Roberson v. Villmer

Filing 15

MEMORANDUM AND ORDER: For the reasons discussed above, the Court concludes that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly est ablished federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). A judgment in accordance with this Memorandum will be entered separately. Signed by District Judge Carol E. Jackson on 3/30/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY ROBERSON,

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Petitioner,
vs.
TOM VILLMER,
Respondent.

Case No. 4:14-CV-45 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Anthony Roberson for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a response in
opposition and petitioner has filed a traverse.
I.

Background
A. Trial
In 2006, a jury in the St. Charles Count Circuit Court found petitioner guilty

of driving while intoxicated (DWI).

He was sentenced by the court as a chronic

offender to a 15-year term of imprisonment, pursuant to Mo. Rev. Stat. § 577.023
(Cum. Supp. 2005).
Although the chronic offender statute only required proof of four prior
convictions for intoxication-related traffic offenses, the State presented evidence
that petitioner had six such convictions: (1) two 1981 St. Louis County
manslaughter convictions for offenses on the same date (counted as one prior
offense); (2) a 1985 St. Louis County guilty plea to driving with excessive blood
alcohol; (3) a 1988 Calverton Park municipal conviction for driving while

intoxicated; (4) a 1995 St. Charles County guilty plea to driving while intoxicated;
(5) a 2001 St. Charles County guilty plea to driving while intoxicated and (6) a
1983 St. Louis County conviction for driving while intoxicated. Resp. Ex. A, at 2324. Prior to sentencing, the State offered into evidence documentation of the prior
convictions. When defense counsel objected that he had not had a chance to look
at the documents, the court gave him time to examine them. Defense counsel then
objected to the admissibility of one of the documents, a Missouri Uniform Law
Enforcement System (MULES) record that was offered as evidence of the Calverton
Park conviction.

After reviewing the documents, defense counsel withdrew his

objections. Resp. Ex. C, at 9-11.
B. Direct Appeal
In July 2009, petitioner’s appellate counsel wrote a letter to petitioner stating
that he could only ask for a sentence reduction on appeal if the sentence received
was greater than that authorized by law.

[Doc. #1-4].

In September 2009,

counsel wrote to the prosecutor requesting copies of the exhibits that were used to
prove petitioner’s prior convictions. [Doc. #1-5]. On direct appeal, counsel did not
challenge the sufficiency of the evidence to support the sentencing enhancement.
Instead, the sole issue raised on appeal was that the trial court erred in overruling
the defense’s objections and requests for mistrial based on a statement made by
the prosecutor during voir dire. Resp. Ex. E, at 12.

Petitioner’s conviction and

sentence were affirmed by the Missouri Court of Appeals on May 18, 2010. Resp.
Ex. G, at 1.

The appellate court noted that petitioner did not challenge the

sufficiency of the evidence. Resp. Ex. G, at 4.
C. State Post-Conviction Proceedings

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On July 26, 2010, petitioner filed a pro se motion to vacate, set aside or
correct the judgment or sentence pursuant to Missouri Supreme Court Rule 29.15 in
which he raised the following claims: (1) his conviction was unconstitutional
because Missouri’s driving while intoxicated statute was vague; (2) trial counsel
was ineffective for failing to challenge the constitutionality of the Missouri driving
while intoxicated statute; and (3) trial counsel was ineffective for failing to call two
witnesses to testify on behalf of petitioner.

Resp. Ex. I, at 18, 21, 23.

On

September 9, 2011, the motion court granted an evidentiary hearing only as to the
third claim, which was ultimately denied on the merits.

On appeal, petitioner

challenged only the motion court’s denial of relief on the third claim. Resp. Ex. K, at
13.

The judgment of the motion court was affirmed.

Roberson v. State, 383

S.W.3d 479 (Mo. App. E.D. 2012).
On April 5, 2012, petitioner filed a Rule 91 petition for habeas corpus in the
Circuit Court of Cole County, Missouri, alleging ineffective assistance of trial and
appellate counsel for failing to object to the chronic offender enhancement. Resp.
Ex. Q, at 3. The court denied relief on September 5, 2012, finding that a petitioner
could not use a proceeding in habeas corpus to challenge the sufficiency of the
evidence supporting a trial court’s finding of sufficient prior convictions if the
challenge could have been brought in the ordinary course of review. Resp. Ex. R,
at 1. On October 25, 2012, petitioner filed a Rule 91 petition for habeas corpus in
the Missouri Court of Appeals Western District which was summarily denied on
October 30, 2012. Resp. Ex. T, at 1. On February 13, 2013, petitioner filed a Rule
91 petition for habeas corpus in the Missouri Supreme Court; after ordering the
State to file a response, the court denied the petition on June 11, 2013. Resp. Ex.

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V, at 1. In all of these petitions, which are substantially identical, petitioner alleges
ineffective assistance of trial and appellate counsel for failing to object to the
classification of petitioner as a chronic offender.
II.

Legal Standard
When a claim has been adjudicated on the merits in state court proceedings,

habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court’s determination:
(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)(1)–(2).
A state court’s decision is “contrary to” clearly established law if “it applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or
if it confronts a set of facts that is materially indistinguishable from a decision of
[the Supreme Court] but reaches a different result.”
133, 141 (2005).

Brown v. Payton, 544 U.S.

“The state court need not cite or even be aware of the governing

Supreme Court cases, ‘so long as neither the reasoning nor the result of the statecourt decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.
2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis
of the state court’s decision, [the federal court’s] focus is on the result and any
reasoning that the court may have given; the absence of reasoning is not a barrier
to a denial of relief.” Id.

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A decision involves an “unreasonable application” of clearly established law if
“the state court applies [the Supreme Court’s] precedents to the facts in an
objectively unreasonable manner,” Payton, 125 S. Ct. at 1439; Williams v. Taylor,
529 U.S. 362, 405 (2000), or “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it
should apply.”

Id. at 406.

“Federal habeas relief is warranted only when the

refusal was ‘objectively unreasonable,’ not when it was merely erroneous or
incorrect.” Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quoting Williams,
529 U.S. at 410–11).
The factual findings of the state court also may be challenged in a § 2254
petition, but they are subject to an even more deferential review. Relief may be
granted if the state court adjudication “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)(2).

Factual findings by the state

court “shall be presumed to be correct,” a presumption that will be rebutted only by
“clear and convincing evidence.” Kinder v. Bowersox, 272 F.3d 532, 538 (8th
Cir.2001) (citing 28 U.S.C. § 2254(e)(1)).
To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must show that his attorney’s performance fell below an objective
standard of reasonableness and that he was prejudiced thereby. Strickland v.
Washington, 466 U.S. 668, 687 (1984). With respect to the first Strickland prong,
there exists a strong presumption that counsel’s conduct falls within the wide range
of professionally reasonable assistance. Id. at 689. The reviewing court must refrain

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“from engaging in hindsight or second-guessing of trial counsel’s strategic
decisions.” Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir. 2014) (citation
omitted).

In order to establish prejudice, the second Strickland prong, 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; see also Paulson v. Newton Corr. Facility, Warden, 773 F.3d
901, 904 (8th Cir. 2014) (citation omitted) (“Merely showing a conceivable effect is
not enough; a reasonable probability is one sufficient to undermine confidence in
the outcome.”)
“Taken 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, 563 U.S. 170, 202 (2011)).
First, under Strickland, the state court must make a predictive
judgment about the effect of the alleged deficiencies of counsel on the
outcome of the trial, focusing on whether it is “reasonably likely” that
the result would have been different absent the errors. Strickland, 466
U.S. at 696. . . To satisfy Strickland, the likelihood of a different result
must be “substantial, not just conceivable.” Id. Under AEDPA, [federal
courts] must then give substantial deference to the state court’s
predictive judgment. So long as the state court’s decision was not
“contrary to” clearly established law, the remaining question under the
“unreasonable application” clause of § 2254(d) is whether the state
court’s determination under the Strickland standard is unreasonable,
not merely whether it is incorrect. Harrington v. Richter, [562 U.S. 86,
101] (2011). This standard was meant to be difficult to meet, and
“even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. [at 102].
Id. at 831-32. “When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable. The question is whether there is any reasonable

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argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562
U.S. at 105.
III.

Discussion
In the instant § 2254 petition, petitioner asserts the following grounds for

relief: (1) that trial counsel was ineffective for failing to investigate and object to
four of the prior convictions used to enhance petitioner’s sentence and (2) that
appellate counsel was ineffective for failing to challenge the sufficiency of the
evidence to support the sentencing enhancement.

Respondent contends that

Grounds 1 and 2 are without merit and are procedurally defaulted because
petitioner failed to assert them on direct and post-conviction appeal.
To preserve a claim for federal habeas review, a state prisoner must fairly
present his claim 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.” Id. at 1151 (citing Coleman v.
Thompson, 501 U.S. 722, 731–32 (1991)). In Missouri, a post-conviction motion
proceeding is the exclusive procedure for pursuing an ineffective assistance of
counsel claim. A motion court’s decision is subject to appeal, and successive postconviction motions are not permitted. Mo. S.Ct. Rule 29.15(a) 1, 29.15(k); 29.15(l);
Moore–El v. Luebbers, 446 F.3d 890, 896 (8th Cir.2006) (explaining that Missouri
law requires a habeas petitioner to bring any claim of ineffective assistance of
1

Rule 29.15 also requires the movant to acknowledge that any known claims not presented
in the motion are waived. Mo. Sup.Ct. R. 29.15(d). By failing to present the ineffective
assistance of trial and appellate counsel claims in his Rule 29.15 motion, petitioner
effectively waived these claims under Missouri law.

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counsel in a motion for post-conviction relief under Rule 29.15).

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 and habeas review of the claim is barred. See Interiano v. Dormire, 471
F.3d 854, 856 (8th Cir.2006) (finding that claims not presented in an amended Rule
29.15 post-conviction motion or appeal from the denial of that motion are
procedurally defaulted); Sweet v. Delo, 125 F.3d at 1151 (holding that a state
prisoner that 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).
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 demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To
demonstrate cause, a petitioner must show that “some objective factor external to
the defense impeded [the prisoner’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 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). 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)).

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In the instant case, petitioner did not assert the ineffective assistance claims
in Grounds 1 and 2 in his Rule 29.15 motion. He did assert them in his Rule 91
state habeas petition, but that does not cure the procedural default. Under Missouri
law, a Rule 91 habeas petition may not be used to present claims that could have
been raised on direct appeal or in a motion under Rule 29.15. State ex rel. Green v.
Moore, 131 S.W.3d 803, 805 (Mo.2004); see also Francis v. Miller, 557 F.3d 894,
899 (8th Cir.2009) (stating Rule 29.15 is a “firmly established and regularly
followed”

state

procedural

rule

that

provides

“substantive,

well-established

procedures that movants are required to follow in order to have their claims
considered post-trial.”).

The Eighth Circuit has also consistently held that the

presentation of federal grounds in the state court petition for a writ of habeas
corpus under Rule 91 does not satisfy the requirement that a petitioner properly
present the merits of his federal grounds to the state trial and appellate courts
when the state courts deny the petition on state procedural grounds and do not
reach the merits of the defaulted claim. See Anderson v. White, 32 F.3d 320, 321
n. 2 (8th Cir.1994) (Rule 91 habeas petitions “do not resurrect [the petitioner’s]
procedurally defaulted claims, for [the petitioner] has not shown that the Missouri
Supreme Court addressed the merits of his federal claims”); Byrd v. Delo, 942 F.2d
1226, 1232 (8th Cir.1991) (finding on the basis of United States Supreme Court
precedent there is simply no reason to construe an unexplained Rule 91 denial as
opening up the merits of a previously defaulted federal issue.”); see also Roger v.
Bowersox, No. 4:05–CV–2051–DDN, 2008 WL 4790344, at * 12 (E.D.Mo. Oct. 31,
2008) (finding that the “presentation of the federal grounds in the state court
petition for a writ of habeas corpus under Missouri Supreme Court Rule 91 did not

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satisfy the requirement that petitioner properly present the merits of his federal
grounds to the state trial and appellate courts.”).
The Court concludes that petitioner’s ineffective assistance of trial and
appellate claims in Grounds 1 and 2 are procedurally defaulted.

Thus, petitioner

must demonstrate cause and actual prejudice in order to remove the procedural
bar. Coleman, 501 U.S. at 750.
Ground 1 – Ineffective Assistance of Trial Counsel
Petitioner concedes that he failed to raise the ineffective assistance of trial
counsel claim in Ground 1 in his Rule 29.15 motion, but he argues that this default
is excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012). In Martinez, the United
States Supreme Court held that the ineffective assistance of a petitioner’s postconviction counsel may establish cause for failure properly to present an ineffective
assistance of trial counsel claim in state court.

Thus, when a state, such as

Missouri,
requires a prisoner to raise an ineffective-assistance-of-trial-counsel
claim in a collateral proceeding, a prisoner may establish cause for a
default of an ineffective-assistance claim in two circumstances. The
first is where the state courts did not appoint counsel in the initialreview collateral proceeding for a claim of ineffective assistance at tria.
The second is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was ineffective
under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
To overcome the default, a prisoner must also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322 (2003).
Id. at 1318.
Applying the Martinez holding to this case, even if petitioner’s counsel was
ineffective for failing to present the Ground 1 claim in the post-conviction

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proceedings, petitioner cannot establish that the underlying claim of ineffective
assistance of trial counsel was a substantial one.
As discussed above, trial counsel did initially object to the chronic offender
enhancement but withdrew the objection after reviewing the documentation of
petitioner’s prior convictions.

The trial court also reviewed the documents and

found them sufficient to support the enhancement.

As evidence of ineffective

assistance, petitioner points to trial counsel’s unsureness of whether the Missouri
Uniform Law Enforcement System (MULES) records were sufficient to prove chronic
offender status.

However, this argument fails as MULES records are specifically

listed under the statute as sufficient to prove offender status under Mo. Ann. Stat. §
577.023.16.2 Trial counsel cannot be faulted for not objecting to evidence that was
admissible.
Further, the MULES record was sufficient to prove that the 1988 Calverton
Park conviction was an intoxication-related offense.

The record shows that

petitioner waived counsel, was found guilty of driving while intoxicated, and was
fined $300.00. Section 577.023.1(3) of the chronic offender statute in effect at the
time of petitioner’s trial defined “intoxication-related traffic offense” as
driving while intoxicated, driving with excessive blood alcohol content,
involuntary manslaughter pursuant to subdivision (2) or (3) of
subsection 1 of section 565.024, RSMo, murder in the second degree
under section 565.021, RSMo, where the underlying felony is an
intoxication-related traffic offense, assault in the second degree
pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo,
assault of a law enforcement officer in the second degree pursuant to
subdivision (4) of subsection 1 of section 565.082, RSMo, or driving
2

The statute provides, in relevant part: “Evidence of prior convictions shall be heard and
determined by the trial court out of the hearing of the jury . . . and shall include but not be
limited to evidence of convictions received by a search of the records of the Missouri
uniform law enforcement system maintained by the Missouri state highway patrol.”

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under the influence of alcohol or drugs in violation of state law or a
county or municipal ordinance, where the defendant was represented
by or waived the right to an attorney in writing. . . [emphasis added]
Thus, an objection to the inclusion of the Calverton Park conviction would have
been futile.

Petitioner concedes that three of his prior convictions were

intoxication-related offenses.

To qualify as a chronic offender, only one more

conviction was needed. When the Calverton Park conviction is counted, there was
sufficient evidence to support the chronic offender designation. Because the State’s
evidence was sufficient to support the enhancement, petitioner did not have a
substantial underlying claim of ineffective assistance of trial counsel. Petitioner is
not entitled to relief on Ground 1.
Ground 2 – Ineffective Assistance of Appellate Counsel
As discussed above, there is no merit to petitioner’s claim that the evidence
was insufficient to establish the chronic offender enhancement.

Thus, counsel’s

failure to challenge the sufficiency of the evidence on direct appeal does not
constitute ineffective assistance.
It is a general rule that errors made by post-conviction counsel cannot serve
as “cause” to excuse procedural default. Coleman,

501 U.S. at 752–754.

In

Martinez v. Ryan, the Supreme Court carved out a narrow exception to the
Coleman rule, holding that errors by post-conviction counsel may in some
circumstances serve as “cause” to excuse procedural default of claims of ineffective
assistance of trial counsel. 132 S.Ct. at 1315.

However, Martinez clearly

emphasized the limited nature of its holding: “Coleman held that an attorney's
negligence in a post-conviction proceeding does not establish cause, and this
remains true except as to initial-review proceedings for claims of ineffective
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assistance of counsel at trial.” Id. at 1319. Martinez did not change the rule that
ineffective assistance of post-conviction appellate counsel could not constitute
cause for state procedural default unless it has been presented to the state courts.
Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.2012). Indeed, the Eighth Circuit
expressly rejected the argument that an error by post-conviction counsel served as
cause to excuse a procedurally defaulted claim of ineffective appellate counsel,
stating, “[w]e...decline to extend Martinez to claims alleging ineffective assistance
of counsel on direct appeal.” Dansby v. Hobbs, 766 F.3d 809, 833 (8th Cir. 2014).
Thus, petitioner cannot use the ineffectiveness of his Rule 29.15 counsel to serve as
cause for his default of the ineffective assistance of direct appeal counsel claim.
Because petitioner has not established cause for the default, the question of
prejudice need not be reached. See Oglesby v. Bowersox, 592 F.3d 922, 926 (8th
Cir.2010) (citing Oxford v. Delo, 59 F.3d 741, 748 (8th Cir.1995)). As such, the
Court need not address the merits of petitioner's procedurally-defaulted claims
because petitioner's second ground for relief is barred from review under 28 U.S.C.
§ 2254.
IV.

Conclusion
For the reasons discussed above, the Court concludes that petitioner has

failed to establish that he is entitled to relief based on state court proceedings that
were contrary to, or an unreasonable application of, clearly established federal law,
or based upon an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also
failed to make a substantial showing of the denial of a constitutional right.

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Therefore, the Court will not issue a certificate of appealability. See Cox v. Norris,
133 F.3d 565, 569 (8th Cir. 1997).
A judgment in accordance with this Memorandum will be entered separately.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 30th day of March, 2017.

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