Smith v. Russell

Filing 14

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Petitioners petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. Signed by Magistrate Judge Shirley Padmore Mensah on 3/8/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COREY K. SMITH
Petitioner,
vs.
TERRY RUSSELL,

Respondent.

)
)
)
)
)
)
)
)
)
)

No. 4:13-CV-2111-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Corey K. Smith’s (“Petitioner’s”) pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to
the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(c)(1) (Doc. 8). For the following reasons, the petition will be denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND

The Missouri Court of Appeals summarized the facts as follows:
Viewed in the light most favorable to the verdicts, the following evidence
was adduced at trial. On the night of the incident, the victim and his girlfriend went
to dinner. When the victim and his girlfriend returned home at about 10:30 p.m.,
Defendant was sitting on the stoop next door to the victim’s home. The victim and
Defendant had argued with each other several days earlier and earlier that day. The
victim walked over to Defendant and said, “Dude, didn’t I tell you don’t sit on this
stoop?” Defendant stood up and told the victim the stoop did not belong to the
victim. They argued briefly and got “in each other’s face.” The victim then said,
“Do what you do” or “Go ahead and . . . whatever you going to do, do it.”
Defendant then made a stabbing motion toward the victim, and the victim
backed up. The victim had his hands in the air, trying to defend himself as the two
men moved down the street. Defendant made one or two stabbing motions toward
the victim, and then the fight broke up. One witness saw something in Defendant’s
hand. The victim was not holding anything in his hands. The victim did not have a
weapon when he fought Defendant, and no weapon was found at the scene.

After the fight, Defendant walked away, and went to his home in Jennings,
Missouri. The victim walked to a friend’s house holding his chest where he
collapsed. The victim later died from a knife wound to his chest.
The victim’s girlfriend and other witnesses identified Defendant as the man
who stabbed the victim. Defendant was later arrested at his home in Jennings.
At the trial, Defendant claimed that he acted in self-defense. Defendant
testified that prior to the day of the incident, he had argued with the victim. He
testified that, at that time, the victim had told him “to wait right here.” Defendant
said the victim told him “to be right here when he get back.” Defendant stated he
took these words as threats. Defendant further testified that, immediately prior to
the stabbing, he again argued with the victim, and that the victim put his hands in
his pockets. Defendant testified he thought the victim could be pulling a gun, knife,
or “anything” out of his pocket. He stated that at that moment he was distracted by
someone else, when the victim started punching him in the face. Defendant testified
that he grabbed his knife, and his “hand went up for defending [himself] and that’s
when [he] cut [the victim].” Defendant stated he was afraid for his life, and he was
only trying to get the victim off him. He stated he did not think the victim was
seriously injured because the victim was still walking. He testified he “really
wanted to stay,” but he left the scene because he feared he would be shot in
retaliation.
Defendant also presented the testimony of Sharon Bernard (“Bernard”). She
testified three days before the incident, the victim told her that he “ran” the
neighborhood, and that “he was going to let [Defendant] know that he runs the
neighborhood” and “show him.” Bernard testified she informed Defendant of what
the victim said. Bernard stated she told Defendant to avoid the victim.
The jury subsequently found Defendant guilty of murder in the second
degree and armed criminal action. The trial court sentenced Defendant as a prior
offender to twenty years’ imprisonment for each count to be served concurrently.
Resp’t Ex. F, at 2-4.
Petitioner filed a direct appeal, in which he raised two arguments: (1) that the trial court
erred by allowing the State to comment on and adduce testimony regarding Petitioner’s postMiranda silence, to impeach his self-defense claim; and (2) that the state improperly misstated
Missouri’s self-defense law in closing argument. Resp’t Ex. D, at 15-17. The Missouri Court of
Appeals found Petitioner’s arguments meritless and affirmed the Petitioner’s convictions. Resp’t
Ex. F.
In his amended motion for post-conviction relief, Petitioner asserted three claims of
ineffective assistance of counsel. Resp’t Ex. H, at 25-52. First, Petitioner argued that his defense
2

counsel was ineffective in the way that he handled and objected to the State’s attempts to elicit
evidence of Petitioner’s post-Miranda silence to impeach his self-defense claim. Resp’t Ex. H, at
29-40. Second, Petitioner argued that defense counsel was ineffective by failing to call a witness,
Marqueesha Perry, to testify as to why Petitioner was in possession of the weapon used to kill the
victim. Id. at 40-44. Third, Petitioner argued that defense counsel was ineffective because he
promised the jury in the opening statement that the jury would hear certain testimony from Sharon
Bernard, yet failed to elicit such testimony. Id. at 44-47. After holding an evidentiary hearing, the
motion court denied Petitioner relief on each of his claims. Resp’t Ex. H, at 53-68. Petitioner raised
all three of these claims in his appeal of the denial of his motion for post-conviction relief. Resp’t
Ex. I, at 16-18. In May 2013, the Missouri Court of Appeals affirmed the motion court’s ruling.
Resp’t Ex. K.
In the instant petition, Petitioner raises the same three ineffective assistance of counsel
claims he pursued in his motion for post-conviction relief, as well as a claim of ineffective
assistance of post-conviction relief counsel.
II.

LEGAL STANDARDS
A. Legal Standards for Reviewing Claims on the Merits

Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by AEDPA [the
Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of
underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28
U.S.C. § 2254). Under AEDPA, a federal court may not grant habeas relief to a state prisoner with

3

respect to any claim that was adjudicated on the merits in the state court proceedings unless the
state court’s adjudication of a claim “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A state court decision is “contrary to” clearly established Supreme Court precedents “if the state
court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or
“if the state court confronts a set of facts that are materially indistinguishable from a decision of
[the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court’s]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S.
133, 141 (2005). A state court decision involves 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.” Williams, 529 U.S. at 407-08; see also Bell v. Cone,
535 U.S. 685, 694 (2002). “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.” Jones
v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are
presumed correct unless the habeas petitioner rebuts them through clear and convincing evidence)
(citing 28 U.S.C. § 2254(e)(1)).
In the instant case, each of Petitioner’s claims is based on an assertion that his counsel was
ineffective. 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

4

counsel, Petitioner must show both that “[his] counsel’s performance was deficient” and that “the
deficient performance prejudiced [his] defense.” Id.at 687; see also Paulson v. Newton Corr.
Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance, Petitioner must show
“that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id. “Judicial scrutiny of counsel’s performance must be
highly deferential,” and 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 (citation and internal quotation marks omitted). To
demonstrate prejudice, 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. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id at
694. “An error by counsel even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.
When 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.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, 131 S. Ct 1388, 1410 (2011)). In the context of a habeas claim, 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, 535 U.S. at 698-99. “Rather, he must show that the [state court] applied
Strickland to the facts of his case in an objectively unreasonable manner.” Id. at 699.
B. Procedural Default
To preserve a claim for federal habeas review, a state prisoner must present that claim to
the state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers,

5

446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised
before the state court are procedurally defaulted.” Id. The federal habeas court will consider a
procedurally defaulted claim “only where the petitioner can establish either cause for the default
and actual prejudice, or that the default will result in a fundamental miscarriage of justice.” Id.
(citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate cause, a petitioner must
show that “some objective factor external to the defense impeded [the petitioner’s] efforts to
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To
establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th
Cir. 1999). Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner
must “present new evidence that affirmatively demonstrates that he is innocent of the crime for
which he was convicted.” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v.
Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
III.

DISCUSSION

In the petition, Petitioner raises four claims of ineffective assistance of counsel: (1)
ineffective assistance of trial counsel based on counsel’s handling of the State’s use of Petitioner’s
post-Miranda silence to impeach his self-defense claim; (2) ineffective assistance of trial counsel
based on the failure to call certain witnesses to testify about why Petitioner was in possession of
the knife used to fatally wound the victim; (3) ineffective assistance of trial counsel based on trial
counsel’s promise during opening statement that that the jury would hear certain testimony from
witness Sharon Bernard; and (4) ineffective assistance of post-conviction relief counsel based on

6

the failure to move for rehearing upon the appellate court’s denial of post-conviction relief. The
Court will address each claim in turn.
A. Ground One: Ineffective Assistance of Counsel—Failure to Object
Properly to Evidence of Petitioner’s Post-Miranda Silence
In Ground One, Petitioner argues that his trial counsel was ineffective in the way he
handled the State’s attempt to impeach Petitioner’s self-defense claim with evidence of his postMiranda silence, in violation of Doyle v. Ohio, 426 U.S. 610 (1976). Petitioner raised this claim
in his motion for post-conviction relief and in his appeal of the denial of his motion for postconviction relief, and the Missouri Court of Appeals rejected it on the merits.
The facts relevant to this claim are as follows. On cross-examination, the State asked
Petitioner, “[W]hen the police came and actually arrested you at your house out in Jennings, you
didn’t tell the police then, ‘Hey. I had to defend myself”, did you?” Resp’t Ex. A, at 314.
Petitioner’s trial counsel objected, arguing that the question was a mischaracterization with no
foundation. Id. at 315-16. The trial court sustained the objection but permitted the State to ask
whether Petitioner told the police about self-defense when he was arrested. Id. at 316-17. The
following exchange then occurred:
State:

Mr. Smith, when you were arrested out in Jennings,
Missouri, you didn’t tell the police that you were defending
yourself, did you?

Petitioner:

No.

State:

At any point in time, you never told the police, “Hey, I was
just defending myself. I thought he was going to kill me.”

Petitioner:

No, ma’am.

Id. at 317. Petitioner’s trial counsel did not object to these questions. During the opening phase of
closing argument, the State argued, “If this was self-defense, he would have told police that when
he was arrested. He would have shown them the knife. He would have told anybody this, but 14
7

months later, he’s got a story to tell you. It’s self-defense.” Id. at 339. The State also argued, “If
it weren’t a story, we would have heard about it 14 months ago. Absolutely, you would have. He
would have told the police, ‘This is what happened. Here is the knife.’” Id. at 341. Petitioner’s
counsel did not object. During the rebuttal phase of closing argument, the State argued, “He ran to
Jennings with the weapon and then waited. Waited for it to go away, but then when they came up,
he didn’t tell the police it was self-defense. He didn’t tell anybody it was self-defense.” Id. at 361.
At that point, Petitioner’s trial counsel objected on the ground that this was improper comment
that took away from Petitioner his right to remain silent. Id. at 361-62. The objection was
overruled, and the State went on to argue, “He didn’t tell the police it was self-defense, and why
not? Because that’s not what happened that day, ladies and gentlemen.” Id. Petitioner’s counsel
later raised the issue of the use of Petitioner’s post-Miranda silence in a motion for a new trial, but
the motion was not timely filed. See Resp’t Ex. B, at 47-50; Resp’t Ex. G, at 12.
In his direct appeal, Petitioner asserted that the State had violated Doyle by improperly
using his post-Miranda silence to impeach him. Resp’t Ex. D, at 18-45. Reviewing for plain error
because trial counsel had not preserved the issue for review, the Missouri Court of Appeals found
no manifest injustice that would require reversal. Resp’t Ex. F, at 4-10. The Missouri Court of
Appeals correctly recognized that in Doyle, the Supreme Court held that once a person has been
arrested and given his Miranda warnings, it would violate due process to permit his silence to be
used to impeach an explanation subsequently offered at trial. Id. at 4. The court then found that the
State’s first relevant question during cross-examination (“Mr. Smith, when you were arrested out
in Jennings, Missouri, you didn’t tell the police that you were defending yourself, did you?”) was
not a Doyle violation, because that question referred to the moment when Petitioner was arrested
in Jennings, and there was no evidence that Petitioner had been advised of his Miranda rights at

8

that time. Id. at 6. The court further found that the State’s comments during closing argument did
not violate Doyle because they also referred to the time of Petitioner’s arrest, a time at which there
was no evidence that Miranda warnings had been given. Id. at 7. The court found that the only
possible question that had violated Doyle was the second question, in which the State asked
Petitioner if he had told the police that he had acted in self-defense “[a]t any point in time.” Id. at
7-8. The court went on to find no manifest injustice, reasoning that there had not been repeated
Doyle violations; that Defendant’s claim of self-defense was “transparently frivolous” because
there was no evidence the victim was armed with a weapon or made threats to use a weapon, and
thus there was no reasonable basis for Petitioner’s use of deadly force; and that there was
overwhelming evidence of Petitioner’s guilt, including the multiple witnesses who identified
Petitioner as the person who stabbed the victim, Petitioner’s admission that he stabbed the victim,
the absence of evidence that the victim had a weapon or used deadly force during the fight, and
the consciousness of guilt demonstrated by Petitioner’s leaving the scene without providing aid or
calling 911. Id. at 8-9.
In his motion for post-conviction relief, Petitioner brought a separate claim of ineffective
assistance of counsel related to his counsel’s handling of the alleged Doyle violations. Petitioner
alleged that his trial counsel was ineffective in several ways: by failing to properly object when
the State asked questions about Petitioner’s post-Miranda silence; by failing to make it clear to the
court that the State’s comments about his silence referred to a period after Petitioner had been read
his Miranda rights; by failing to make a record about when Petitioner was read his Miranda rights;
and by failing to file a timely motion for a new trial, thereby leaving this issue unpreserved for
appellate review. Resp’t Ex. H, at 29-40.

9

The motion court held a hearing on this claim. Resp’t Ex. G. At the hearing, the officer
who arrested Petitioner testified that he arrested Petitioner at his home, took him to the St. Louis
Police Headquarters, and only then read him his Miranda rights. Id. at 6-7. Petitioner’s trial counsel
also testified at the hearing. He admitted that “in hindsight, [he] probably gave the State a little too
much, a little too much leeway in [the line of questioning regarding Petitioner’s silence]” and that
“obviously, in hindsight, the first time around [he] made the wrong objection.” Id. at 12-13. He
also acknowledged that he had not filed the motion for new trial on time. Id. at 12.
The motion court denied relief on this claim, finding that Petitioner could not show that his
trial counsel’s alleged errors prejudiced him under Strickland. Resp’t Ex. H, at 59-64. It relied on
the same reasoning used by the Missouri Court of Appeals in finding no manifest injustice from
the alleged Doyle violation, though it acknowledged that the standards were different. Id. The
Missouri Court of Appeals affirmed, relying on similar reasoning. It concluded:
Given that the State committed only one possible Doyle violation, that the
movant’s claim of self-defense was very weak, and that the evidence of his guilt
was overwhelming, the movant has failed to establish a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been different. We
find no Strickland prejudice, and deny [Petitioner]’s first point.
Resp’t Ex. K, at 5.
The Missouri Court of Appeals’ adjudication of this claim was not objectively
unreasonable and was not contrary to, or an unreasonable application of, clearly established federal
law. As to the first question (“Mr. Smith, when you were arrested out in Jennings, Missouri, you
didn’t tell the police that you were defending yourself, did you?”), the Missouri courts’ finding
that there was no Doyle violation to which counsel should have objected was reasonable in light
of the facts and the relevant law. At the motion hearing, the arresting officer plainly testified that
Petitioner was not given his Miranda rights at the time of his arrest at his home, but rather at the

10

police station. An arrestee’s pre-Miranda silence does not constitute a Doyle violation, and such
silence may be used to impeach an explanation offered at trial. See Fletcher v. Weir, 455 U.S. 603,
606 (1982); Jenkins v. Anderson, 447 U.S. 231, 240 (1980). Petitioner offers no other basis on
which to find that the question was impermissible. Petitioner’s counsel did not exhibit deficient
performance for failing to object to this permissible question. Similarly, the state courts reasonably
determined that the State’s comments during closing argument referred to a pre-Miranda time
period and thus did not constitute Doyle violations. As to the second question, which may have
constituted a Doyle violation, the Missouri Court of Appeals’ conclusion that the admission of this
question and answer did not result in prejudice to Petitioner under Strickland was reasonable.
Significantly, even if Petitioner’s counsel had successfully objected to the question about
Petitioner’s post-Miranda silence, the jury would still have heard about the fact that at the time of
Petitioner’s arrest, he did not tell the arresting officer that he had been acting in self-defense. In
addition, as the state court noted, the self-defense case was weak, in light of the absence of any
evidence that the victim had a weapon or ever used deadly force during the fight and the evidence
that Petitioner left the scene without calling the police. In light of those facts, it was not
unreasonable for the Missouri Court of Appeals to find that no prejudice resulted from the single
possible Doyle violation that occurred.
For all of the above reasons, Ground One will be denied.
B. Ground Two: Ineffective Assistance of Trial Counsel—Failure to Call
Witnesses to Testify About Why Petitioner Was in Possession of a Knife
In Ground Two, Petitioner argues that his trial counsel was ineffective in failing to call as
witnesses two individuals, Marqueesha Perry and “Tony,” to testify about why he was in
possession of a knife at the time of the crime. The Court will address each witness separately.

11

1. Failure to Call Tony as a Witness
Petitioner did not raise an ineffective assistance of counsel claim based on the failure to
call Tony as a witness in his amended motion for post-conviction relief under Missouri Supreme
Court Rule 29.15, nor did he include it in his appeal from the denial of that motion. See Resp’t Ex.
H, at 29-47; Resp’t Ex. I, at 16-18. An ineffective assistance of counsel claim is procedurally
defaulted if a petitioner fails to raise it in a Rule 29.15 motion or fails to raise it in the appeal from
the denial of such a motion. See Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006). Thus, to
the extent that this claim is based on the failure to call Tony, it is procedurally defaulted. Petitioner
does not argue that there is cause to excuse the default, nor does he argue that the miscarriage of
justice exception to procedural default should apply. Therefore, the Court is barred from
considering the claim as it relates to the failure to call Tony as a witness, and it will be denied.
2. Failure to Call Ms. Perry as a Witness
Petitioner raised an ineffective assistance of counsel claim based on his trial counsel’s
failure to call Ms. Perry as a witness in his amended motion for post-conviction relief and in the
appeal of the denial of that motion. Resp’t Ex. H, 40-44; Resp’t Ex. I, at 17. The Missouri Court
of Appeals considered the claim and rejected it on the merits. Resp’t Ex. K, at 6-7.
Petitioner argues that his trial counsel should have called Ms. Perry to show a valid
reason—other than a plan to harm the victim—why Petitioner was in possession of a knife at the
time of the crime. Ms. Perry was the owner of the restaurant where Petitioner worked at the time
of the crime. At the post-conviction evidentiary hearing, Ms. Perry testified that Petitioner was
working on the day of the incident, that he used a knife as part of his work, and that all of the
individuals at the restaurant had knives and kept them clipped to their belts. Resp’t Ex. G, at 26.
She also testified that Petitioner “probably should have left it off because all of us leave them.” Id.

12

She testified that she was available and willing to testify at the time of trial and would have testified
to those facts if called as a witness at trial. Id. at 27.
In affirming the denial of this claim, the Missouri Court of Appeals stated:
Ms. Perry’s testimony would not have unqualifiedly supported the movant.
The movant was charged and tried for the offense of first-degree murder, and the
State argued that the movant had a plan to wait for the victim, provoke him, and
kill him in an altercation. The jury, however, rejected the State’s theory of
premeditation, and convicted the movant of the lesser-included offense of seconddegree murder. Had Ms. Perry testified as she did at the evidentiary hearing—that
the movant probably should have left his knife at work as she and the other workers
did—her testimony could have actually supported the State’s theory of
premeditation.
Furthermore, the movant testified at trial that the knife was a pocket knife
that he used to cut boxes open at the restaurant. No evidence contradicted this
testimony. Thus, any evidence from Ms. Perry that the movant routinely used a
knife in his work at the restaurant would have been merely cumulative. Trial
counsel was not ineffective for not offering cumulative testimony.
Resp’t Ex. K, at 7.
The Missouri Court of Appeals’ decision did not involve an unreasonable application of
Strickland to the facts of this case. With regard to the first prong, the court reasonably found that
Ms. Perry’s testimony was cumulative, because Petitioner had already testified that the knife used
in the crime was one he used to cut boxes open at the restaurant where he worked, and because no
evidence was presented that contradicted that testimony. See Resp’t Ex. A, at 307-08. At the
hearing on the motion for post-conviction relief, Petitioner’s trial counsel testified that he did not
“think to use [Ms. Perry] as a witness to validate . . . his use of a knife at the restaurant” and that
he “felt [Petitioner’s] testimony would suffice for proving that point.” Resp’t Ex. G, at 10. Trial
counsel is not ineffective for failing to adduce cumulative evidence. See Winfield v. Roper, 460
F.3d 1026, 1033 (8th Cir. 2006). See also Hall v. Luebbers, 296 F.3d 685, 693 (8th Cir. 2002)
(“We conclude that failure to present cumulative evidence is neither contrary to nor an
unreasonable application of the governing principles found in Strickland.”). Moreover, the State
13

court reasonably determined that Ms. Perry’s testimony that Petitioner “probably should have” left
the knife at the restaurant rather than taking it with him could well have been harmful to
Petitioner’s case, because it might have supported the State’s theory that Petitioner kept the knife
with him as part of a deliberate plan to kill the victim. Petitioner’s counsel was not ineffective for
failing to call a witness whose testimony would have been cumulative and perhaps even
detrimental.
With regard to the second Strickland prong, Petitioner cannot demonstrate that counsel’s
failure to call this witness resulted in prejudice to him. The State’s theory was that Petitioner was
guilty of murder in the first degree, because Petitioner deliberated the murder with cool reflection
and had a plan to wait for the victim, provoke him, and kill him. See Resp’t Ex. A, at 333-34, 33637. Petitioner argues that Ms. Perry’s testimony would have undermined that theory. However, it
is apparent that the jury rejected that theory even without Ms. Perry’s testimony, because it did not
find Petitioner guilty of murder in the first degree, but only of murder in the second degree. Id. at
364. Thus, Petitioner offers no basis on which to find that there is a reasonable likelihood that the
outcome of the trial would have been different had Ms. Perry been called as a witness.
For all of the above reasons, the state court’s adjudication of this claim was not objectively
unreasonable, and Ground Two will be denied.
C. Ground Three: Ineffective Assistance of Counsel—Promise of Testimony
in Opening Statement
In Ground Three, Petitioner asserts that his trial counsel was ineffective because he
promised the jury in the opening statement that the jury would hear testimony from Ms. Sharon
Bernard about a prior incident between Petitioner and the victim, yet later decided not to have Ms.
Bernard testify about that incident. Petitioner argues that left Petitioner with no credible evidence
to support his self-defense theory. Petitioner raised this claim in his motion for post-conviction
14

relief and in his appeal of the denial of his motion for post-conviction relief, and the Missouri
Court of Appeals rejected it on the merits.
In his opening statement, Petitioner’s trial counsel stated:
And you’ll also hear about another argument between [Petitioner] and [the
victim] where it got to the point where [the victim] began pushing [Petitioner], and
it was only because of a woman named Sharon Bernard who was there who got in
between them and was able to stop anything from happening more on that day.
Resp’t Ex. A, at 148. Petitioner’s trial counsel did not indicate who would be providing testimony
about this incident. At trial, Petitioner’s counsel elicited testimony from Ms. Bernard about a
conversation she had with the victim in which the victim threatened to show Petitioner who ran
the neighborhood, and she testified that she told Petitioner what the victim had said. Id. at 290-91.
Petitioner’s counsel did not ask Ms. Bernard any questions regarding the prior argument between
Petitioner and the victim in which the victim had been pushing Petitioner. On cross-examination,
in response to a related question, Ms. Bernard stated, “When it first happened, that little incident
with them arguing and fighting, and breaking up . . .”; the State objected; and the court told Ms.
Bernard to respond only to the question asked, but did not strike the testimony. Id. at 295. In
addition, when Petitioner’s counsel asked Petitioner about this argument, Petitioner stated, “We
had a [sic] argument on the corner, and that’s when Sharon got in the middle of the argument.” Id.
at 298. The State objected “based upon our prior conversations,” and the objection was sustained;
however, the testimony was not stricken. Id. In addition, other witnesses testified that Petitioner
and the victim had had arguments or had “had some words” prior to the crime at issue. Id. at 156,
182, 211-12. During closing argument, the State did not mention the absence of testimony from
Ms. Bernard. Id. at 333-42, 356-62.
At the evidentiary hearing on Petitioner’s motion for post-conviction relief, Petitioner’s
trial counsel testified that at the time of his opening statement, he had intended to have Ms. Bernard
15

testify about the prior incident between Petitioner and the victim and that he did not anticipate an
issue with that testimony. Resp’t Ex. G, at 14. He testified that during a later off-the-record
discussion, the trial judge informed him that if Ms. Bernard were to testify to that prior incident, it
would open up the door to allow the State to bring in past arrests and other character evidence
regarding Petitioner. Id. Petitioner’s trial counsel then decided that the harm of having Petitioner’s
criminal history come to light would outweigh the good that Ms. Bernard’s testimony might be
able to do, and he made a strategic decision not to introduce her testimony about the prior incident.
Id. at 15-16.
The Missouri Court of Appeals affirmed the motion court’s denial of this claim. Resp’t Ex.
K, at 7-8. It stated:
From the evidence, the jury could easily infer that [Petitioner] and the victim
engaged in an altercation before the night of the stabbing. The State did not mention
counsel’s “unfulfilled promise” in closing. The evidence of the movant’s guilt was
overwhelming as we outlined in [the ineffective assistance of counsel claim
described in Ground One]. Thus, on this record, we find no reasonable probability
that the result of the trial would have been different had Ms. Bernard testified that
on an earlier occasion the victim “began pushing” [Petitioner].
Resp’t Ex. K, at 8.
The Missouri Court of Appeals’ decision did not involve an unreasonable application of
Strickland to the facts of this case. Even with the limits placed on Ms. Bernard’s testimony, the
jury still heard that there had been prior arguments between Petitioner and the victim. The state
court reasonably found that Petitioner could not show prejudice from the minimal difference
between what Petitioner’s counsel promised in the opening statement and what the evidence
actually showed, particularly given that the State did not comment on that difference during closing
argument.

16

Moreover, although the Missouri Court of Appeals did not address the deficient
performance prong of Strickland, the Court finds that Petitioner also cannot establish that prong.
The evidence shows that at the time of the opening statement, Petitioner’s counsel planned to call
Ms. Bernard to testify about the prior incident and did not believe that would present an issue.
Petitioner offers nothing to suggest that his trial counsel’s original belief was unreasonable, nor
does Petitioner offer any reason to believe that his trial counsel’s subsequent decision to change
strategy after he received additional information from the trial judge was an unreasonable one.
Thus, particularly in light of the strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance and might be considered sound trial strategy, the Court
finds that Petitioner cannot satisfy the deficient performance prong of Strickland.
Petitioner also appears to argue that his trial counsel made a “deal” with the State, without
Petitioner’s knowledge, that trial counsel would not use Ms. Bernard as a witness in exchange for
the State not cross-examining Petitioner. However, the record does not support the existence of
any such deal with the State. Instead, the evidence developed at the evidentiary hearing shows that
Petitioner’s counsel changed his strategy after the trial judge informed him that Ms. Bernard’s
testimony might open the door to unfavorable evidence.
Petitioner also appears to be arguing that Petitioner’s trial counsel was ineffective for
calling Ms. Bernard as a witness at all. He notes that evidence of Ms. Bernard’s criminal history
was introduced at trial and was referenced by the State during closing argument to argue that she
was not credible. He suggests that if trial counsel believed that preventing the admission of
criminal history evidence was important, trial counsel should not have presented the testimony of
Ms. Bernard, who had a criminal record. Petitioner did not assert this claim in his amended motion
for post-conviction relief or in his appeal from the denial of that motion, so it is procedurally

17

defaulted. Petitioner does not argue that there is cause to excuse the default, nor does he argue that
the miscarriage of justice exception to procedural default should apply. Therefore, the Court is
barred from considering the claim as it relates to the ineffectiveness of counsel in calling Ms.
Bernard as a witness. Moreover, even assuming that the Court were to consider this claim, it would
be without merit, because Petitioner cannot satisfy either prong of Strickland. The decision to call
Ms. Bernard despite her criminal record does not suggest deficient performance, because it would
be reasonable for defense counsel to decide that opening the door to negative character about the
defendant would be significantly more harmful to the case than would opening the door to negative
character evidence about a particular witness. In addition, Petitioner cannot show any reasonable
likelihood that the outcome of the trial would have been different had Ms. Bernard not been called
to testify. Even if the jury found that her criminal record made her less credible as a witness and
disregarded her testimony, Petitioner was placed in the same position he would have been had she
not testified at all.
For all of the above reasons, the state court’s adjudication of this claim did not involve an
unreasonable application of Strickland to the facts of this case. Ground Three is denied.
D. Ground Four: Ineffective Assistance of Post-Conviction Counsel—Failure
to Move for Rehearing
Finally, Petitioner argues that post-conviction review counsel was ineffective by failing to
file a motion for rehearing or an application for transfer upon the appellate court’s decision to deny
relief. However, ineffective assistance of post-conviction review counsel is not a ground for relief
in a federal habeas proceeding. 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.”). See also Coleman, 501 U.S. at 752 (“There is
no constitutional right to an attorney in state post-conviction proceedings. Consequently, a
18

petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.”)
(citation omitted). Thus, Ground Four will be denied.
IV.

CONCLUSION

For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28
U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28
U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the
Petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);
Tiedman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing that
issues are debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citation
omitted). The Court finds that reasonable jurists could not differ on Petitioner’s claims, so the
Court will not issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 8th day of March, 2017.

19