Walker v. Russell

Filing 15

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc. # 1 ], is DENIED. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 3/28/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JIMMIE WALKER,
Petitioner,
vs.
TERRY RUSSELL,
Respondent.

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) Case No: 4:14CV232 HEA
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OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 [Doc. #1] on February 7, 2014. On March 6, 2014, Petitioner filed
an AMENDED/REDACTED PETITION [Doc. #5]. On April 24, 2014, this court
granted Defendant’s Motion for Extension of Time to file Response/Reply. On
May 23, 2014 Defendant filed a Response To Order To Show Cause Why a Writ
of Habeas Corpus Should Not be Granted [Doc. #11]. The matter is now fully
briefed. For the reasons set forth below, the Petition Under 28 U. S. C. § 2254 For
Writ of Habeas Corpus by a Person in State Custody is denied.
Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United
States District Courts, this Court has determined that there are no issues asserted
that give rise to an evidentiary hearing and therefore one is not warranted.

Procedural Background
Petitioner was charged in the Circuit Court of Franklin County, Missouri
with one count of Forcible Rape and one count of Statutory Rape. A jury found
him guilty of both offenses. Petitioner took a timely appeal to the Missouri Court
of Appeals, Eastern District. The Missouri Court of Appeals affirmed his
convictions on direct appeal.
Thereafter, Petitioner timely filed a pro se post-conviction motion. No
amended motion was filed however a statement in lieu of the amended motion was
filed. The Circuit Court of Franklin County denied the motion for post-conviction
relief. A timely appeal was taken on the denial of the motion to the Missouri
Court of Appeals, Eastern District. The Missouri Court of Appeals affirmed the
denial of the post-conviction motion.
Petitioner raised seven grounds for relief in his Missouri Rule 29.15 motion
for post-conviction relief: 1) trial counsel was ineffective for not following up on
information provided by Walker as to potential witnesses; 2) trial counsel should
have called L.M.A. as an alibi witness; 3) trial counsel should have had a
psychologist conduct an examination of C.A.; 4) trial counsel should have objected
to the prosecutor allowing the jury to believe that Connilee Boehne was an expert
witness; 5) the trial court erred in overruling an objection to Davis Stansfield’s
proposed expert testimony; 6) trial counsel should have asked about pre-trial
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publicity during voir dire; 7) trial counsel should have introduced the SAFE Exam
and C.A.’s deposition into evidence. Petitioner only raised one claim on appeal of
the adverse post-conviction ruling – that trial counsel was ineffective for failing to
call L.M.A. as an alibi witness.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254
(“AEDPA”) applies to all petitions for habeas relief filed by state prisoners after
the statute’s effective date of April 24, 1996. When reviewing a claim that has
been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the 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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
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Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
States Supreme Court did on materially indistinguishable facts. Id. A decision may
only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
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unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Procedural Default
A petitioner must first properly exhaust state remedies before presenting a
claim in a federal habeas petition. 28 U.S.C. § 2254(b). In order to exhaust state
remedies, an offender must fairly present the “substance” of the claim to the state
courts. Anderson v. Harless, 459 U.S. 4, 6 (1982). It is elementary that the
offender’s federal court claim must assert the same factual and legal basis as the
state court claim. Flieger v. Delo, 16 F.3d 878, 885 (8th Cir. 1996); see also King
v. Kemna, 266 F.3d 816, 821 (8th Cir. banc 2001). Proper presentation of the claim
requires the offender to raise the claim on direct appeal or in state post-conviction
proceedings, including on post-conviction appeal. Flieger, 16 F.3d at 885; see also
Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006); Osborne v. Purkett, 411 F.3d
911, 919 (8th Cir. 2005); Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir. 1994).

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Where a petitioner has not properly exhausted state remedies on a claim and
the time for doing so has expired, he has technically exhausted that claim, but he
has also procedurally defaulted that claim. Welch v. Lund, 616 F.3d 756, 758, 760
(8th Cir. 2010). In this situation, the federal court should not review the claim
unless the petitioner can show “cause and prejudice” excusing that procedural
default. Id. at 760.
Discussion
Petitioner asserts eleven grounds for relief. There are four numbered (1-4)
grounds and seven lettered (A-G) grounds from his state post-conviction motion.
He only presented one claim to the Missouri courts – trial counsel should have
called L.M.A. as an alibi witness. As to this claim the state courts reasonably
concluded trial counsel appropriately did not call L.M.A. to avoid opening the door
to evidence that Petitioner had sexually abused L.M.A.’s sister and that the failure
to call L.M.A. did not prejudice Walker.
In reviewing the claims set forth by Petitioner the court observes that three
of his claims assert trial court error (Ground One, Ground Two, and PostConviction Claim E). These claims were not raised in the state courts actions. The
claims are defaulted and he may not allege “cause” excusing that default based on
ineffective assistance of appellate counsel if he did not assert a claim of ineffective
assistance of appellate counsel in state court nor has cause to excuse the default of
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the ineffective assistance of counsel claim. Edwards v. Carpenter, 529 U.S. 446,
450-54 (1999); see also Fields v. Roper, 448 F.Supp.2d 1113, 1117 (E.D. Mo.
2006). Petitioner did not assert any claim related to Ground One or Ground Two
in his post-conviction motion, and only asserted trial court error – not ineffective
assistance of appellate counsel – for Post-Conviction Claim E. He is required to
show cause for the failure to assert ineffective assistance of appellate counsel on
these three claims in his post-conviction motion.
Even though Petitioner did assert Post-Conviction Claims A, C, D, E, F, and
G in his post-conviction motion and Ground Three duplicates Post-Conviction
Claim G, he, to his great disadvantage and dismay, failed to raise any of these
claims on post-conviction appeal.
Martinez v. Ryan, 132 S. Ct. 1309 (2012) is perhaps the benchmark on this
issue. There, the United States Supreme Court recognized that ineffective
assistance of post-conviction motion counsel could qualify as cause excusing the
failure to raise a claim in the post-conviction motion. It is incumbent upon
petitioner to show that initial post-conviction counsel was ineffective in failing to
raise a substantial claim of ineffective assistance by trial counsel. Id. at 1318-19.
Failure of initial post-conviction counsel to raise a claim of ineffective assistance
of direct appeal counsel is not cause permitting that type of claim to be raised in
federal court. Hodges v. Carlson, 727 F.3d 517, 531 (6th Cir. 2013); Banks v.
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Workman, 692 F.3d 1133, 1147-48 (10th Cir. 2012). He is, therefore , foreclosed
from raising these claims now.
Ground Four, on its face is insubstantial. Motion counsel was not, therefore,
ineffective for not including Ground Four in the post-conviction motion.
POST-CONVICTION CLAIM B
Walker alleges that trial counsel should have called L.M.A. to provide
testimony about how long C.A. was with Walker after leaving L.M.A.’s home.
The motion court found that trial counsel reasonably opted against calling L.M.A.
to avoid opening the door to evidence that Walker had abused L.M.A.’s sister.
Respondent’s Exhibit G, page 60.
The Missouri Court of Appeals found that the proposed testimony from
L.M.A. would not have provided an actual alibi. The motion court and the
Missouri Court of Appeals correctly stated the standard under established federal
law governing claims of ineffective assistance of counsel – that the inmate must
prove both incompetence on the part of counsel and prejudice (a reasonable
probability of a different result) from that incompetence. The issue is whether the
state courts unreasonably applied that standard or unreasonably determined the
facts.
Petitioner alleged in his post-conviction motion that L.M.A. could have
testified as to how much time passed between when he and C.A. left L.M.A.’s
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residence and when they returned. Respondent’s Exhibit G, page 16. However, he
did not allege how long this time actually was. Respondent’s Exhibit G, pages 1618. He merely alleged that, regardless of how long this time actually was, it would
not be long enough for him to have committed the rape because that would have
taken “a lot of time.” Respondent’s Exhibit G, page 16. He also alleged that
L.M.A. could have testified as to the relatives who actually came to L.M.A.’s
residence that day, which allegedly would have been inconsistent with C.A.’s
memory. Respondent’s Exhibit G, page 17.
The Missouri Court of Appeals, Eastern District, reasonably found that the
proposed testimony would merely verify that Petitioner took C.A. to go shopping
that day and that L.M.A. could not testify as to where Walker took C.A. or how
long he was at a particular location. Respondent’s Exhibit J, page 4. The Petitioner
did not allege what specific testimony he expected from L.M.A., but rather alleged
the legal conclusion of, whatever L.M.A. said, it would be inconsistent with C.A.’s
testimony.
The Missouri Court of Appeals reasonably concluded that Petitioner’s
allegations were insufficient to demonstrate prejudice. As an additional
observation, the motion court reasonably found that competent trial counsel would
have avoided calling L.M.A. (or any other member of Petitioner’s family) to avoid

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possibly opening the door to cross-examination about Walker’s sexual abuse of
B.W.B. Respondent’s Exhibit G.
To reiterate, the appeal of the adverse post-conviction relief ruling did not
include Grounds one through four, inclusive. The appeal also failed to include
Post-Conviction Claims A, C, D, E, F, and G. As such these Grounds and Claims
are not worthy of discussion. The court again notes that proper presentation of the
claim requires the offender to raise the claim on direct appeal or in state postconviction proceedings, including on post-conviction appeal. Flieger, 16 F.3d at
885; see also Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006); Osborne v. Purkett,
411 F.3d 911, 919 (8th Cir. 2005); Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir.
1994). There is nothing in the record or allegations of Petitioner that establishes
cause or excuse for the allowance of the review of the aforementioned Grounds
and/or Claims.
Conclusion
Having reviewed the record in its entirety, it is clear the Petitioner is not
entitled to any relief. The state courts’ rulings with respect to Petitioner’s prayer
for relief were neither contrary to, nor unreasonable applications of, clearly
established federal law. Thus, the Petition for Writ of Habeas Corpus should be ,
and is, denied.
Certificate of Appealability
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When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
Cases in the U.S. Dist. Cts., R. 11 “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002). Petitioner’s federal habeas petition is clearly
time-barred under AEDPA, and no reasonable jurist could find this case is timely
filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786. Hence, no certificate
of appealability will be issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc. # 1], is DENIED.
IT IS FURTHER ORDERED that no certificate of appealability shall
issue.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 28th day of March, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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