Garvey v. Wallace

Filing 17

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the petition of Jeffrey Garvey for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not be issued in this case. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/29/2016. (NEB)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY GARVEY,
Petitioner,
v.
IAN WALLACE,
Respondent.

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Case No. 4:13-cv-01635-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Jeffrey Garvey for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Petitioner was
charged with four counts of first-degree statutory sodomy, one count of first-degree
statutory rape, two counts of first-degree child molestation, and one count of seconddegree domestic assault. The State dismissed the domestic assault charge before trial.
With respect to the statutory rape charge, after the close of evidence, the trial court found
that the evidence did not support a finding of sexual penetration during the relevant time,
and therefore instructed the jury only on the lesser-included offense of attempted
statutory rape in the first degree. Following trial, the jury found Petitioner guilty of all
counts, as modified. Petitioner was sentenced to concurrent sentences of 20 years on
each of the four statutory sodomy counts, 23 years on the attempted statutory rape count,
and 10 years on each of the two child molestation counts.
In his petition for federal habeas relief, Petitioner raises eight grounds for relief,
three alleging trial court errors during voir dire and trial, and five alleging ineffective

assistance of defense counsel for failing to investigate and introduce certain evidence and
witnesses at trial. For the reasons set forth below, habeas relief will be denied.
BACKGROUND
Trial
Trial commenced on April 28, 2009. During voir dire, the State asked whether
any venirepersons or their close friends or family members had been the victim of a
sexual assault. Several venirepersons, including venirepersons L.L. and C.L., responded
affirmatively. Venireperson L.L. indicated that she was the victim of a sexual assault by
a stranger 15 or 16 years ago when she was 31 years old. L.L. stated that she did not
really think about the sexual assault anymore. She further stated that she could follow the
trial court’s instruction and be fair to both sides. (Resp. Ex. B. at 39-40.)
Venireperson C.L. indicated that his wife had been sexually abused by her stepfather when she was a child. C.L. stated that while he and his wife had discussed the
abuse at some point in the past, they had not continued to talk about it. C.L. stated that
he could be fair and impartial to both sides. Id. at 42-43.
During Petitioner’s portion of the voir dire, defense counsel asked L.L. and C.L.
additional questions about whether their experiences would affect their ability to be fair
and impartial. In response to defense counsel’s questioning, C.L. stated that it would not
affect him if the allegations in this case were similar to what happened to his wife, that
his wife’s experience would not make him lean toward one side or the other, and that he
could consider the full range of punishment. Id. at 120-21. L.L. likewise stated that it

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would not affect her if the allegations in this case were similar to what happened to her
and that she had no issues with considering the full range of punishment. Id. at 126-27.
The trial court struck for cause several venirepersons who were victims or
relatives of victims of sexual abuse and who indicated that they could not be fair or
impartial. However, defense counsel also challenged for cause seven venirepersons who
were victims or relatives of victims of sexual abuse but who indicated that they could be
fair and impartial, including L.L. and C.L. The trial court denied each of these
challenges, except that the trial court struck one such venireperson because she had a
hardship due to a medical appointment. Id. at 182-90. Both L.L. and C.L. served on the
jury.
The evidence at trial showed the following. Petitioner dated a woman, T.B., from
2002 to 2006, during which time T.B. and her minor daughter, O.B., lived in Petitioner’s
house. O.B. was in third grade when her mother and she moved in with Petitioner, and
O.B. was in seventh grade when they moved out. Throughout this time, T.B. would leave
O.B. alone with Petitioner when T.B. had to work. O.B. had a history of behavioral
problems, including attention-deficit/hyperactivity disorder (“ADHD”), which sometimes
resulted in arguments in the household.1
On direct examination by the State, O.B. testified that, from the time she was in
the fourth grade until she was in the sixth grade, Petitioner touched O.B.’s breasts and

1

Petitioner also tried to introduce evidence that O.B. had a recent history of
psychiatric treatment, for cutting herself and for attempted suicide, but the trial court
ruled such evidence was inadmissible, and defense counsel did not make an offer of proof
to preserve this issue for appeal.
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vagina with his hands and tongue approximately two to three times a month when they
were home alone together. O.B. testified that when she was in sixth grade, Petitioner
started touching her vagina with his penis, and that Petitioner tried to have sexual
intercourse with her on several occasions but succeeded only once, during the last
attempt.
In February 2006, when O.B. was 13 years old and in the seventh grade, Petitioner
and O.B. had an argument over what O.B. wanted to wear to school. Petitioner spanked
O.B., resulting in an argument between T.B. and O.B. regarding how to discipline O.B.,
after which T.B. and O.B. moved out of Petitioner’s house. Shortly thereafter, around
Valentine’s Day, Petitioner tried to reconcile with T.B. by sending T.B. flowers and
sending O.B. a card with money in it. On or about February 18, 2006, T.B. asked O.B. to
call and thank Petitioner for the card, but O.B. refused. When it appeared that T.B. was
going to reunite with Petitioner, O.B. told her mother that she did not want to go back to
Petitioner’s house. T.B. pressed O.B. as to why, including by asking if Petitioner had
touched O.B. inappropriately. O.B. responded to this question affirmatively. This was
the first time that O.B. disclosed to T.B. that Petitioner had touched her inappropriately.
T.B. took O.B. to the hospital the next day, and O.B. underwent a physical examination,
including a pelvic examination, performed by Peter Berglar, M.D.2
On cross-examination by defense counsel, O.B. admitted that her previous
statements as to the number of times Petitioner had sexual intercourse with her
2

Petitioner later had another pelvic examination performed by a different doctor,
but that doctor did not testify at trial, and evidence of that examination was not
introduced at trial, as it was cumulative of evidence of Dr. Berglar’s examination.
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contradicted her trial court testimony. Specifically, O.B. admitted that, at a preliminary
hearing on July 2, 2006, O.B. testified that Petitioner had sexual intercourse with her
between 10 and 20 times. Evidence was also introduced that, in a forensic interview at
the Children’s Advocacy Center of Eastern Missouri on February 27, 2006, O.B. stated at
different points during the interview that Petitioner had sexual intercourse with her once
and that he did so multiple times. No evidence was introduced regarding what O.B. said
in her deposition about the number of times Petitioner had sexual intercourse with her.
O.B. also testified on cross-examination that she could not describe the physical
appearance of Petitioner’s penis, but O.B. testified during this line of questioning that she
believed “most penises look the same.” Id. at 399.
After the close of the State’s case, Petitioner called Dr. Berglar to testify about the
results of his pelvic examination of O.B. in February 2006. Dr. Berglar testified that
O.B.’s pelvic examination was normal, her genitals appeared normal, and there was no
evidence of tearing, scarring, or notching around O.B.’s genitals.
On cross-examination, Dr. Berglar testified that he saw approximately six cases of
alleged sexual abuse per year during his five years of practice. The State asked Dr.
Berglar about what he would expect to see in a pelvic examination if sexual penetration
had occurred six months before the examination. Dr. Berglar indicated that, in such
cases, the hymen might appear normal or there could be notching, and that whether there
would be any physical findings would depend upon several factors, including the age of
the child, the amount of force used, and the amount of time that has elapsed. He testified
that the absence of physical findings did not preclude the possibility that penetration had
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occurred several months before the examination. The State then asked about Dr.
Berglar’s experiences in other examinations where sexual abuse was alleged. Defense
counsel objected to this question as irrelevant, and the trial court overruled the objection.
In response to the State’s question, Dr. Berglar testified that there were no physical
indicators of sexual abuse in the “overwhelming majority” of those examinations.
Petitioner also testified in his own defense and denied that he had any sexual
contact with O.B. Petitioner testified about one instance when he walked in on T.B.
taking photographs of O.B. and a female friend around the same age (12 or 13 years old
at the time). The pictures were of the two girls in T.B.’s “adult clubbing clothes.”
Petitioner testified that he got upset about the pictures and sent the friend home.
After the close of evidence, the trial court found that there was not sufficient
evidence of actual penetration to submit the statutory rape charge to the jury, but that
there was sufficient evidence to submit the lesser-included offense of attempted statutory
rape.
Before closing arguments, the trial court instructed the jurors that closing
arguments were not evidence and that the jurors should base their verdicts on the
evidence and the instructions. In closing argument, defense counsel argued that the
inconsistencies in O.B.’s statements regarding the extent of sexual abuse showed that
O.B. was lying. Defense counsel further argued that if witnesses lied to the jury about
one thing, the jury “had to throw their testimony away.” Id. at 608-09.

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In rebuttal, the State argued that O.B.’s deposition testimony regarding the number
of times Petitioner had sexual intercourse with her was consistent with her trial
testimony, and that defense counsel had thus “lied” to the jury about O.B.’s testimony
being contradictory. The State also argued that defense counsel “lied” when he told the
jury that they had to take an “all or nothing” approach to O.B.’s testimony. Defense
counsel objected to each of these statements as an improper personal attack on the
attorney, and the trial court sustained both objections. Defense counsel did not ask for
any further relief. Id. at 621-24.
Direct Appeal
On direct appeal, Petitioner argued that (1) the trial court erred in denying
Petitioner’s challenges for cause to jurors C.L. and L.L., or that the court committed plain
error in failing to further inquire into the qualification of these individuals; (2) the trial
court plainly erred in failing to sua sponte declare a mistrial or to admonish the
prosecutor after the prosecutor twice told the jury in closing argument that defense
counsel had lied to them; and (3) the trial court erred in overruling Petitioner’s objection
to Dr. Berglar’s testimony about the frequency with which he had found physical
indications of sexual trauma in other pelvic examinations he had conducted.
The Missouri Court of Appeals rejected these claims. Regarding Petitioner’s first
claim, the appellate court found that a venireperson’s past exposure to sexual abuse or
assault did not automatically render him or her unqualified to serve on a jury involving
similar allegations. Rather, the appellate court held, the relevant question is whether the
venirepersons’ experiences or views “would prevent or substantially impair their ability
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to perform as jurors.” Id. The appellate court found that because C.L. and L.L. both
stated unequivocally that they could be fair and impartial, and that they could follow the
trial court’s instructions, the trial court did not err in refusing to strike these jurors for
cause or in failing to conduct an independent inquiry into these jurors’ qualifications.
Regarding Petitioner’s second claim, the Missouri Court of Appeals held that the
prosecutor’s remarks during closing argument did not rise to the level of impropriety that
would require a mistrial or further instruction. Specifically, the appellate court held that,
under plain error review, improper closing arguments do not constitute reversible error
unless the improper remark had a decisive effect on the outcome of trial. The appellate
court found that, here, the prosecutor’s rebuttal argument that defense counsel had lied
was “based upon the prosecutor’s interpretation of the evidence, namely that defense
counsel was not being truthful in arguing that O.B.’s testimony was wholly inconsistent
with her prior statements.” (Resp. Ex. G at 12.) The appellate court found that because
the jury was capable of determining which characterization of O.B.’s testimony was
accurate, and because the jury was instructed that closing arguments were not evidence,
the trial court did not plainly err in failing to sua sponte declare a mistrial or admonish
the prosecutor.
Regarding Petitioner’s third claim, the Missouri Court of Appeals held that the
trial court did not abuse its discretion in admitting Dr. Berglar’s testimony regarding his
findings in other pelvic examinations involving allegations of sexual abuse. The
appellate court held that the testimony was relevant to negate the inference raised by
Petitioner that the absence of physical findings in O.B.’s pelvic examination undercut
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O.B.’s allegations of sexual penetration. The appellate court further found that there was
little prejudice to Petitioner. The appellate court noted that, although Dr. Berglar’s
testimony could support the State’s theory that a lack of physical evidence does not
exclude the possibility of penetration, it could also support an inference favoring
Petitioner that “the majority of girls who alleged that they have been sexually abused are
not truthful.” Id.
State Postconviction Proceedings
In his motion for postconviction relief, filed with the assistance of retained
counsel, Petitioner claimed that his defense counsel at trial was ineffective in (1) failing
to investigate T.B.’s mental health history, including that T.B. (like her daughter) had cut
herself during adolescence, which might have impaired her credibility as a witness at
trial; (2) failing to retain a children’s sexual abuse expert to testify about the differences
between pedophiles who are sexually attracted to pre-pubescent children and those
attracted to post-pubescent adolescents to show that it would be unlikely for someone to
commit both pre-pubescent and post-pubescent child molestation (as Petitioner had been
accused of doing), and to testify that O.B. did not display behaviors typically displayed
by child sexual abuse victims; (3) failing to investigate and call as a witness O.B.’s friend
to corroborate Petitioner’s testimony that he objected to T.B.’s taking of photographs of
the two girls in adult clubbing clothes; (4) failing to introduce evidence about Petitioner’s
vitiligo, a medical condition which discolored Petitioner’s skin to form what appeared to
be an approximately two-inch wide birthmark under the head of Petitioner’s penis, in
order to impeach O.B.’s credibility (because O.B. could not describe Petitioner’s penis);
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and (5) failing to investigate or interview potential character witnesses to testify on behalf
of Petitioner.3
An evidentiary hearing was held on February 2, 2012, at which Petitioner and
defense counsel testified. With respect to Petitioner’s first claim, Petitioner testified that
he had asked defense counsel to investigate T.B.’s mental health history in order to
determine whether there was a basis to attack her credibility. Defense counsel testified
that he did not remember whether Petitioner requested him to investigate T.B.’s mental
health but that defense counsel believed the best strategy at trial was to focus on
impeaching O.B.’s credibility and to assert that O.B. lied out of anger at Petitioner for
spanking her.
Regarding Petitioner’s second claim, Petitioner testified that he had asked defense
counsel to retain a children’s sexual abuse expert to testify that O.B. did not display
behaviors typically displayed by child sexual abuse victims and to testify regarding the
differences between pedophiles attracted to pre-pubescent children and those attracted to
post-pubescent adolescents, but that his attorney did not retain such an expert. Defense
counsel testified that the reason he did not call such a sexual abuse expert was that he
worried that it would open the door to evidence that O.B.’s psychiatric problems (namely,
cutting herself and attempting suicide after the alleged abuse) were caused by Petitioner’s

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Petitioner also asserted two other claims which he does not raise in his federal
habeas petition. In these claims, Petitioner asserted that defense counsel was ineffective
in failing to preserve for appeal his attempt to introduce evidence of O.B.’s psychiatric
treatment for cutting herself and attempting suicide, and defense counsel was ineffective
in failing to retain a medical expert to rebut the State’s theory that hymens heal rapidly
such that there is not always physical evidence of penetration.
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sexual abuse. Defense counsel further testified that, in his experience trying sexual abuse
cases, there is not a common list of behaviors normally displayed by child sexual abuse
victims.
With respect to Petitioner’s third claim, defense counsel testified that he did not
contact O.B.’s friend because defense counsel worried that the friend’s testimony might
favor O.B. or that the friend might know something about a video that counsel was
hoping that the State would not discover or introduce.4 Defense counsel further testified
that he did not attempt to contact the friend because he did not believe that the issue of
whether Petitioner objected to T.B. taking photographs of the two girls in adult clubbing
clothes (the anticipated subject of the friend’s testimony) was disputed.
With respect to Petitioner’s fourth claim, Petitioner testified and introduced
medical records to document that he suffers from vitiligo. Petitioner testified that he had
told his attorney about the condition and the name of his treating physician. Petitioner
also offered a photograph of his penis with the distinguishing mark as an exhibit in the
post-conviction hearing. Defense counsel testified that O.B.’s testimony at the
preliminary hearing regarding whether she noticed anything unusual about Petitioner’s
penis was too vague to indicate whether O.B. knew about Petitioner’s vitiligo. Defense
counsel testified that he worried that it would be too risky to get a more specific answer
at trial from O.B. about whether she remembered anything about Petitioner’s penis,
especially because T.B. knew about Petitioner’s vitiligo and might have told O.B. about

4

Defense counsel did not describe, and the record does not contain evidence of, the
contents of this video.
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it. Defense counsel testified that if O.B. correctly described the appearance of
Petitioner’s penis at trial, it would have significantly bolstered her testimony.
Regarding Petitioner’s final claim, Petitioner testified that he had given his
attorney the names of several potential character witnesses, including business associates
he knew from his ownership of a small business and friends he gained while training to
be a pilot and playing in a local band. Defense counsel testified that, although he talked
generally about character witnesses with Petitioner, he did not call any character
witnesses during trial because there was an issue in Petitioner’s past that defense counsel
did not want to come out on cross examination.5 Defense counsel further testified that he
did not normally call character witnesses in sexual abuse cases because of problems that
such witnesses have on cross-examination.6
The motion court rejected all of Petitioner’s claims. The motion court held that
defense counsel’s choice to focus on the inconsistencies in O.B.’s statements and on
O.B.’s motive to lie because of her strained relationship with Petitioner was a reasonable
exercise of trial strategy. The motion court found that defense counsel reasonably chose
not to attack T.B.’s credibility by using her mental health history because T.B. was not a
witness to any of the alleged crimes.
The motion court further held that defense counsel made reasonable efforts to
secure a children’s sexual abuse expert, and his inability to locate any such experts who
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Defense counsel did not describe, and the record does not indicate, what this issue

was.
6

Defense counsel did call character witnesses during the sentencing phase of trial,
namely, Petitioner’s mother and one of Petitioner’s friends.
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would have given favorable testimony to Defendant, was not ineffective assistance of
counsel.7
With respect to defense counsel’s failure to call O.B.’s friend as a witness to
testify about the photographs taken by T.B., the motion court held that defense counsel’s
strategy was reasonable because the photographs were not particularly provocative or
significant to the charges against Petitioner. In any event, the motion court held, the
photographs themselves and the circumstances surrounding the making of the
photographs were put before the jury and further testimony from the friend would have
been merely cumulative.
Regarding defense counsel’s failure to introduce evidence of Petitioner’s vitiligo,
the motion court found that defense counsel had a rational basis for this strategic
decision, as there was a significant risk that O.B. could accurately describe the physical
mark on Petitioner’s penis caused by the vitiligo, which would have only bolstered O.B.’s
testimony.
Finally, the motion court held that defense counsel reasonably chose not to call
character witnesses as the “dubious benefits” of such witnesses’ testimony was not worth

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The motion court’s holding in this regard appears to misstate the record. Defense
counsel testified at the post-conviction motion hearing that he only attempted to locate a
medical expert to rebut the State’s expert regarding the rapid healing of the hymen (a
claim raised in Petitioner’s postconviction motion but not in his federal habeas petition).
As discussed above, defense counsel did not testify that he attempted to locate a
children’s sexual abuse expert; rather, he testified that he chose not to call such an expert
because he worried that such testimony would open the door to unfavorable testimony,
such as that O.B.’s self-harming behavior was indicative of sexual abuse. But counsel
did testify that, based on his experience in trying sexual abuse cases, there is no common
list of behaviors displayed by victims.
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the risk that the witnesses would provide unfavorable testimony on cross-examination.
(Resp. Ex. I at 55.)
The Missouri Court of Appeals affirmed the denial of postconviction relief on all
claims, holding that defense counsel’s actions were well within the boundaries of
reasonable trial strategy and that Petitioner had not shown that different choices would
have changed the outcome of the trial.
Federal Habeas Petition
In his federal habeas petition, Petitioner asserts that his constitutional rights were
violated by (1) the trial court’s denial of Petitioner’s challenges for cause to jurors C.L.
and L.L.; (2) the trial court’s failure to sua sponte declare a mistrial or admonish the
prosecutor for his comments during closing argument; (3) the trial court’s admission of
Dr. Berglar’s testimony about the results of other pelvic examinations; (4) defense
counsel’s failure to introduce evidence of T.B.’s mental health history; (5) defense
counsel’s failure to secure a children’s sexual abuse expert to explain the differences
between pedophiles who are sexually attracted to pre-pubescent children and those
attracted to post-pubescent adolescents;8 (6) defense counsel’s failure to investigate and
call as a witness O.B.’s friend to corroborate Petitioner’s testimony that he objected to
T.B.’s taking of photographs of the two girls in adult clubbing clothes; (7) defense
counsel’s failure to introduce evidence about Petitioner’s vitiligo; and (8) defense

8

In his federal habeas petition, Petitioner does not mention that he sought such an
expert to testify that O.B. did not display behaviors typically displayed by child sexual
abuse victims.
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counsel’s failure to investigate or interview potential character witnesses to testify on
behalf of Petitioner.
Respondent argues that Claims 2 and 3 are not properly before this Court.
Respondent argues that Claim 2, regarding the trial court’s failure to declare a mistrial or
admonish the prosecutor for improper closing argument, was defaulted in the state trial
court because Petitioner did not ask the trial court for such relief. Respondent argues
that, although the state appellate court exercised its discretion to review this claim for
plain error, such plain-error review does not excuse the default so as to permit federal
habeas review. Respondent argues that Claim 3, regarding the trial court’s admission of
Dr. Berglar’s testimony about other examinations, asserts an error of state law that is
outside the scope of federal habeas review. In any event, Respondent argues that all of
Petitioner’s claims lack merit.
In his reply, Petitioner argues that the Court should consider the merits of each of
his claims because each claim asserts a deprivation of Petitioner’s constitutional right to a
fair trial.
DISCUSSION
Where a claim has been adjudicated on the merits in state court, the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) provides that application for a writ of
habeas corpus cannot be granted unless the state court’s 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

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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 proceedings.
28 U.S.C. § 2254(d).
“[C]learly established Federal law” for purposes of § 2254(d)(1) includes
only the holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions. And an ‘unreasonable application of’ those holdings must be
objectively unreasonable, not merely wrong; even clear error will not
suffice. To satisfy this high bar, a habeas petitioner is required to show that
the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (citations omitted).
Trial Court Errors (Claims 1-3)
Claim 1 (failure to strike jurors for cause)
Under the Sixth Amendment, “the accused shall enjoy the right to . . . an impartial
jury of the State and district wherein the crime shall have been committed.” U.S. Const.
amend. VI. “[P]art of the guarantee of a defendant's right to an impartial jury is an
adequate voir dire to identify unqualified jurors.” Morgan v. Illinois, 504 U.S. 719, 729
(1992). In federal habeas proceedings, the district court must afford the state trial court
“substantial deference in determining juror bias.” Munt v. Grandlienard, 829 F.3d 610,
615 (8th Cir. 2016). In order to prove actual bias, the habeas petitioner must “point to
clear and convincing evidence that [the juror in question] made an impermissible
affirmative statement that is unequivocal.” Id. (citation omitted).
Here, Petitioner has pointed to no such evidence. Indeed, the only unequivocal
statements that jurors C.L. and L.L. made were that, in fact, they could be fair and
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impartial, they could follow the trial court’s instructions, their past experiences would not
affect their ability to be impartial, and they could consider the full range of punishment.
Accordingly, the Court will deny Claim 1.
Claim 2 (failure to sua sponte declare a mistrial or admonish the prosecutor)
Respondent correctly asserts that Claim 2 was procedurally defaulted in state court
because Petitioner never asked the trial court to declare a mistrial or to admonish the
prosecutor for improper closing argument. See State v. Johnson, 663 S.W.2d 265, 266
(Mo. Ct. App. 1983) (holding under Missouri law that a litigant failed to preserve his
claim that the trial court should have declared a mistrial after a prosecutor’s improper
closing because the litigant’s objection to the closing was sustained and the litigant did
not ask for further relief). Under the doctrine of procedural default, a federal habeas
court is barred from considering the merits of a claim not fairly presented to the state
courts, absent a showing by the petitioner of cause for the default and prejudice resulting
therefrom, or that he is actually innocent. E.g., Gordon v. Arkansas, 823 F.3d 1188, 1196
(8th Cir. 2016) (quotation and citation omitted). A state appellate court’s discretionary
plain-error review of an unpreserved claim does not constitute cause to excuse a
procedural default. Clark v. Bertsch, 780 F.3d 873, 877 (8th Cir. 2015)
In any event, Claim 2 fails on the merits. The clearly established federal law is
that “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 (2012) (citation omitted).
“Thus, [a federal court] may grant . . . federal habeas corpus relief only if the prosecutor’s
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closing argument was so inflammatory and so outrageous that any reasonable trial judge
would have sua sponte declared a mistrial.” Sublett v. Dormire, 217 F.3d 598, 600 (8th
Cir. 2000) (citation omitted). “[T]he combination of the strict due process standard of
constitutional review, the deferential review mandated by the AEDPA, and our less
reliable vantage point for gauging the impact of closing argument on the overall fairness
of a trial result[s] in an exceptionally limited review” of this issue. Id.
Here, Petitioner has not shown that the prosecutor’s comments that defense
counsel was “lying” about the inconsistencies in O.B.’s testimony, even if improper, so
tainted the trial proceedings that Petitioner’s right to due process was denied. The jury
was instructed beforehand that closing argument was not evidence, and the state appellate
court reasonably found that the jury was capable of determining which characterization of
O.B.’s testimony was accurate. See id. at 601 (holding that concerns over a prosecutor’s
improper closing argument did not render a trial fundamentally unfair “in light of the
jury’s common sense ability to put aside a particular type of overzealous advocacy with
the help of the court’s standard instruction that arguments of counsel are not evidence”).
Claim 2 will be denied.
Claim 3 (admission of Dr. Berglar’s testimony regarding other examinations)
It is not within a federal habeas court’s province “to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Only when the
“evidentiary ruling infringes upon a specific constitutional protection or is so prejudicial
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that it amounts to a denial of due process” will the ruling justify habeas corpus relief.
Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). “To carry that burden, the petitioner
must show that there is a reasonable probability that the error complained of affected the
outcome of the trial—i.e., that absent the alleged impropriety the verdict probably would
have been different.” Gee v. Groose, 110 F.3d 1346, 1350 (8th Cir. 1997) (en banc); see
also Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998).
Here, the Court cannot say that the trial court’s evidentiary ruling was
unreasonable. In any event, the trial court’s evidentiary ruling, affirmed on appeal, did
not infringe upon any constitutional protection and was not so prejudicial as to amount to
a denial of due process. The state appellate court found that Dr. Berglar’s testimony
regarding his other examinations was relevant to negate the inference raised by Petitioner
that the absence of physical findings in O.B.’s pelvic examination indicated that no
sexual penetration occurred. But because the trial court reduced the statutory rape charge
to attempt, the State did not need to prove that sexual penetration occurred in order to
convict Petitioner. Therefore, there is no reasonable probability that the exclusion of Dr.
Berglar’s testimony would have changed the outcome of trial. The Court will deny
Claim 3.
Ineffective Assistance of Counsel (Claims 4-8)
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show
ineffective assistance of counsel, a habeas petitioner must show both that “[his] counsel’s
performance was deficient” and that “the deficient performance prejudiced [his]
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defense.” Id. at 687; see also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th
Cir. 2014). To show deficient performance, the petitioner must show “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and the
petitioner bears a heavy burden in overcoming “a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance” and “might be
considered sound trial strategy.” Id. at 689 (citations omitted). To show prejudice, the
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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
When, as here, an ineffective assistance claim has been addressed by the state
court, this Court must bear in mind that “[t]aken together, AEDPA and Strickland
establish a ‘doubly deferential standard’ of review.” See Williams v. Roper, 695 F.3d
825, 831 (8th Cir. 2012) (citation omitted). It is not sufficient for a petitioner to “show
that he would have satisfied Strickland’s test if his claim were being analyzed in the first
instance.” Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he must show that the
[state court] applied Strickland to the facts of his case in an objectively unreasonable
manner.” Id. at 699.
Here, the state courts reasonably held that defense counsel’s strategy to focus on
O.B.’s credibility by pointing out the inconsistencies in her previous statements, instead
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of introducing the other impeachment evidence and witnesses suggested by Petitioner,
did not constitute ineffective assistance of counsel. The state courts applied the correct
legal principles to the claim and reasonably found that defense counsel did not perform
deficiently in choosing not to introduce evidence of T.B.’s mental health history (Claim
4) and Petitioner’s vitiligo (Claim 7), and choosing not to call as witnesses a children’s
sexual abuse expert (Claim 5), O.B.’s friend (Claim 6), and character witnesses (Claim
8). Moreover, in light of the other evidence of Petitioner’s guilt at trial—most
importantly, O.B.’s testimony—the state courts reasonably found that the outcome of the
trial would not have been different had defense counsel introduced such evidence.
With respect to defense counsel’s decision not to introduce evidence of T.B.’s
mental health history and of Petitioner’s vitiligo (Claims 4 and 7, respectively), “how
much to impeach a witness is generally a matter of trial strategy left to the discretion of
counsel.” Dansby v. Hobbs, 766 F.3d 809, 835 (8th Cir. 2014). As the state courts noted,
T.B. was not a crucial witness for the State in this case, as she had no personal knowledge
of the alleged crimes. Thus, even if the fact that she suffered from mental health issues in
adolescence was admissible at trial, there is little chance that introduction of such
evidence would have changed the result of trial.
Likewise, although it is a closer call, it was not unreasonable for the state courts to
find that defense counsel exercised sound trial strategy in deciding not to introduce
evidence of Petitioner’s vitiligo, given the risk that O.B. knew about the condition. But
even if defense counsel’s performance in this regard was deficient, it was not sufficiently
prejudicial. O.B.’s testimony did not indicate how much attention she paid to the
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appearance of Petitioner’s penis during the various instances of abuse, so impeachment
on this issue would not have been likely to significantly impair her credibility.
With respect to defense counsel’s decision not to retain a children’s sexual abuse
expert to testify about the differences between pedophiles who are attracted to younger
children and those attracted to older children (Claim 5), Petitioner has not (either in his
state court motion for postconviction relief or in his federal habeas petition) presented
any evidence or basis to believe that such an expert existed who would have been
available and provided favorable testimony. Nor has Petitioner indicated how such
testimony would have benefitted him at trial, particularly considering that O.B. alleged
abuse during a relatively short time frame (fourth to sixth grade) during which it was not
suggested that she aged or matured significantly. Thus, although defense counsel did not
attempt to contact such an expert (contrary to the state postconviction court’s findings),
defense counsel’s failure in this regard did not rise to the level of ineffective assistance of
counsel.
Finally, with respect to defense counsel’s failure to call as witnesses O.B.’s friend
and character witnesses (Claims 6 and 8, respectively), the state courts reasonably
concluded that these decisions were matters of sound trial strategy, given the risk that
these witnesses would testify unfavorably and may know about evidence that defense
counsel did not want disclosed to the State. But even if defense counsel’s failure to call
these witnesses constituted deficient performance, Petitioner has not demonstrated
prejudice. Even if O.B.’s friend’s would have corroborated Petitioner’s testimony that he
objected to T.B.’s taking of photographs of the two girls in adult clubbing clothes, as
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Petitioner hoped, this issue was not particularly significant to the charges against
Petitioner. Likewise, although Petitioner has identified potential character witnesses in
the form of his business associates and friends, Petitioner has not shown that these
character witnesses would have provided compelling evidence to disprove the evidence
of Petitioner’s guilt. Kornhardt v. United States, No. 4:13-CV-214 CAS, 2016 WL
898881, at *12 (E.D. Mo. Mar. 9, 2016) (holding that, in view of the evidence against the
petitioner, the petitioner had not shown that defense counsel’s failure to call character
witnesses would have changed the outcome of trial).
For these reasons, the Court will deny Claims 4 through 8.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court’s
assessment of the procedural or substantive issues presented in this case debatable or
wrong, for purposes of issuing a Certificate of Appealability under 28 U.S.C.
§ 2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (standard for issuing a
Certificate of Appealability) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Jeffrey Garvey for a writ of
habeas corpus is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not be
issued in this case.

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A separate Judgment shall accompany this Memorandum and Order.

_________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September, 2016.

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