Ewing v. Russell

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Clerk of Court shall substitute Troy Steele in place of Terry Russell as Respondent. IT IS FURTHER ORDERED the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. [Docs. 1 , 7 .] IT I IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Byron Ewing for a Certificate of Appealability will be DENIED. Signed by Magistrate Judge Nannette A. Baker on 9/28/2016. (GGB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BYRON EWING,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
TROY STEELE 1,
Respondent.

Case No. 4:13-CV-1757 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Byron Ewing’s Petition for Writ of Habeas
Corpus. [Docs. 1, 7 2.] Respondent filed a response to the Petition for Writ of Habeas Corpus.
[Doc. 14.] Ewing filed a Reply Brief. [Doc. 18.] The parties have consented to the jurisdiction
of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 13.]
For the reasons set forth below, Ewing’s petition for writ of habeas corpus will be denied.
I.

Background
On May 22, 2009, after a jury trial, Ewing was found guilty of statutory rape in the first

degree, child molestation in the first degree, and sexual misconduct involving a child by indecent
exposure. (Resp’t Ex. B at 78-80.)
Viewing the facts in the light most favorable to the verdict the following evidence was
adduced at trial: On January 30, 2007, Michelle Johnson’s ten-year old daughter (S.K.) wrote a

1

During the pendency of the Petition, Troy Steele became the warden of the Eastern Reception, Diagnostic and
Correctional Center. Pursuant to Rule 2 of the Rules Governing Section 2254 Cases in the United States District
Courts, the Respondent is the state officer who has custody. Therefore, the Clerk of Court is ordered to add Troy
Steele as the Respondent and remove Terry Russell’s name.
2
The Court ordered Ewing to file a redacted Petition that removed the names of children that he had included in his
original Petition. [Doc. 5.]

letter to Johnson stating that Ewing had raped her. 3 The letter S.K. gave to Johnson, later
admitted into evidence without objection, stated as follows:
Mom [Ewing] rape me I didn’t tell you when he was out
because he said if I tell any body he will kill you when he
got put in jail you said you don’t want him to be in their for
life but I do and It been herting me so I’m fainly telling you
so this is a relift. Your baby girl [S.K.].
Johnson called the police, and S.K. wrote a brief note to the detective, stating that Ewing pulled
down her jeans and raped her.
S.K. was interviewed on February 19, 2007, at the Child Advocacy Center (CAC). S.K.
told the interviewer that Ewing raped her on December 22, 2006; described the act; and said that
Ewing told her not to tell anyone or he would kill Johnson. On December 22, 2006, Ewing,
Johnson, S.K., Johnson’s other daughters, a cousin, and an aunt, had been getting ready to travel
to Boston, when Johnson took her other daughters to the store, leaving S.K. at home alone with
Ewing. When S.K.’s aunt arrived at Johnson’s house, S.K. ran out of the house and jumped into
her aunt’s van, which she refused to leave until Johnson returned from the store.
In February of 2009, S.K. was watching a video at the prosecutor’s office when she wrote
a note to the prosecutor, “It happened a lot of times before I formally told my mom when he was
loked [sic] up.” S.K. was sent back to the CAC for a second interview on February 12, 2009.
S.K. told the interviewer, in detail, that Ewing had sexually assaulted her when she was in the
second or third grade and staying in a motel with Johnson and Ewing. S.K. said Appellant told
her not to tell anyone or Johnson would get mad. S.K. also recounted another occasion when she
was in the basement with Ewing when he masturbated to ejaculation.

3

These facts are taken directly from the Supplemental Memorandum accompanying the Missouri Court of Appeals
decision in Ewing’s direct appeal. See Resp’t Ex. F. A state court’s determination of a factual issue shall be
presumed to be correct. 28 U.S.C. § 2254.

2

After the jury found Ewing guilty, the trial court sentenced him as a prior and persistent
offender, to natural life in prison without the possibility of probation or parole on count I for rape
of a child, fifteen years for count II for child molestation, and four years for Count III for
indecent exposure. (Resp’t Ex. B at 91-93.) All of the sentences run concurrently. (Resp’t Ex.
B at 92.)
II.

Standard of Review
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in

violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ,
a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91
(2011). “In general, if a convicted state criminal defendant can show a federal habeas court that
his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of
habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 133 S.Ct.
1911, 1917 (2013). The Anti-Terrorism 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 this
statute’s effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In
conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding
whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a
decision that is contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, 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). A determination of a factual issue made by a state court is
presumed to be correct unless the petitioner successfully rebuts the presumption of correctness
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

3

For purposes of § 2254(d)(1), the phrase “clearly established federal law refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the
relevant state court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). “In other words,
clearly established federal law under § 2254(d)(1) is the governing legal principle or principles
set forth by the Supreme Court at the time the state court renders its decision.” Id. at 72. To
obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent
which he thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris,
459 F.3d 849, 853 (8th Cir. 2006).
A state court’s decision is “contrary to” clearly established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from [the] precedent.’”

Penry v.

Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)).
A state court decision is an unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case. Id. (citing Williams, 529 U.S. at 407–408). “A federal habeas
court making the unreasonable application inquiry should ask whether the state court’s
application of clearly established federal law was objectively unreasonable.” Penry, 532 U.S. at
793. “A state court decision involves ‘an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings,’ 28 U.S.C. § 2254(d)(2), only if it is shown
that the state court’s presumptively correct factual findings do not enjoy support in the record.”
Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute error is
inconsistent with the presumption that state courts know and follow the law.” Woodford v.

4

Visciotti, 537 U.S. 19, 24 (2002). AEDPA’s highly deferential standard demands that state court
decisions be given the benefit of the doubt. Id.
III.

Discussion
Ewing presents five issues for review. First, he claims ineffective assistance of counsel,

because trial counsel failed to call Officer Alim Poindextor as a witness to refute the testimony
of the complaining witnesses. He also contends counsel failed to impeach the credibility of
state’s witness Michelle Johnson on two convictions of false burglary charges. Next, Ewing
presents three claims of trial court error. Ewing alleged that the trial court should have declared
a mistrial during the state’s opening statement to the jury panel. Then, Ewing asserts that the
trial court erred by allowing the state to argue to the jury about Ewing’s failure not to testify.
Finally, Ewing contends the trial court erred when it overruled his objections to the state’s
misstatement of facts in the closing argument. Respondent contends that Ewing’s claims lack
merit and the habeas petition should be denied.
A.

Ineffective Assistance of Counsel

“The Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial system to
produce just results.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “An accused is
entitled to be assisted by an attorney, whether retained or appointed who plays the role necessary
to ensure that the trial is fair.” Id. To succeed in a claim “that counsel’s assistance was so
defective as to require reversal of a conviction,” a petitioner must establish (1) that the trial
counsel’s performance fell below an objective standard of reasonableness and (2) that this
deficient performance prejudiced the Petitioner’s defense. Strickland, 466 U.S. at 687-88.

5

The “performance” component of Strickland requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
To satisfy this prong, a petitioner must first identify the specific acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment. Id. at 690. The
court must then examine the totality of the circumstances in order to determine whether “the
identified acts or omissions were outside the wide range of professionally competent assistance.”
Id. In making this determination, the court should recognize that trial counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. “Miscues and omissions are inevitable in any case
and there is no such thing as a perfect trial.” Medearis v. U.S., 469 F.Supp.779, 785 (D.S.D.
2006).
To satisfy the “prejudice” component of Strickland, a petitioner “must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Such “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In determining whether
prejudice exists, “a court hearing an ineffectiveness claim must consider the totality of the
evidence before the judge or jury.” Id. at 695. Further, the court “should presume, absent
challenge to the judgment on grounds of evidentiary insufficiency, that the judge and jury acted
according to [the] law.” Id. at 694.
It is important to note that “there is no reason for a court deciding an ineffective
assistance claim to approach the [two-pronged] inquiry in [a pre-determined] order or even to
address both components of the inquiry if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697. It is unnecessary, therefore, to prove that counsel’s performance fell

6

below an objective standard of reasonableness before determining the presence or absence of
resulting prejudice.
“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’ of
review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (citing Cullen v. Pinholster, 563
U.S. 170) (2011)). “First, under Strickland, the state court must make a predictive judgment
about the effect of the alleged deficiencies of counsel on the outcome of the trial, focusing on
whether it is reasonably likely that the result would have been different absent the errors.”
Williams, 695 F.3d at 831 (citing Strickland, 466 U.S. at 696)). “To satisfy Strickland, the
likelihood of a different result must be substantial not just conceivable.” Id. Second, under
AEDPA, the Court must give substantial deference to the state court’s predictive judgment. Id.
Therefore, “[s]o long as the state court’s decision was not “contrary to” clearly established
federal law, the remaining question under the “unreasonable application” clause of § 2254(d) is
“whether the state court's determination under the Strickland standard is unreasonable, not
merely whether it is incorrect.” Id. at 831 (citing Harrington, 562 U.S. 86 at 101). This standard
is difficult, and “even a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Harrington, 562 U.S. at 102.
1.

Failure to Call Officer Alim Poindextor as a Witness

In his first ineffective assistance of counsel claim, Ewing states that his trial counsel erred
by failing to call Officer Alim Poindexter to refute the testimony of Michelle Johnson and S.K.
Officer Poindexter’s police report stated that Johnson and S.K. reported to him that the rape
occurred between 10:00 a.m. and 2:00 p.m. on December 22, 2006. At trial, witnesses Winfield
Odo and Sue Muehling, testified that time cards from his employer reflected that Ewing was at

7

work during that time period. (Resp’t Ex. A at 527-548 4.) On cross-examination, Johnson and
S.K. testified that they did not tell police that the rape occurred between 10:00 a.m. and 2:00
p.m. (Resp’t Ex. A at 321-22, 448-49.) Johnson stated that she did not hear S.K. tell the police
that the rape occurred between 10:00 a.m. and 2:00 p.m. (Resp’t Ex. A at 571.) Before closing
arguments, the state filed a motion in limine requesting that the defense not be allowed to argue
any contents of a police report that were not in evidence or the time frame of 10:00 a.m. to 2:00
p.m. that was in the police report during closing argument. (Resp’t Ex. A at 605-606.) Defense
counsel responded that the police report had not been entered into evidence and she could not
refer to something that was not in evidence. (Resp’t Ex. A at 606.) The trial court judge
sustained the motion in limine that counsel for the defense would be unable to argue the contents
of a police report or a time frame of 10:00 a.m. to 2:00 p.m. during closing argument. (Resp’t
Ex. A at 606, Ex. B at 55.)
After his conviction, Ewing filed a motion to vacate, set aside, or correct judgment or
sentence, which was later amended. (Resp’t Ex. H at 5-18, 67-82.) The post-conviction motion
court held an evidentiary hearing. (Resp’t Ex. G.) Ewing’s trial counsel testified that Officer
Poindexter was not a necessary witness, because she believed she did a “pretty good job” of
getting the jury curious about the timing issue by holding up the police report and crossexamining Johnson and S.K. about the time. (Resp’t Ex. G at 29-30.) The post-conviction
motion court denied Ewing’s motion. (Resp’t Ex. H at 88-92.) The Missouri Court of Appeals
found that Ewing’s counsel did not render ineffective assistance for failing to call Officer
Poindexter. (Resp’t Ex. K at 3-5.) In its opinion, the court of appeals held that Ewing failed to
meet his burden to show that Officer Poindexter would have been able to testify or what his
testimony would have been. (Resp’t Ex. K at 4.) Further, the court of appeals found that even if
4

For ease of reference, the Court will use the page numbers at the bottom of Exhibit A for citation purposes.

8

Officer Poindexter had testified, there was still reasonable evidence to conclude that trial counsel
made a reasonable strategic decision not to call Officer Poindexter as a witness. (Resp’t Ex. K at
4.)
Ewing contends that the testimony of Officer Poindexter was vital to his defense. He
asserts that had trial counsel called Officer Poindexter, there is no doubt whatsoever that the jury
would have completely disbelieved Johnson’s and S.K.’s version and there is a reasonable
probability that the outcome of the trial would have been different.
Trial counsel’s failure to call witnesses is presumed to be reasonable trial strategy.
“Decisions relating to witness selection are normally left to counsel’s judgment and this
judgment [should not] be second guessed on hindsight.” Williams v. Armontrout, 912 F.2d 924,
934 (8th Cir. 1990). An attorney’s decision not to interview or call a particular witness must be
viewed from the perspective of counsel at the time the decision was made. United States v.
Williams, 562 F.3d 938, 941 (8th Cir. 2009). “To establish prejudice from counsel’s failure to
investigate a potential witness, a petitioner must show that the witness would have testified and
that their testimony would have probably changed the outcome of the trial.” Siers v. Weber, 259
F.3d 969, 974 (8th Cir. 2001). “In conducting this analysis, [the Court considers]: (1) the
credibility of all witnesses, including the likely impeachment of the uncalled defense witnesses;
(2) the interplay of the uncalled witnesses with the actual defense witnesses called; and (3) the
strength of the evidence actually presented by the prosecution.” Id. There is no prejudice if,
factoring in the uncalled witnesses, the government’s case remains overwhelming. Armstrong v.
Kemna, 590 F.3d 592, 605 (8th Cir. 2010).
Based on a review of the record below, the Court finds that habeas relief should be
denied on this claim. As stated by the court of appeals, Ewing has provided no evidence that

9

Officer Poindexter would have testified or what his testimony would have been.

Further,

assuming that Officer Poindexter had testified that S.K. and Johnson had reported the 10:00 a.m.
to 2:00 p.m. time frame to him, this issue was explored on S.K. and Johnson’s crossexamination. S.K. said she did not remember telling him a time frame and Johnson stated that
neither she nor S.K. reported that time frame to Officer Poindexter. Therefore, the jury still
would have had to make a credibility determination regarding who they believed. Officer
Poindexter’s potential testimony viewed in light of the other testimony and evidence presented
would not have likely changed the outcome of the trial. Therefore, the Court will deny relief on
this claim. 5
2.

Failure to Impeach Witness

Next, Ewing contends that his trial counsel was ineffective for failure to impeach
Johnson’s credibility regarding Johnson’s alleged convictions for filing false burglary charges
against him. “A failure to impeach constitutes ineffective assistance when there is a reasonable
probability that, absent counsel’s failure, the jury would have had reasonable doubt of the
petitioner’s guilt.” U.S. v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (citing Whitfield v. Bowersox,
324 F.3d 1009, 1018 (8th Cir. 2003)).
During trial, Ewing’s trial counsel questioned Johnson regarding her federal conviction
for bank fraud. (Resp’t Ex. A at 331-32.) Ewing’s trial counsel also questioned Johnson
regarding fraudulently using her niece’s food stamps. (Resp’t Ex. A at 324-25.) At the postconviction evidentiary hearing, Ewing’s trial counsel testified that she believed she adequately
impeached Johnson. (Resp’t Ex. G at 22-23.) Ewing’s counsel also testified that she did not
5

In his Reply Brief (Traverse), Ewing attempts to add a claim for ineffective assistance of post-conviction counsel
against his initial post-conviction counsel for failure to produce Officer Poindexter at the post-conviction evidentiary
hearing. The Court will not address this claim as it was not raised below and is not cognizable in a federal habeas
petition. See 28 U.S.C. § 2254(i)(the ineffectiveness or incompetence of counsel during Federal or state collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254).

10

bring up the false burglary charges, because she felt boyfriends and girlfriends make false
accusations all the time and the federal conviction and illegal food stamps presented more of a
credibility issue for Johnson. (Resp’t Ex. G at 22-24, 31.) Ewing’s counsel also testified that
she wanted to avoid the jury knowing that Ewing had been incarcerated on a parole violation at
the time of some of the events at issue. (Resp’t Ex. G at 18-21, 24-25.) The post-conviction
motion court denied relief on this claim. (Resp’t Ex. H at 91.) The Missouri Court of Appeals
found that additional evidence of a false burglary accusation would not likely have changed the
outcome of the trial in light of the other evidence. (Resp’t Ex. K at 5-6.)
After a review of all of the evidence adduced at trial, the Court finds that trial counsel’s
decision not to impeach Johnson regarding the allegedly false burglary accusations was a
reasonable strategic choice. It is highly unlikely that the outcome of the trial would be different
if the jury knew that Johnson had allegedly lied about a false burglary after an argument with
Ewing, especially in light of the more substantial credibility issues of fraudulently using food
stamps and being convicted of bank fraud in federal court. Therefore, the Court will deny relief
on this claim.
B.

Trial Court Error

Next, the Court will address Ewing’s assertions of trial court error. “In the habeas
context, rules of evidence and trial procedure are usually matters of state law.” Bucklew v.
Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006). “It is not the province of a federal habeas court
to reexamine state court determinations on state law questions.” Estelle v. McGuire, 502 U.S.
62, 67 (1991). “In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68. “A federal
issue is raised only where trial errors infringe on a specific constitutional protection or are so

11

prejudicial as to amount to a denial of due process.” Bucklew, 436 F.3d at 1018. In making this
determination, the federal habeas court “must review the totality of the facts in the case and
analyze the fairness of the particular trial under consideration.” Hobbs v. Lockhart, 791 F.2d
125, 128 (8th Cir. 1986). “Rulings on the admission or exclusion of evidence in state trials
rarely rise to the level of a federal constitutional violation.” Nebinger v. Ault, 208 F.3d 695, 697
(8th Cir. 2000).
1.

Failure to Declare Mistrial

First, Ewing asserts that the trial court erred when it failed to declare a mistrial after the
prosecutor made a comment in her opening statement that Ewing was in jail before the rape
charges in the underlying case were filed. Before trial, Ewing filed a written motion in limine
that included a request that stated the following:
That the Assistant Prosecutor should be ordered not to refer
to any prior pleas of guilty, commission of any prior bad
acts, nor any pending criminal charges, nor any acts or
crimes not yet charged in this or any other Circuit Court
during voir dire, and/or opening and/or closing statements,
and/or direct and/or cross examination of witnesses.
(Resp’t Ex. B at 52.) The word “sustained” is written next to the text of that paragraph. (Resp’t
Ex. B at 52.) The record does not indicate that this motion was discussed on the record. During
the state’s opening statement, the prosecutor said the following: “Mid to late January [S.K.]
learns that Byron is incarcerated at the St. Louis County jail. And so as a result of that--.”
(Resp’t Ex. A at 245.) Then, Ewing’s attorney objected and asked for a mistrial, asserting that
the prosecutor’s statement was in direct opposition to the motion in limine that there be no
mention that Ewing was incarcerated. (Resp’t Ex. A at 245-46.) At sidebar, the trial judge
stated that there was a misunderstanding, but he denied the request for a mistrial. (Resp’t Ex. A
at 246.) A couple of minutes later, the prosecutor stated in reading S.K.’s letter, “I didn’t tell
12

you when he was out because he said if I tell anybody, he will kill you. When he got put in jail,
you said you don’t want him to be in there for life, but I do. And it been hurting me, so I am
finally telling you.” (Resp’t Ex. A at 247.) Defense counsel again objected. (Resp’t Ex. A at
247.) Defense counsel objected because the prosecutor was reading from the entire letter and it
had not been received into evidence. (Resp’t Ex. A at 247-48.) Defense counsel did not ask for
a mistrial. The trial court instructed the state’s attorney to move on and not to use any exhibits.
(Resp’t Ex. A at 248.) On direct appeal, the Missouri Court of Appeals found that the trial court
did not abuse its discretion in denying the motion for a mistrial, because the prosecutor’s
statement did not refer to a specific crime that Ewing committed therefore there was a vague
reference and indefinite reference to an unspecified crime. (Resp’t Ex. F at 8.) The court of
appeals found that the evidence was relevant and admissible for the purpose of explaining why
S.K. waited for more than a month to report the rape and was not made to show Ewing had a
propensity to commit crimes. (Resp’t Ex. F at 8.)
“As a general rule, prosecutorial misconduct does not warrant federal habeas relief unless
the misconduct infected the trial with enough unfairness to render petitioner’s conviction a denial
of due process.” Louisell v. Dir. of Iowa Dept. of Corr., 178 F.3d 1019, 1023 (8th Cir. 1999).
“To amount to a due process violation, improper remarks by a prosecutor must be so egregious
that they fatally infect the proceedings and render a defendant’s trial fundamentally unfair.”
Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th Cir. 2002). “In evaluating whether a trial error
resulted in prejudice of the defendant, [the court] consider[s] the cumulative effect of such
misconduct, the strength of the properly admitted evidence of the defendant’s guilt, and the
curative actions taken by the trial court.” Louisell, 178 F.3d at 1024. “A petitioner must show
that there is a reasonable probability that the error complained of affected the outcome of the trial

13

–i.e., that absent the alleged impropriety the verdict probably would have been different.”
Stringer, 280 F.3d at 829. “Every improper or erroneous statement by a prosecutor does not
necessarily present a constitutional violation.” Leisure v. Bowersox, 990 F.Supp. 769, 815 (E.D.
Mo. 1998).
The Court finds that the prosecutor’s statements from S.K.’s letter did not fatally infect
the trial and render Ewing’s trial fundamentally unfair. S.K.’s testified that she wrote the letter
and it was admitted into evidence during her testimony.

(Resp’t Ex. A at 422-23.)

The

prosecutor read directly from the letter. (Resp’t Ex. A at 247.) Therefore, even if it was
improper to mention the letter’s contents in the opening statement, the fact that the prosecutor
mentioned it in opening statement did not prejudice Ewing.

The same information was

subsequently introduced during the victim’s testimony during the trial. Therefore, the Court will
deny relief on this claim.
2.

Reference to Right Not to Testify

Second, Ewing states that the prosecutor made an indirect reference to his failure to
testify during closing argument, by stating, “You have not heard anything that’s contradicted
what [S.K.] said.” (Resp’t Ex. A at 638.) In open court, defense counsel immediately objected,
“Your Honor, again, I am going to object that inference that somehow my client should have
testified. That is absolutely incorrect.” (Resp’t Ex. A at 638.) The trial court overruled the
objection. (Resp’t Ex. A at 638.) The Missouri Court of Appeals found there was no direct
reference to Ewing’s failure to testify. (Resp’t Ex. F at 9.) The court of appeals also found that
comments on a defendant’s failure to offer evidence is not improper.
The United States Supreme Court has held that a prosecutor’s direct reference to a
accused’s failure to testify violates the Fifth Amendment to the Constitution.

14

Griffin v.

California, 380 U.S. 609, 612-15 (1965). “[The] Supreme Court has never clearly established,
[however], that a prosecutor may not comment on the evidence in a way that indirectly refers to
the defendant’s silence. Edwards v. Roper, 688 F.3d 449, 460 (8th Cir. 2012); cert. denied, 134
S.Ct. 58 (2013). In this case, the prosecutor’s comment did not directly reference Ewing’s
failure to testify. The comment would not be naturally taken by the jury as a comment on
Ewing’s failure to testify. The prosecutor’s comment could be seen as a reference to the “clarity
and strength of the state’s evidence, and not as a constitutionally prohibited reference to Ewing’s
silence.” Herndon v. Norman, No. 4:09-CV-1889 TCM, 2013 WL 1282250 at *15 (E.D. Mo.
Mar. 26, 2013). Based on the transcript, it appears that defense counsel inferred the statement
referenced Ewing’s right not to testify and she presented the inference before the jury in open
court. Ewing has also not shown that there is a reasonable probability that the comment affected
the outcome of the trial and that absent the prosecutor’s statement that the verdict probably
would have been different. Therefore, the Court will deny relief on this claim.
3.

Objections During Closing Argument

Finally, Ewing contends that the trial court violated his constitutional rights by overruling
his objection to misstatements of fact in the state’s closing argument regarding committing acts
of violence against Johnson. Ewing contends that the trial court erred by failing to sustain the
objection and provide a corrective instruction. During closing argument, the prosecutor stated,
“She has been exposed to arguments where she has witnessed violence and anger from the
defendant towards her mother.” (Resp’t Ex. A at 614.) Defense counsel objected and the
objection was overruled. (Resp’t Ex. A at 614.) In Ewing’s closing argument, defense counsel
stated that
There was never any violence as Ms. Kilgore said because
she was asked specifically was there ever any physical
15

contact between you, and she said no. She said he broke a
window out and reached in so he could come in … but there
was no violence that she was scared of Byron. She never
saw any violence between Byron and her mom.
(Resp’t Ex. A at 631.) The Missouri Court of Appeals denied habeas relief on this claim stating
that the prosecutor’s comments were not factually inaccurate, because breaking a window and
using physical force to re-enter a home is a violent act. (Resp’t Ex. F at 12.) The court of
appeals held that the prosecutor has a right to argue the evidence and the prosecutor’s statement
was a reasonable inference from that evidence. (Resp’t Ex. F at 12.) Further, the court of
appeals found that defense counsel rebutted and corrected any misrepresentation of physical
violence towards Johnson in her closing argument. (Resp’t Ex. F at 12.)
The Court will deny relief on this claim, because there is no evidence of a federal
constitutional violation. First, there was no misstatement of the evidence. As the court of
appeals found, physically violent actions do not have to be upon a person. Breaking a window
and forcible entry into a home are violent acts. Second, defense counsel reminded the jury that
Johnson testified that Ewing did not physically assault her. Ewing failed to show that there was
a reasonable probability that the prosecutor’s comment affected the outcome of the trial and that
absent the prosecutor’s comment that the verdict probably would have been different. Therefore,
the Court will deny relief on this claim.
IV.

Conclusion
Based on the foregoing, the Court finds that Ewing’s request for relief pursuant to 28

U.S.C. § 2254 should be denied. The Court finds that the state court’s findings and conclusions
regarding Ewing’s claims were not contrary to, nor do they involve an unreasonable application
of clearly established federal law as determined by the Supreme Court of the United States, nor
did they result in a decision that was based on an unreasonable determination of the facts in light
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of the evidence presented in the state court proceedings. Further, because Ewing has made no
showing of denial of a constitutional right, the Court will not issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that the Clerk of Court shall substitute Troy Steele in place
of Terry Russell as Respondent.
IT IS FURTHER ORDERED the Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is DENIED. [Docs. 1, 7.]
IT I IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by
Byron Ewing for a Certificate of Appealability will be DENIED.
Dated this 28th day of September, 2016.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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