Jordan v. Bowersox

Filing 19

MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that Josh Hawley, Attorney General of the State of Missouri, is ADDED as a Respondent. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus is DENIED. [Doc. 1] IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment shall accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 3/30/2017. (MRC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LASHAWIN JORDAN,
Petitioner,
v.
MICHAEL BOWERSOX and
JOSH HAWLEY,1
Respondents.

)
)
)
)
)
)
)
)
)
)

No. 4:13-CV-2488 CAS

MEMORANDUM AND ORDER
Petitioner Lashawin2 Jordan seeks federal habeas relief from a state court judgment
following a jury verdict. See 28 U.S.C. § 2254. For the reasons set forth below, the Court
denies the petition as without merit.
I. Background
The State of Missouri charged Petitioner with first-degree murder in violation of Mo.
Rev. Stat. § 565.020 (Count I) and armed criminal action in violation of Mo. Rev. Stat. §
571.015 (Count II) for knowingly causing the death, after deliberation, of Louis Davis, Jr.
(“Victim”) by shooting him on November 1, 2006.3
Trial Court Proceeding

1

In this habeas proceeding, Petitioner challenges a conviction resulting in two consecutive sentences.
Because Petitioner will serve a sentence in the future, the Court adds the Attorney General of the State of Missouri
as a Respondent in this proceeding. See Rule 2(b) of the Rules Governing Section 2254 Cases in the United States
District Courts.
2

While Petitioner spells his first name “Lashawin” in his federal habeas petition, “Lashawn” is the
spelling of Petitioner’s first name throughout the available state court record.
3

Indictment, filed Feb. 1, 2007, Legal File, Resp’ts Ex. C, at 11-12.

At trial, the parties stipulated that: Victim had “[b]ullet wounds to the back, lower back,
[and] buttocks. The one that entered the upper chest exited the front chest and was the cause of
death.”4 The State presented numerous exhibits and seven witnesses:5 Latroy Taylor and Harry
Collins, two officers with the City of St. Louis Police Department who responded to the scene;
Michael Davis, Victim’s nephew, and Keith John Like, two individuals who were at the scene
during the shooting and testified to seeing Petitioner with a gun shooting Victim as Victim fled
from Petitioner; Dion Pettis, another individual at the scene, who saw Petitioner placing a gun in
his jacket as he ran from the scene after the shooting; Cheryl Davis, one of Petitioner’s friends,
who testified to several of Petitioner’s nicknames; and Heather Sabin, another officer of the City
of St. Louis Police Department, who read during trial several letters Petitioner had written and
mailed from jail to a friend in early 2008.6 The trial court denied Petitioner’s motion for
judgment of acquittal at the close of the State’s evidence.7
Petitioner testified in his defense.8 In summary, he testified that, since he was thirteen
years old, he had sold drugs for Victim; he was sixteen years old at the time of the shooting; just
before the shooting, Victim accused Petitioner of losing drugs and hit Petitioner with a gun that
Petitioner obtained during the subsequent struggle with Victim; and Petitioner shot Victim
because he feared for his safety.

4

Trial Tr., Resp’ts Ex. A, at 160-61.

5

Trial Tr., Resp’ts Ex. A.

6

Trial Tr., Resp’ts Ex. A, at 150-160.

7

Trial Tr., Resp’ts Ex. A at 164; Pet’r mot. J. acquittal at close of State’s evidence, Legal File, Resp’ts Ex.
C, at 25-26.
8

Trial Tr., Resp’ts Ex. A, at 169-202.

2

In rebuttal, the State presented the parties’ stipulation that if David Menendez, a qualified
firearms expert, testified, he:
would testify that he examined the clothing . . . that [Victim] was wearing; that
there were three bullet holes in the clothing, the upper back, lower back and the
buttocks area; that there was no gunshot residue, no soot, no stippling, no burnt
gunpowder . . . [a]nd, as a result, therefore, [the firearms expert] would say . . .
that the muzzle of the gun was at a minimum of 3 feet from . . . [V]ictim when the
gun was fired.9
(Footnote added.) Petitioner then unsuccessfully moved for a judgment of acquittal at the close
of all the evidence.10
Before the instruction conference, both attorneys expressed their opinion, in response to
an inquiry by the trial court, that self-defense was not at issue.11 The trial court found:
[Petitioner] kind of started out with it. I want to make a record that I
believe that this is a difficult record to make, but it is what it is. I believe that
when [Petitioner] testified under cross-examination that he fired shots after
[Victim] had fled from him [and had] his back to [Petitioner], that negates all
Missouri case law definitions of self-defense. And no juror upon having heard
that could conclude that self-defense has occurred in this case. . . .
*

*

*

. . . I want to make that record on the self-defense because he kind of started out
suggesting it with the struggle for the gun. . . . [The jury may] drop to a murder
second, but I don’t see how they could possibly find self-defense given the
testimony.12
(Footnote added.) Petitioner’s counsel responded that she did not plan on submitting or arguing
self-defense. Id. at 205.

9

Trial Tr., Resp’ts Ex. A, at 221.

10

Trial Tr., Resp’ts Ex. A, at 222; Pet’r mot. J. acquittal at close of all evidence, Legal File, Resp’ts Ex. C,

11

Trial Tr., Resp’ts Ex. A, at 204.

12

Trial Tr., Resps.’ Ex. A, at 204-05.

at 27-28.

3

Noting that a self-defense instruction had to be given whether requested or not, the trial
court explained during the instruction conference why it had decided “there was no evidence to
support a self-defense instruction:” 13
We had a general discussion on this earlier, but I did make my own
decision, and this was based upon [Petitioner] in his testimony admitting and
testifying to facts and circumstances which negate all of the case law and
instructions concerning self-defense as [Petitioner] had informed the jury that
[Victim] had turned and fled. And all the case law is consistent if somebody flees
and leaves and all imminent danger to a Defendant has come to an end, selfdefense cannot be had. Therefore, it was my position then and now that there was
no evidence to support a self-defense instruction.14
(Footnote added.) Among other instructions, the trial court gave verdict-directing instructions
for first-degree murder, second-degree murder, and voluntary manslaughter.15 The jury found
Petitioner guilty of second-degree murder and armed criminal action.16
During the sentencing phase, the State presented the testimony of Louise Tillman,
Victim’s mother.17 In addition to describing the impact of Victim’s death on the family, Ms.
Tillman testified, without objection, that she heard Victim tell Petitioner, “Man, you need to stop
bragging about that dude that you killed.”18 During argument, the prosecutor asked the jury to
consider “life imprisonment for both counts,”19 and Petitioner’s counsel urged the jury, “due to
the circumstances and . . . [Petitioner’s] situation and his age, . . . [to] consider 20 years on both

13

Trial Tr., Resp’ts Ex. A, at 259-60.

14

Trial Tr., Resp’ts Ex. A, at 260.

15

Trial Tr., Resp’ts Ex. A, at 206-13; Instruction Nos. 5, 6, and 7, Legal File, Resp’ts C, at 34-37.

16

Trial Tr., Resp’ts Ex. A, at 257; Verdicts, Legal File, Resp’ts Ex. C, at 48, 49.

17

Trial Tr., Resp’ts Ex. A, at 265-69.

18

Trial Tr., Resp’ts Ex. A, at 268.

19

Trial Tr., Resp’ts Ex. A, at 270.

4

counts.”20 After sending a note asking the trial court: “If sentenced 20 on each count will they
run concurrent or consecutive?” and learning from the trial court that “[t]he Court will make that
determination,” the jury assessed terms of imprisonment of thirty years for second-degree
murder and twenty years for armed criminal action.21
At sentencing, the trial court denied Petitioner’s motion for judgment of acquittal, or in
the alternative, for a new trial.22 Before imposing sentence, the trial court heard statements by
Victim’s mother, Petitioner’s response to Ms. Tillman’s statements, and counsel’s arguments.23
The trial court sentenced Petitioner to consecutive terms of imprisonment of thirty years for
second-degree murder and twenty years for armed criminal action.24
Direct Appeal
In his only point in his timely direct appeal, Petitioner asserted the trial court plainly
erred and violated Petitioner’s rights to due process, a properly instructed jury, and a fair trial as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments, by giving a voluntary manslaughter
instruction (Instruction No. 7) because it did not conform to MAI-CR3d 313.04 and 313.08.25 In
affirming the trial court’s judgment, the Missouri Court of Appeals stated “[t]he sufficiency of
the evidence is not in dispute. On November 1, 2006, [Petitioner] shot . . . [V]ictim three times

20

Trial Tr., Resp’ts Ex. A, at 271.

21

Trial Tr., Resp’ts Ex. A, at 272-73; Verdicts, Legal File, Resp’ts Ex. C, at 55, 56.

22

Pet’r Mot J. acquittal or new trial, Legal File, Resp’ts Ex. C, at 57-58; Sentencing Tr., Resp’ts Ex. B, at

23

Sentencing Tr., Resp’ts Ex. B, at 6-11.

24

See J., dated Nov. 21, 2008, Legal File, Resp’ts Ex. C, at 59-61; Sentencing Tr., Resp’ts Ex. B, at 13-14.

25

Pet’r Br., Resp’ts Ex. D, at 9.

3.

5

in the back, killing him.”26 After noting that Petitioner had requested and not objected to the
voluntary manslaughter instruction, and had not challenged that instruction in Petitioner’s posttrial motion for judgment of acquittal or for a new trial, the Court of Appeals concluded there
were “no extraordinary circumstances . . . to justify reviewing [Petitioner’s challenge to the
voluntary manslaughter instruction] as a matter of plain error.”27 The Court of Appeals issued its
mandate on November 13, 2009.28
Post-Conviction Motion Proceeding
Petitioner presented two claims in his timely pro se motion for post-conviction relief
(“PCR motion”).29

In his first claim, Plaintiff argued the trial court violated his federal

constitutional rights to due process, a fair trial, and equal protection by removing from the jury
the decision whether to impose consecutive or concurrent sentences.30 For his second claim,
Petitioner argued his trial attorney provided ineffective assistance of counsel by failing to object
to the trial court’s “remov[al of] the duty of the jury to impose sentence.”31
Through appointed counsel, Petitioner filed an amended PCR motion, which included a
request for an evidentiary hearing.32 In his amended PCR motion, Petitioner set forth two

26

State v. Jordan, No. ED92232, Per Curiam Order and Mem. Supplementing Per Curiam Order Affirming
J. Pursuant to Rule 30.25(b), Resp’ts Ex. F, at 2 (Mo. Ct. App. filed Oct. 20, 2009).
27

Jordan, No. ED92232, Mem., Resp’ts Ex. F, at 4-5.

28

See Nov. 13, 2009 entry on docket sheet for State v. Jordan, No. ED92232 (Mo. Ct. App. filed Dec. 1,
2008) (available at https://www.courts.mo.gov/casenet/cases/searchDockets.do; last visited Mar. 29, 2017).
29

Pet’r pro se PCR mot., filed Dec. 22, 2009, PCR Legal File, Resp’ts Ex. G, at 3-12.

30

Pet’r pro se PCR mot., Resp’ts Ex. G, at 4, 5-6.

31

Pet’r pro se PCR mot., Resp’ts Ex. G, at 4, 6-7.

32

Pet’r am. PCR mot., filed Dec. 10, 2010, PCR Legal File, Resp’ts Ex. G, at 14-36.

6

ineffective assistance of counsel claims.33

Specifically, Petitioner argued his trial attorney

provided ineffective assistance of counsel by failing to request a self-defense instruction and by
failing to object to the testimony of an uncharged offense presented during the penalty phase of
trial.34
Without conducting an evidentiary hearing, the motion court denied Petitioner’s PCR
motion.35 The motion court concluded Petitioner’s ineffective assistance of counsel claims
regarding his trial attorney’s failure to submit a self-defense instruction and failure to object to
certain testimony presented during the penalty phase lacked merit.36 With regard to Petitioner’s
first claim, the motion court concluded:
[b]y the time [Petitioner] shot [V]ictim, he had disarmed [V]ictim and he shot the
unarmed [V]ictim in the back. [Furthermore,] it was an objectively reasonable
decision to argue for a verdict of manslaughter rather than trying to convince a
jury that his shooting an unarmed victim in the back was in self-defense.37
(Footnote added.)

In rejecting Petitioner’s second claim, the motion court concluded the

challenged testimony of Victim’s mother did not have “a decisive effect on the sentences
[Petitioner] received.”38
Post-Conviction Appeal
Petitioner presented two points in his timely post-conviction appeal based on assertions
the motion court violated his Fifth, Sixth, and Fourteenth Amendment rights by failing to find his

33

Pet’r am. PCR mot., Resp’ts Ex. G, at 16-32.

34

Pet’r am. PCR mot., Resp’ts Ex. G, at 16-32.

35

Mot. Ct.’s Conclusions of Law and Order, filed Aug. 31, 2012, PCR Legal File, Resp’ts Ex. G, at 37-45.

36

Mot. Ct.’s Conclusions of Law and Order, Resp’ts Ex. G, at 37-45.

37

Mot. Ct.’s Conclusions of Law and Order, Resp’ts Ex. G, at 43.

38

Mot. Ct.’s Conclusions of Law and Order, Resp’ts Ex. G, at 44.

7

trial attorney provided ineffective assistance of counsel.39

First, Petitioner argued his trial

attorney provided ineffective assistance in failing to object to the penalty phase testimony of
Victim’s mother that she heard Victim suggest Petitioner had earlier talked about having
committed an uncharged murder.40 In his second point, Petitioner contended his trial attorney
was ineffective in failing to submit a self-defense instruction.41
The Missouri Court of Appeals affirmed the motion court’s judgment in an unpublished
per curiam order and memorandum.42 The Court of Appeals concluded with respect to both
points that Petitioner was not prejudiced by his trial attorney’s alleged failures, and, as to the
second point, Petitioner had not shown that the self-defense instruction would have been given if
counsel had requested it.43 The Court of Appeals issued its mandate on September 11, 2013.44
II. Petitioner’s Grounds for Federal Habeas Relief
In his federal habeas petition, Petitioner seeks relief on the following two grounds:
1. His trial attorney provided ineffective assistance of counsel in violation
of the Sixth Amendment by failing to request a self-defense instruction;45
and
2. The trial court erred in allowing Victim’s mother to testify during
the penalty phase to uncorroborated and inflammatory statements of
uncharged crimes.46
39

Pet’r Br., Resp’ts Ex. H, at 12 and 14.

40

Pet’r Br., Resp’ts Ex. H, at 12.

41

Pet’r Br., Resp’ts Ex. H, at 14.

42

Jordan v. State, No. ED99087, Order and Mem. Supplementing Per Curiam Order Affirming J. Pursuant
to Rule 84.16(b) (Mo. Ct. App. filed Aug. 20, 2013), Resp’ts Ex. J.
43

Jordan, No. ED99087, Mem., Resp’ts Ex. J, at 7 and 11.

44

See Sept. 11, 2013, entry on docket sheet for Jordan v. State, No. ED99087 (Mo. Ct. App. filed Oct. 9,
2012) (available at https://www.courts.mo.gov/casenet/cases/searchDockets.do; last visited Mar. 29, 2017).
45

Pet’r Pet’n at 6 [ECF No.1 at 5].

46

Pet’r Pet’n at 6 and 7 [ECF No. 1 at 5 and 6].

8

Respondents counter that Petitioner is limited to pursuing in this habeas proceeding only those
claims that he presented to the state courts and Petitioner did not present his second ground for
relief based on trial court error to the state courts.47 To the extent Petitioner’s second ground
should be considered a claim of ineffective assistance of counsel for Petitioner’s trial attorney’s
failure to object to the challenged testimony of Victim’s mother during the penalty phase,
Respondents urge that claim, as well as Petitioner’s first ground for relief, do not entitle him to
relief. Respondents argue those claims lack merit because the state courts’ rejection of those
claims does not constitute an incorrect or unreasonable application of clearly established federal
law and was based on a reasonable determination of the facts.48
In his traverse, Petitioner characterizes each of his grounds for relief as ineffective
assistance of counsel claims.49 Petitioner urges each of his grounds for relief has merit.
III. Discussion of Grounds for Habeas Relief
A. Legal Standard (Merits)
The Court is bound by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
see 28 U.S.C. § 2254(d), “to exercise only limited and deferential review of underlying state
court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). A federal court may not
grant relief to a state prisoner unless a 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) “was based on an

47

Resp’ts Response [ECF No. 11 at 3, 7-8].

48

Id. at 3-18.

49

Pet’r Traverse [ECF No. 14].

9

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 United States Supreme Court
precedent if “the state court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or . . . decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000) (“Taylor”).
If a state court’s decision is not “contrary to” clearly established law, then the
“unreasonableness” standard applies, which is “meant to be difficult to meet, and ‘even a strong
case for relief does not mean the state court’s contrary conclusion was unreasonable.’” Williams
v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 102
(2011)). A state court decision is an unreasonable application of clearly established federal law
if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case.” Taylor, 529 U.S. at 407-08; see also id. at 413.
The “clearly established Federal law” requirement of habeas review requires the habeas
court to consider only United States Supreme Court precedents decided as of the time the state
court issues its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38-40 (2011) (relying on
Cullen v. Pinholster, 563 U.S. 170 (2011)). State courts are not required to cite to Supreme
Court cases, “‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.’” Revels v. Sanders, 519 F.3d 734, 739 (8th Cir. 2008) (quoting Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam)). Importantly, in reviewing state court decisions to
ascertain whether they either contradict or unreasonably apply clearly established federal law, a
federal habeas court “is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen, 563 U.S. at 181-82.

10

“Finally, a state court decision involves ‘an unreasonable determination of the facts in
light of the evidence presented in 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. 28 U.S.C. 2254(e)(1).” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004). Under
the AEDPA, “a determination of a factual issue made by a State court shall be presumed to be
correct” unless rebutted by the petitioner by clear and convincing evidence.

28 U.S.C. §

2254(e)(1). The presumption of correctness of a state court’s findings of fact applies to the
factual determinations made by a state court at either the trial or appellate levels, Smulls v.
Roper, 535 F.3d 853, 864-65 (8th Cir. 2008) (en banc), and to a state court’s implicit findings of
fact, Grass v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014). Likewise, federal habeas courts defer to
state court credibility determinations, Smulls, 535 F.3d at 864, and factual findings made in the
course of resolving ineffective assistance of counsel claims, Odem v. Hopkins, 382 F.3d 846,
849 (8th Cir. 2004).
B. Grounds for Relief
1. Ineffective assistance of trial attorneyFailure to request self-defense instruction
In his first ground, Petitioner alleges his trial attorney provided ineffective assistance of
counsel by failing to request a self-defense jury instruction. Petitioner argues that, at the time of
the incident, he feared for his safety because he was sixteen years old, “had been dealing drugs
for the [Victim], an adult,” and Victim accused Petitioner of “being responsible for lost drugs,”
threatened Petitioner, and hit Petitioner with a gun that they wrestled over.

Additionally,

Petitioner notes, he fled the scene and “called the ambulance.”50 Petitioner urges his trial
attorney’s failure to request a self-defense instruction prejudiced him because he “is entitled to
50

Trial Tr., Resp’ts Ex. A, at 201.

11

have the jury consider any defense that is supported by law and that has some foundation in
evidence.”51 In support of his argument, Petitioner cites Strickland v. Washington, 466 U.S. 668
(1984) and United States v. Carter, 910 F.2d 1524 (7th Cir. 1990).
Respondents counter that the motion court and Missouri Court of Appeals correctly stated
the standard for an ineffective assistance of counsel claim, correctly and reasonably applied
clearly established federal law, and reasonably determined the facts based on the available
record. Additionally, Respondents point out the trial court and appellate court in Petitioner’s
post-conviction appeal found Petitioner was not entitled to a self-defense instruction under the
circumstances, even if Petitioner’s attorney had requested it. Because those courts’ conclusion
about Petitioner’s entitlement to a self-defense instruction is a matter of state law, Respondents
argue, the Court must defer to that conclusion, citing Schleeper v. Groose, 36 F.3d 735, 737 (8th
Cir. 1994). Moreover, Respondents contend, due to the overwhelming evidence, even without
Petitioner’s testimony, that Petitioner shot Victim in the back as Victim was fleeing, the Missouri
Court of Appeals reasonably concluded there was no reasonable probability the jury would have
returned a different verdict even if the trial court had given a self-defense instruction.
(a) Legal standard
The Sixth Amendment’s guarantee of counsel is one of the rights applicable to the States
through the Fourteenth Amendment because it is deemed fundamental and essential to a fair trial.
See Gideon v. Wainwright, 372 U.S. 336, 342 (1963). “[T]he right to counsel is the right to the
effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970); accord
Kimmelman v. Morrison, 477 U.S. 365, 377 (1986). When reviewing “an ineffective-assistanceof-counsel claim, ‘a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.’” Woods v. Donald, 135 S. Ct. 1372, 1375
51

Pet’r Traverse at 2 [ECF No. 14 at 2].

12

(2015) (per curiam) (quoting Strickland, 466 U.S. at 689).

To succeed on an ineffective

assistance of counsel claim, a federal habeas petitioner must show that:

(1) “counsel’s

representation fell below an objective standard of reasonableness” (“performance prong”) and
(2) “the deficient performance prejudiced the defense” (“prejudice prong”). Strickland, 466 U.S.
at 688, 687.
To satisfy the performance prong, a petitioner must demonstrate that “counsel’s
performance was so deficient as to fall below an objective standard of the customary skill and
diligence displayed by a reasonably competent attorney.” Armstrong v. Kemna, 534 F.3d 857,
863 (8th Cir. 2008) (citing Strickland, 466 U.S. at 687-94). In assessing a challenge to an
attorney’s performance, a federal habeas court must not second-guess counsel’s assistance, avoid
the “distorting effects of hindsight,” and attempt to evaluate counsel’s challenged conduct from
counsel’s perspective at the time the challenged conduct occurred. Bell v. Cone, 535 U.S. 685,
698 (2002) (quoting Strickland, 466 U.S. at 689). “Although hindsight may make a decision
appear unwise or unsound, when scrutinizing counsel’s performance a court ‘must be highly
deferential.’” Underdahl v. Carlson, 381 F.3d 740, 743 (8th Cir. 2004) (quoting Strickland, 466
U.S. at 689).
There is “a strong presumption that counsel’s challenged actions or omissions were,
under the circumstances, sound trial strategy.” Garrett v. Dormire, 237 F.3d 946, 949-50 (8th
Cir. 2001) (citing Strickland, 466 U.S. at 689). Strategic decisions left to counsel include all trial
decisions other than the decision whether or not to plead guilty, waive a jury trial, testify on
one’s own behalf, and take an appeal. United States v. Washington, 198 F.3d 721, 723-24 (8th
Cir. 1999). Importantly, “[t]here is a strong presumption that counsel’s strategic choices were
reasonable.” Forsyth v. Ault, 537 F.3d 887, 891 (8th Cir. 2008).

13

The prejudice prong of an ineffective assistance of counsel claim “requires a showing
that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” White v. Dingle, 757 F.3d 750, 753 (8th Cir. 2014)
(quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Carroll v. Schriro, 243 F.3d 1097, 1100 (8th Cir. 2001)
(internal quotation marks omitted) (quoting Strickland, 466 U.S. at 694). The petitioner bears
the burden of showing such a reasonable probability, Lawrence v. Armontrout, 961 F.2d 113,
115 (8th Cir. 1992); and, in determining whether or not there was prejudice, the federal habeas
court considers the totality of the evidence, Armstrong v. Kemna, 590 F.3d 592, 596 (8th Cir.
2010) (citing Kimmelman, 477 U.S. at 381).
A habeas court need not address the prejudice prong if the attorney’s performance was
not deficient. See Parkus v. Bowersox, 157 F.3d 1136, 1140 (8th Cir. 1998). Likewise, a hebeas
court does not need to address counsel’s allegedly deficient performance if the petitioner has
failed to show prejudice. See Strickland, 466 U.S. at 697; Williams v. Locke, 403 F.3d 1022,
1025 (8th Cir. 2005).
The question “under 2254(d) is not whether [the federal habeas court] believe[s] the state
court’s determination under the Strickland standard was incorrect but whether that determination
was unreasonable – a substantially higher threshold.” Kennedy v. Kemna, 666 F.3d 472, 477 (8th
Cir. 2012) (internal quotation marks omitted) (quoting Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)). “Establishing that a state court’s application of Strickland was unreasonable under
§ 2254(d) is . . . difficult.” Harrington, 562 U.S. at 105. “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is
‘doubly’ so.” Id. (internal citations omitted). More specifically, when resolving an ineffective

14

assistance of trial counsel claim, a federal habeas court views the claim through two filters: first
the court defers to the judgments of trial counsel under Strickland, 466 U.S. at 689, and then the
court “defer[s] to the state courts’ application of federal law to the facts of the case, see Bell . . . ,
535 U.S. [at] 698-99 . . . .” Marcrum v. Luebbers, 509 F.3d 489, 501 (8th Cir. 2007).
(b) Merits of claim
A review of the trial transcript reveals that: Petitioner was the only person seen holding
a gun and shooting toward Victim on July 9, 2007; Petitioner was at least three feet away from
Victim at the time he shot Victim; the only wounds found on Victim’s body were three wounds
to Victim’s back; and one of those wounds was the cause of Victim’s death. The Court of
Appeals’ factual finding that Petitioner “shot . . . [V]ictim in the back from a distance of at least
three feet” is supported by the record and is presumed correct because Petitioner has not rebutted
the finding by clear and convincing evidence.

Therefore, the Missouri Court of Appeals’

decision that Petitioner failed to establish the prejudice prong of an ineffective assistance of
counsel claim is based on a reasonable determination of the facts in light of the evidence
presented at trial.
In the case cited by Petitioner, the Seventh Circuit’s decision in Carter, the Seventh
Circuit concluded the trial court did not commit reversible error in giving a modified alibi
instruction. Carter, 910 F.2d at 1531. In relevant part, the Seventh Circuit stated, “[a] defendant
in a criminal trial is entitled to have the jury consider any theory of defense that is supported by
law and that has some foundation in the evidence.”

Id. (emphasis added).

Similarly, in

Petitioner’s case, the Missouri Court of Appeals stated a self-defense instruction “must be given
by the trial court sua sponte when there is evidence to support it.” Jordan, No. ED99087, Mem.,

15

Resp’ts Ex. J, at 10 (emphasis added). To the extent Carter is relevant, it does not support a
different result in this habeas proceeding.
Petitioner has provided no basis for finding that the Missouri Court of Appeals’
application of the Strickland standard was contrary to or an unreasonable application of clearly
established federal law. In light of the highly deferential view given to counsel’s performance
and to the state court’s resolution of both state law issues and an ineffective assistance of counsel
claim, the Missouri Court of Appeals correctly and reasonably concluded Petitioner’s trial
attorney did not provide ineffective assistance of counsel in failing to request a self-defense
instruction. Ground one is denied.
2. Trial court error – Penalty phase testimony of uncharged crime
In his second ground, Petitioner seeks federal habeas relief based on the admission of Ms.
Tillman’s testimony regarding Petitioner’s uncharged conduct during the penalty phase. As the
facts supporting this ground, Petitioner states in full: “Ms. Louise Tillman was allowed to testify
during the penalty phase to uncorroborated inflammatory, statements of uncharged crimes. Ms.
Tillman testifi[ed] that her son was just another notch on Petitioner[’s] belt, and she once
overheard her son telling Petitioner to stop bragging about that dude you killed.”52 In his
traverse filed in support of his petition after Respondents filed their response to the petition,
however, Petitioner argues that his second ground is a claim that his trial attorney:
rendered ineffective assistance in failing to object, during Petitioner’s penalty
phase, when the State was allowed to call Ms. Tillman[, Victim’s] mother, to the
witness stand to testify about an alleg[ed] discussion she overheard Petitioner
talking to her son, bragging about another murder, that she alleges Petitioner
committed, without any proof.53
(Footnote added.)
52

Pet’r Pet’n at 7 [ECF No. 1 at 6].

53

Pet’r Traverse at 2 [ECF No. 14 at 2].

16

Respondents counter that the Court may not address the merits of the alleged trial court
error in this ground because Petitioner did not present that claim to the state courts and any error
in admitting the evidence is an issue of state law not cognizable in a federal habeas case. With
regard to any ineffective assistance of counsel claim presented in this ground, Respondents argue
the state court reasonably found that the exclusion of the challenged evidence at the penalty
phase would not have made a difference in the sentence recommended by the jury or imposed by
the trial court due to the manner of the killing and Petitioner’s admitted involvement in drug
dealing. Additionally, Respondents contend that Petitioner has not demonstrated that the state
court findings of fact in support of its resolution of this ineffective assistance of counsel claim
were unreasonable.
(a) Procedural default and cognizability
Respondents urge the Court to decline to consider the merits of this claim because
Petitioner failed to exhaust his state court remedies when he did not challenge the admission of
the penalty phase testimony in his direct appeal. Additionally, Respondents contend this claim is
not cognizable in a federal habeas proceeding because it is based on state law. Petitioner did not
reply to Respondents’ procedural default and cognizability arguments.
(i) Procedural default - Failure to exhaust
Before seeking federal habeas relief under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, a habeas petitioner “must exhaust available state
remedies by fairly presenting [any federal] claim in each appropriate state court.” Nash v.
Russell, 807 F.3d 892, 898 (8th Cir. 2015) (internal quotation marks omitted) (quoting Baldwin v.
Reese, 541 U.S. 27, 29 (2004)), cert. denied, 136 S. Ct. 1825 (2016)). To satisfy the exhaustion
requirement a state prisoner “must give the state courts one full opportunity to resolve any

17

constitutional issues by invoking one complete round of the State’s established appellate review
process.” Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011) (internal quotation marks omitted)
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

Claims that have not been

exhausted and fairly presented to the state courts are procedurally defaulted. Wemark v. Iowa,
322 F.3d 1018, 1022 (8th Cir. 2003) (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).
To exhaust a federal constitutional claim, a petitioner must present the claim to the state
courts “in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87
(8th Cir. 2012) (internal quotation marks omitted) (quoting Beaulieu v. Minnesota, 583 F.3d 570,
573 (8th Cir. 2009)). In Missouri state court proceedings, a litigant must raise constitutional
claims at the earliest opportunity and preserve them throughout the proceedings.

State v.

Liberty, 370 S.W.3d 537, 546 (Mo. 2012) (en banc) (citing State v. Wickizer, 583 S.W.2d 519,
523 (Mo. 1979) (en banc)).

Alleged trial court errors must be raised on direct appeal in

Missouri. See, e.g., Middleton v. State, 103 S.W.3d 726, 740 (Mo. 2003) (en banc) (alleged trial
court error in admitting a letter “constitutes a claim of trial error in the admission of [a]
document [that] must be raised on direct appeal and [is] not cognizable in a post-conviction
motion”). Therefore, any alleged trial court error regarding the admission of evidence not raised
on direct appeal is defaulted for purposes of federal habeas review.
A federal habeas court may not reach the merits of a federal constitutional claim
procedurally defaulted due to a petitioner’s failure to follow applicable state rules in raising the
claim in state court, unless a petitioner demonstrates either cause and prejudice or a miscarriage
of justice. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992); accord Skillicorn, 475 F.3d at 97677 (“Unless a habeas petitioner shows cause and prejudice or that he is actually innocent of the
charges, a [federal habeas] court may not reach the merits of procedurally defaulted claims in

18

which the petitioner failed to follow applicable state procedural rules in raising the claim”).
“Cause for a procedural default exists where ‘something external to the petitioner, something
that cannot fairly be attributed to him[,] . . . ‘impeded [his] efforts to comply with the State’s
procedural rule.’” Maples v. Thomas, 565 U.S. 266, 281 (2012) (alterations and emphasis in
original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Notably, “the precise
contours of the cause requirement have not been clearly defined.” Ivy v. Caspari, 173 F.3d 1136,
1140 (8th Cir. 1999). If a petitioner does not establish cause for the procedural default, the
habeas court need not determine whether he demonstrated actual prejudice. Cagle v. Norris, 474
F.3d 1090, 1099 (8th Cir. 2007).
To invoke the alternative fundamental miscarriage of justice exception to the procedural
default rule, a petitioner must present new evidence affirmatively demonstrating that he is
innocent of the crime for which he was convicted. Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir.
2006). “‘Without any new evidence of innocence, even the existence of a concededly meritorious
constitutional violation is not in itself sufficient to establish a miscarriage of justice that would
allow a habeas court to reach the merits of a barred claim.’” Cagle, 474 F.3d at 1099 (quoting
Schlup v. Delo, 513 U.S. 298, 316 (1995)).
Petitioner did not pursue on direct appeal a constitutional challenge to the admission of
Ms. Tillman’s penalty phase testimony regarding Petitioner’s uncharged conduct. Therefore, any
constitutional claim regarding the trial court’s admission of that testimony is procedurally
defaulted. Petitioner has not asserted or demonstrated any cause for his failure to present the
state courts with a claim of constitutional trial court error. Because Petitioner has not established
the requisite cause, the Court need not consider whether Petitioner has demonstrated the
prejudice required to overcome a procedural default. Finally, Petitioner has not submitted any

19

new evidence of his actual innocence, nor has he alleged such evidence exists. Therefore,
neither cause and prejudice nor a fundamental miscarriage of justice exists to avoid the
procedural default of Petitioner’s claim of trial court error.
(ii) Cognizability
Respondents also argue that Petitioner’s claim of trial court error in the admission of Ms.
Tillman’s challenged penalty phase testimony is not cognizable because it is based on state law.
“[O]nly noncompliance with federal law” renders a state court’s criminal judgment “susceptible
to collateral attack in the federal courts.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (emphasis in
original); 28 U.S.C. § 2254(a) (a state prisoner may obtain a federal writ “only on the ground that
[the prisoner] is in custody in violation of the Constitution or laws or treaties of the United
States”). Federal habeas relief is not available “for errors of state law.” Estelle, 502 U.S. at 67
(internal quotation marks omitted) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Thus,
to the extent Petitioner’s second ground for relief presents a claim that the trial court erroneously
admitted Ms. Tillman’s challenged penalty phase testimony in violation of state evidentiary rules
and related authority, such a claim is not cognizable in this federal habeas proceeding.
Petitioner’s reliance on Dudley v. Duckworth, 854 F.2d 967 (7th Cir. 1988) is unavailing.
In Duckworth, the Seventh Circuit affirmed the grant of habeas relief upon concluding the
admission of certain evidence violated the state prisoner’s Fourteenth Amendment rights. Id.
Having concluded the Court is unable to consider the merits of Petitioner’s trial court error
claim, either due to a procedural bar or to the claim’s non-cognizability, the Court need not
further consider the Dudley decision.
Ground two is procedurally barred and not cognizable to the extent it is a claim of trial
court error.

20

3. Ineffective assistance of trial counsel –
Failure to object to challenged penalty phase testimony
In his traverse, Petitioner argues that his second ground is a claim that his trial attorney
rendered ineffective assistance in failing to object, during Petitioner’s penalty phase, when Ms.
Tillman stated she overheard a conversation in which Victim told Petitioner to stop talking about
“killing a dude.” Respondents counter that the state courts’ rejection of the claim in Petitioner’s
post-conviction appeal does not constitute an incorrect or unreasonable application of clearly
established federal law and was based on a reasonable determination of the facts. Therefore,
Respondents contend, this ground lacks merit.
In Petitioner’s post-conviction appeal, the Missouri Court of Appeals found the
admission of Ms. Tillman’s challenged testimony during the penalty phase was error because the
State did not prove the uncharged conduct by a preponderance of the evidence.54 Nevertheless,
the Court of Appeals concluded counsel’s failure to object to the testimony did not constitute
ineffective assistance of counsel because Petitioner did not demonstrate:

“a reasonable

likelihood that it affected the jury’s recommended sentences and the sentence given by the court.
Rather, the evidence at sentencing highlighted that [Petitioner] had shot [Victim] multiple times
in the back after [Petitioner] had [Victim]’s gun and . . . [Victim] no longer posed any threat to
[Petitioner].”55
The transcript supports these Missouri Court of Appeals factual findings and they are
presumed correct because Petitioner has not rebutted them by clear and convincing evidence.
Moreover, as Respondents argue, the record clearly discloses Petitioner’s own testimony that he
sold drugs for Victim for several years. The Missouri Court of Appeals’ decision that Petitioner
54

Jordan, No. ED99087, Mem., Resp’ts Ex. J, at 7.

55

Jordan, No. ED99087, Mem., Resp’ts Ex. J, at 7.

21

failed to establish the prejudice prong of an ineffective assistance of counsel claim is based on a
reasonable determination of the facts in light of the evidence presented.
Petitioner has provided no basis for finding that the Missouri Court of Appeals’
application of the Strickland standard was contrary to or an unreasonable application of clearly
established federal law. To the extent Petitioner asks the Court to consider the Seventh Circuit’s
Dudley decision in support of this ineffective assistance of counsel claim, the Court concludes it
is inapposite because no ineffective assistance of counsel claim was before the Seventh Circuit in
the Dudley case.
In light of the highly deferential review the Court accords state court decisions regarding
ineffective assistance of counsel claims, the Missouri Court of Appeals correctly and reasonably
concluded Petitioner did not establish the prejudice needed to find his trial attorney provided
ineffective assistance of counsel in failing to object to Ms. Tillman’s penalty phase testimony.
Ground two is denied on its merits to the extent it presents an ineffective assistance of counsel
claim.
IV. Certificate of Appealability
To grant a certificate of appealability, the Court must find a substantial showing of the
denial of a federal constitutional right. 28 U.S.C. § 2253(c); see also Tiedeman v. Benson, 122
F.3d 518, 523 (8th Cir. 1997). A substantial showing is a showing that the “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) (citing Flieger v. Delo, 16
F.3d 878, 882-83 (8th Cir. 1994)). Because Petitioner has not made such a showing, the Court
will not issue a certificate of appealability.

22

V. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Josh Hawley, Attorney General of the State of
Missouri, is ADDED as a Respondent.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is
DENIED. [Doc. 1]
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate judgment shall accompany this Memorandum and Order.

______________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this 30th day of March, 2017.

23