counsel=s unprofessional errors, the result of
the proceeding would have been different.@ Id. at 669. The court is not required to Aaddress both
components of the [effective assistance of counsel] inquiry if [a petitioner] makes an insufficient
showing on one [component].@ Id. at 697.
V.
DISCUSSION
Petitioner claims, in Ground 11, that he received ineffective assistance based on counsel’s
failure to object to the prosecutor’s use, in closing argument, of the word “predator” to describe
Petitioner.
During the initial portion of the State's closing argument, the prosecutor stated:
[Prosecutor]: Ladies and gentlemen, all the evidence you've heard leads to but
one conclusion. One conclusion. This man over here is a predator. And he
thinks he's caught the perfect prey.
[Defense Counsel]: I'm going to object to anything that he thinks.
[The Court]: Why don't you rephrase.
[Prosecutor]: [T.V. and L.R.] were the perfect prey. But do you know what?
Now it is time for him to see justice. Now is the time for a message to be sent
that you cannot prey on persons. Just because they're homeless, just because
they're women, it doesn't mean you can defile them. That you can rape them.
That you can sodomize them. No one deserves to be treated the way those
women were treated.
(Resp. Ex. H at 5).

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First, upon considering the issue of Petitioner’s Ground 11, the Missouri appellate court
held that the two-pronged test of Strickland, 466 U.S. at 687, as set forth above, applied to
Petitioner’s claim of ineffective assistance of counsel. The Missouri appellate court proceeded to
hold:
Improper personalization occurs when the State implies that a defendant
poses a personal danger to the jurors or their families. State v. Deck, 303 S.W.3d
527, 540 (Mo. banc 2010). Improper personalization also occurs when the State
asks jurors to place themselves in the shoes of a victim or at the crime scene,
arousing fear in the jury. Id.; West v. State, 244 S.W.3d 198, 201 (Mo. App. E.D.
2008). An argument is not personalized, however, if it does not suggest a
personal danger to the jurors or their families if the defendant were to be
acquitted. West, 244 S.W.3d at 201.
Jones's characterization of the State's closing argument lacks merit. The
closing argument did not imply that Jones posed a personal danger to the jurors or
their families when referring to Jones as a “predator” and to the victims as the
“perfect prey.” At no time did the prosecutor ask the jurors to place themselves in
the shoes of the victims or at the crime scene or suggest that, if acquitted, Jones
would prey on the jurors or their families. Any objection made by trial counsel to
the closing argument based upon improper personalization would have lacked
merit, and it is well settled that counsel is not ineffective for failing to make
meritless objections. See Zink, 278 S.W.3d at 188.
Jones correctly argues that a prosecutor may not speculate as to the
defendant's future dangerousness because the defendant has the right to be tried
only for what he has done, not what he might do in the future. State v. Schaefer,
855 S.W.2d 504, 507 (Mo. App. E.D. 1993). The purpose of this rule is to
preclude argument that may excite and inflame passion or prejudice toward the
defendant. Id. However, during closing argument, the State is permitted
considerable latitude in arguing the necessity of law enforcement, the duty of the
jury to convict the defendant and prevent crime, and the consequences to society
[for] a failure to uphold the law. Id. Arguments that the jury should send a
message that society will not tolerate such conduct are permissible. State v.
Simmons, 944 S.W.2d 165, 182 (Mo. banc 1997).
Focusing on the precise words spoken by the prosecutor in closing
argument again demonstrates the speciousness of Jones's argument. The
prosecutor argued to the jurors that “[n]ow is the time for a message to be sent
that you cannot prey on persons.” We do not read into this statement any
speculation regarding Jones's future dangerousness. Rather, a more reasonable
and logical interpretation of this statement is that the prosecutor asked the jury to
send a message that the community will not tolerate such conduct. As noted

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above, such argument is permissible under Missouri law. Id. Similarly, an
objection asserting that the State impermissibly argued Jones's future
dangerousness lacks merit. Failure to make a meritless objection does not
constitute ineffective assistance of counsel. Zink, 278 S.W.3d at 188.
The record clearly refutes Jones's claims that his trial counsel was
ineffective for failing to object to the State's closing argument and failing to
request a curative instruction or mistrial due to such argument. Accordingly, the
motion court appropriately denied Jones an evidentiary hearing on his claims.
Point one is denied.
Jones, 389 S.W.3d at 257-58.
Under federal law, to establish a violation of due process based on improper argument, a
habeas petitioner must show that the prosecutor=s remarks were so egregious that they fatally
infected the proceedings and rendered Petitioner=s entire trial fundamentally unfair. See Darden
v. Wainwright, 477 U.S. 168, 181 (1986); Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir. 1985).
See also Weaver v. Bowersox, 438 F.3d 832, 840 (8th Cir. 2006) (“A prosecutor's argument
violates due process if it infect[s] the trial with unfairness.”) (quoting Darden, 477 U.S. at 181);
Culkin v. Purkett, 45 F.3d 1229, 1235 (8th Cir. 1995)); Pollard v. Delo, 28 F.3d 887, 890 (8th Cir.
1994). A habeas petitioner can meet this burden only by showing that, absent the prosecutor=s
statement, there is a reasonable probability that the jury would have returned a different verdict.
Crespo v. Armontrout, 818 F.2d 684, 687 (8th Cir. 1987). A>[T]he relevant question under federal
law is whether the prosecutor=s comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.=@ Mack v. Caspari, 92 F.3d 637, 643 (8th Cir. 1996)
(quoting Darden, 477 U.S. at 181). As further stated by the Supreme Court in Donnelly v.
DeChristoforo, 416 U.S. 637, 646-47 (1974):
[C]losing arguments of counsel, are seldom carefully constructed in [total]
before the event; improvisation frequently results in syntax left imperfect and
meaning less than crystal clear. While these general observations in no way
justify prosecutorial misconduct, they do suggest that a court should not lightly
infer that a prosecutor intends an ambiguous remark to have its most damaging

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meaning or that a jury, sitting through lengthy exhortation, will draw that meaning
from the plethora of less damaging interpretations.
Additionally, the Eighth Circuit has held:
This court has established a two-part test for reversible prosecutorial
misconduct: (1) the prosecutor's remarks or conduct must have been improper,
and (2) such remarks or conduct must have prejudicially affected the defendant's
substantial rights so as to deprive the defendant of a fair trial. See United States
v. McGuire, 45 F.3d 1177, 1189 (8th Cir. 1995); United States v. Hernandez, 779
F.2d 456, 458 (8th Cir. 1985). We employ the following three factors to
determine the prejudicial effect of prosecutorial misconduct: "(1) the cumulative
effect of such misconduct; (2) the strength of the properly admitted evidence of
the defendant's guilt; and (3) the curative actions taken by the court." Hernandez,
779 F.2d at 460; see also United States v. Eldridge, 984 F.2d 943, 946-47 (8th
Cir. 1993).
United States v. Conrad, 320 F.3d. 851, 855 (8th Cir. 2003). See also Weaver, 438 F.3d at 840
(“The court should only grant habeas corpus relief if the state’s closing argument was so
inflammatory and so outrageous that any reasonable trial judge would have sua sponte declared a
mistrial.”) (internal quotation and citation omitted).
Under federal law A[t]he trial court has broad discretion in controlling the direction of . . .
closing arguments,@ and an appellate court will not reverse the trial court=s determinations in this
regard Aabsent a showing of abuse of discretion.@ United States v. Conrad, 320 F.2d 851, 855
(8th Cir. 2003) (citation omitted). AThe facts of each case must be examined independently to
determine if the prosecutor's remarks were unduly prejudicial to the defendant.@ United States v.
Johnson, 968 F.2d 768, 770 (8th Cir. 1992).
Federal law provides that it is improper for a prosecutor to ask jurors to put themselves in
the place of a victim, but, even when a prosecutor does so, a habeas petitioner is not entitled to
relief unless the “remarks fatally infected the entire trial, and deprived the petitioner of
fundamental fairness as guaranteed under the United States Constitution.” Roberts v. Delo, 205
F.3d 349, 351 (8th Cir. 2000). See also United States v. Rodriguez, 581 F.3d 776, 802-803 (8th

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Cir. 2009) (finding no error where prosecutor asked jurors to put themselves in victims place).
Notably, in Pollard v. Delo, 28 F.3d 887, 890 (8th Cir. 1994), the Eighth Circuit found without
merit a claim of the petitioner that appellate counsel was ineffective for failing to argue that the
prosecutor’s reference, during closing argument, to the petitioner as a “predator” denied him a
fair trial in violation of the Due Process Clause. The court further held:
When considered under “the narrow [standard] of due process, and not the
broad exercise of supervisory power,” Id., we are not persuaded that it was plain
error for the trial court to allow the word “predator” to be used in reference to [the
petitioner]. Nor do we think such a reference rendered the results of [the
petitioner’s] trial unreliable. We are therefore unpersuaded that [the petitioner’s]
appellate counsel was constitutionally ineffective for failing to advance this claim
on appeal.
Id.
Likewise, in Darden, 477 U.S. at 180-81, the Court held that while the prosecutor’s
reference to the petitioner as an “animal” was “undoubtedly [] improper,” it was “‘not enough
that the prosecutors' remarks were undesirable or even universally condemned.’ The relevant
question [was] whether the prosecutors' comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” (quoting Donnelly, 416 U.S. 637).
Upon considering Petitioner’s claim that counsel was ineffective for failing to object to
the prosecutor’s calling Petitioner a predator during closing argument, the Missouri appellate
court considered the two-pronged test of Strickland, as set forth above. Also, consistent with
federal law, the Missouri appellate court considered whether Petitioner was prejudiced by the
prosecutor’s allegedly objectionable remark. See Weaver, 438 F.3d at 840; Conrad, 320 F.3d. at
855; Pollard, 28 F.3d at 890. Further, the Missouri appellate court found that, had defense
counsel objected to the prosecutor’s argument, such an objection would not have been
successful, and that, therefore, Petitioner could not establish prejudice resulting from counsel’s

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failure. See Thai v. Mapes, 412 F.3d 970, 978 (8th Cir. 2005) (“Because the promise of leniency
argument was factually meritless, his counsel was not ineffective for failing to make this
argument, and his counsel's trial strategy cannot be challenged on the basis of a meritless
claim.”); Holloway v. United States, 960 F.2d 1348, 1356 (8th Cir. 1992) (holding that there can
be no prejudice where counsel fails to raise a non-meritorious issue).
Thus, the court finds that the decision of the Missouri appellate court finding that counsel
was not ineffective for failing to object to the prosecutor’s calling Petitioner a predator, during
closing argument, is not contrary to federal law and that it is a reasonable interpretation of
federal law. Additionally, the Missouri appellate court reasonably applied federal law to the
facts of Petitioner’s case.

See Williams, 529 U.S. at 413; Darden, 477 U.S. at 180-81;

Strickland, 466 U.S. at 687; Weaver, 438 F.3d at 840; Pollard, 28 F.3d at 890. As such, the court
finds without merit Petitioner’s claim, in Ground 11, that counsel was ineffective for failing to
object, during closing argument, when the prosecutor referred to Petitioner as a predator, and it
will deny habeas relief on that basis.
VI.
CONCLUSION
For the reasons stated above, the court finds that Petitioner is not entitled to federal
habeas relief. Furthermore, Petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right.” Khaimov v.
Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the court will not grant a
certificate of appealability, and will not grant Petitioner in forma pauperis on appeal. 28 U.S.C.
§ 2253(c).
Accordingly,

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IT IS HEREBY ORDERED that the § 2254 Petition filed by Petitioner is DENIED and
DISMISSED, with prejudice (Doc. 1).
IT IS FURTHER ORDERED that a separate judgment be entered incorporating this
Memorandum and Order;
IT IS FINALLY ORDERED that a certificate of appealability and in forma pauperis on
appeal will not be issued.
Dated this 14th day of July, 2016.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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