Smalley v. Pash

Filing 17

MEMORANDUM AND ORDER, IT IS HEREBY ORDERED that the petition of James Smalley for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [# 1 ] is denied. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not grant a Certificate of Appealability. A separate judgment in accord with this order is entered this same date. Signed by District Judge Catherine D. Perry on 5/15/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES H. SMALLEY,

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Petitioner,
vs.
RHONDA J. PASH,
Respondent.

MEMORANDUM AND ORDER
James Smalley was convicted by a Missouri jury of trafficking drugs in the
second degree. He was sentenced as a prior and persistent offender to fifteen years
imprisonment. Smalley challenges his conviction by bringing a petition for a writ
of habeas corpus under 28 U.S.C. § 2254.
Smalley’s four grounds for relief all fail. His fourth amendment claim is not
cognizable in a federal habeas proceeding. Two of his claims — improper chain of
custody and improper comments by prosecutor during closing argument — are
procedurally barred. Finally, his claim that his due process rights were violated
when the trial court sustained the prosecutor’s objections during the defense
closing argument is without merit. Therefore, I will deny his petition for the writ
of habeas corpus.

I.

Background
On February 26, 2007, police officers patrolling in the City of St. Louis

observed a man exit a vehicle alongside the curb. As the officers drove toward the
car, the man took off running down the street, attracting the officers’ attention.
The officers then decided to speak with the occupants of the car, turned on their
emergency lights and parked their patrol car alongside the car.
James Smalley sat in the driver’s seat. The officers approached the vehicle
on foot and commanded Smalley and a passenger to exit the vehicle. Smalley
exited and informed the officers that he had outstanding warrants. The officers
placed Smalley under arrest and performed a pat down search, finding nothing.
The officers transported Smalley to the police station, where a custodial search was
performed. During this search, officers found cocaine in the lining of Smalley’s
pants. The officers placed Smalley under arrest.
Smalley was charged with trafficking cocaine in the second degree. At trial,
the prosecution’s case consisted of testimony from the two arresting officers as
well as testimony from the two chemists who tested the cocaine found in the lining
of Smalley’s pants. Smalley did not testify and no other defense witnesses were
called. The jury found Smalley guilty of trafficking drugs in the second degree,
and the court sentenced him to fifteen years in prison as a prior and persistent
offender.
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Smalley’s conviction was affirmed on direct appeal. Missouri v. Smalley,
No. ED91540, slip op. at 2 (Mo. Ct. App. Sept. 8, 2009) (per curiam) (included in
Resp. Exh. F). Smalley then filed a pro se motion in the trial court for postconviction relief under Missouri Supreme Court Rule 29.15. The motion court
appointed counsel, who filed an amended motion. The court held an evidentiary
hearing and denied Smalley’s claims that his counsel was ineffective forfeiting to
investigate and call two witnesses and failing to strike for cause a venireperson
who served on the jury. Smalley v. Missouri, No. ED97900, slip op. at 2 (Mo. Ct.
App. Feb. 26, 2013) (per curiam) (included in Resp. Exh. L). The denial of postconviction relief was affirmed. Id.
II. Grounds Raised
Smalley now seeks federal habeas corpus relief, asserting the following four
grounds:
(1) His right to be free from illegal search and seizure was violated because
he was detained without reasonable suspicion, so the physical evidence
should have been suppressed.
(2) His right to due process was violated when the trial court admitted
evidence and testimony relating to the cocaine seized from his pants
without proper chain of custody.
(3) His right to due process was violated by the trial court’s sustaining the
prosecution’s objections to defense counsel’s closing argument, unduly
prejudicing the jury.

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(4) His right to protection against self-incrimination was violated by the trial
court’s overruling defense counsel’s objection to prosecution’s closing
argument because it improperly highlighted Smalley’s lack of testimony.
II.

Discussion
A. The Fourth Amendment Claim in Ground One is Not Cognizable
As his first ground for relief, Smalley contends that his Fourth Amendment

rights were violated because there was no probable cause to arrest or search him.
He argues that the trial court erred by overruling his motion to suppress the cocaine
base found on his person. Under Stone v. Powell, 428 U.S. 465, 482 (1976), this
claim is not cognizable in federal habeas:
Where the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, the Constitution does not require that a
state prisoner to be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.
Id.
Smalley not only was provided an opportunity for full and fair litigation of
his illegal search and seizure claim in the Missouri courts, he took that opportunity
and litigated the issue fully. His counsel filed a motion to suppress in the trial
court, which the trial court denied during the trial. He again raised the argument
on appeal and the Missouri Court of Appeals affirmed the decision of the trial
court. Missouri v. Smalley, No. ED91540, slip op. at 5 (Mo. Ct. App. Sept. 8,
2009) (per curiam) (included in Resp. Exh. F).
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This court may only “review a Fourth Amendment claim if either ‘the state
provided no procedure by which the prisoner could raise his Fourth Amendment
claim, or the prisoner was foreclosed from using that procedure because of an
unconscionable breakdown in the system.” Palmer v. Clarke, 408 F.3d 423, 437
(8th Cir. 2005) (quoting Willett v. Lockhart, 37 F.3d 1265, 1273 (8th Cir. 1994) (en
banc)). Smalley’s pursuit of the claim in state court demonstrates that both an
adequate procedure to pursue the Fourth Amendment claim existed and that he was
not foreclosed from pursuing such a procedure. Therefore this court may not
consider the claim.
B. Grounds Two and Four Are Procedurally Barred
To preserve issues for federal habeas review, a state prisoner must fairly
present his or her claims to state courts during direct appeal or in post-conviction
proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). A state prisoner
who fails “‘to follow applicable state procedural rules [for] raising the claims’ . . .
is procedurally barred from raising them in a federal habeas action, regardless of
whether he has exhausted his state-court remedies.” Sweet, 125 F.3d at 1151
(citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A state prisoner can
overcome a procedural default only if he can “demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or

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demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
While Smalley raised both grounds two and ground four in his direct appeal,
the Missouri Court of Appeals determined that he had not properly preserved either
of these claims. Missouri v. Smalley, No. ED91540, slip op. at 7, 10 (Mo. Ct. App.
Sept. 8, 2009) (per curiam) (included in Resp. Exh. F). He defaulted on ground
two by failing to timely and specifically object to the evidence during trial. He
defaulted on ground four by failing to include the claim in his motion for a new
trial.
Even though it found these claims had not been properly preserved, the
Missouri Court of Appeals considered them on the merits by invoking Missouri
Supreme Court Rule 30.20, which gives appellate courts the discretionary power to
review unpreserved claims for plain error. But the appellate court’s review of the
ground for plain error does not cure the procedural defect. Clark v. Bertsch, 780
F.3d 873, 874 (8th Cir. 2015) (holding that a federal habeas court cannot reach an
“otherwise unpreserved and procedurally defaulted claim merely because a
reviewing state court analyzed that claim for plain error.”)
Here, Smalley makes no attempt to demonstrate cause and prejudices to
avoid the procedural bar. See Murray v. Carrier, 477 U.S. 478, 488 (1986) (to
demonstrate cause, petitioner must show that “some objective factor external to the
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defense impeded [petitioner’s] efforts to comply with the [s]tate’s procedural
rule”). To establish prejudice, Smalley would be required to demonstrate that the
errors “worked to his actual and substantial disadvantage, infecting the entire trial
with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152,
170 (1982). Further, in order excuse default for a fundamental miscarriage of
justice, a habeas petitioner must “present new evidence that affirmatively
demonstrates that he is innocent of the crime for which he was convicted.” Abdi v.
Hatch, 450 F.3d 324, 338 (8th Cir. 2006).
Smalley presents no new evidence that would affirmatively demonstrate his
innocence. Nor has Smalley presented this Court with anything more than the
same assertions that were argued before the Missouri Court of Appeals, none of
which establish the cause and prejudice necessary for federal habeas review under
Coleman. 501 U.S. at 750; see also Pollard v. Armontrout, 16 F.3d 295, 298
(affirming the district court’s denial of a habeas petition because petitioner failed
to allege error sufficient “to overcome the procedural bar.”) Therefore, grounds
two and four of Smalley’s habeas petition will be denied as procedurally defaulted.
C. Ground Three Fails on the Merits
In ground three, Smalley argues that his right to due process was violated
when the trial court sustained the prosecution’s objections to portions of defense
counsel’s closing argument. Smalley argues that the court’s sustaining the
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objections to an argument about innocence implied to the jury that the judge
believed Smalley was not innocent. The Missouri Court of Appeals considered
and rejected this argument.
Under section (d) of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, when a claim has been adjudicated on the
merits in state court, an application for a writ of habeas corpus shall not be granted
unless the state court 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
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in state court.
28 U.S.C. § 2254(d).
In Shafer v. Bowersox, the Eighth Circuit articulated the standards for
subsection (1) as follows:
The “contrary to” clause is satisfied if a state court has arrived “at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law” or “confronts facts that are materially
indistinguishable from relevant Supreme Court precedent” but arrives
at the opposite result. A state court “unreasonably applies” clearly
established federal law when it “identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” A case
cannot be overturned merely because it incorrectly applies federal
law, for the application must also be “unreasonable.”
329 F.3d 637, 646-47 (8th Cir. 203) (quoting Williams v. Taylor, 529 U.S. 362,
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405, 411, 413 (2000)).
Under subsection (2), “a state court decision involves ‘an unreasonable
determination of the facts in light of the evidence presented in state court
proceedings,’ only if it is shown by a clear and convincing evidence that the state
court’s presumptively correct factual findings do not enjoy support in the record.”
Lomholt v. Iowa, 327 F.3d 748, 752) (quoting 28 U.S.C. § 2254(d)(2) and (citing
28 U.S.C. § 2254(e)(1)).
The Missouri Court of Appeals summarized the evidence relevant to this
claim as follows:
[A]fter defense counsel discussed the alleged discrepancies of the
number of bags the cocaine was found in, counsel stated, “That’s a
major inconsistency that you cannot explain away for any reason. If
you do, an innocent man will go to jail.” The State objected, and the
trial court sustained the objection. Defense counsel then stated,
“Okay. If you do there is a possibility -.” The prosecutor again
objected, and the trial court overruled the objection. Defense counsel
then said, “If you do there is a possibility that an innocent man will go
to jail.” Later in closing argument, defense counsel stated, “Now this
is a case of actual innocence.” The State again objected, and the trial
court sustained the objection and stated, “You cannot comment and
invade the province of the jury.”
Missouri v. Smalley, No. ED91540, slip op. at 10 (Mo. Ct. App. Sept. 8,
2009) (per curiam) (included in Resp. Exh. F). Id. at 8-9.
The Missouri Court of Appeals found no abuse of discretion in the trial
court’s sustaining the objections:

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Smalley has failed to demonstrate he was prejudiced from the
trial court’s rulings. The jury was aware from defense counsel’s
questions and arguments that Smalley’s position was that he did not
commit the crime charged, that the police manufactured the evidence,
and that he was not guilty of the crime charged. Furthermore, the trial
court’s rulings did not suggest any bias towards Smalley’s theory of
defense. After the trial court sustained the first objection, Smalley
was permitted to state, “there is a possibility that an innocent man will
go to jail.” And after sustaining the second objection, the trial
court…told defense counsel that he could not “comment and invade
the province of the jury,” which indicated that it was up to the jury to
decide whether they believed Smalley’s theory of defense. Because
the objections did not prevent Smalley from arguing his theory of
innocence and because the trial court did not express any judicial
opinion about Smalley’s theory, Smalley has failed to show that the
trial court’s rulings had a decisive effect on the jury’s verdict.
Id. at 9-10.
This conclusion is not contrary to clearly established Federal Law. Habeas
relief is warranted only where improper statements in closing arguments “so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also
Fitzgerald v. Armontrout, 963 F.2d 1062, 1064 (8th Cir. 1992) (finding habeas
relief available “only when the alleged error infringes upon a specific
constitutional protection or is so prejudicial that it amounts to a denial of due
process”). Because a federal court reviewing a habeas petition has a “less reliable
vantage point for gauging the impact of closing argument on the overall fairness of
trial . . . an exceptionally limited review of the issue” is appropriate. James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 1999). As the Supreme Court has stated,
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“The appropriate standard of review for such a claim on writ of habeas corpus is
‘the narrow one of due process, and not the broad exercise of supervisory power.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly, 416 U.S. at
642).
Smalley argues that the court’s sustaining the objections demonstrated
judicial bias, giving the jury the impression that the trial court did not agree with
Smalley’s position. However, the judge simply warned defense counsel not to
“comment and invade the province of the jury.” Resp. Exh. A, at 325. This
reasoning for sustaining an objection is fully supported by Supreme Court
precedent. See Perry v. New Hampshire, 132 S. Ct. 716 (2011) (reliability and
credibility of evidence are firmly within the province of the jury). Thus, relying on
the exceptionally limited review of closing arguments as dictated in James, the
state trial court did not err in sustaining the prosecution’s objections. 187 F.3d at
869.
Even if sustaining the prosecution’s objections had been an error, these
errors do not rise to the level of denial of due process. Smalley had the opportunity
to present his case despite the sustained objections; the jury heard his theory of
innocence. See California v. Trombetta, 467 U.S. 479, 485 (1984) (defense
counsel is permitted to “a meaningful opportunity to present a complete defense”).
A few potentially inflammatory comments during an entire trial, which included
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both police officer and scientific testimony, do not rise to the level of a violation of
due process. Further, Smalley makes no argument as to whether these sustained
objections had an actual, prejudicial effect on the jury.
“A defendant is entitled to a fair trial but not a perfect one.” Brown v.
United States, 411 U.S. 223, 232 (1973). Because Smalley was able to present his
case to the jury, these sustained objections do not present as so prejudicial that they
amount to a denial of due process and an unreasonable application of federal law.
Therefore, I find that Smalley’s claim of violation of due process in sustaining
prosecution’s objections to defense’s closing argument in Ground Three of his
petition to be without merit.
IV. Certificate of Appealability
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
judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant
such a certificate, the justice or judge must find a substantial showing of the denial
of a federal constitutional right. Id. at § 2253(c)(2); see Tiedeman 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.

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1997). I find that reasonable jurists could not differ on any of Smalley’s claims, so
I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petition of James Smalley for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [#1] is denied.
IT IS FURTHER ORDERED that the petitioner has not made a substantial
showing of a denial of a constitutional right and this Court will not grant a
Certificate of Appealability.
A separate judgment in accord with this order is entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 15th day of May, 2015.

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