Gillispie v. Steele

Filing 16

MEMORANDUM AND ORDER IT IS HEREBY ORDERED the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. [Doc. 1.]IT IS FURTHER ORDERED that a separate judgment will be entered this same date.IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Artoska Gillispie for a Certificate of Appealability will be DENIED. Signed by Magistrate Judge Nannette A. Baker on 3/29/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARTOSKA GILLISPIE,
Petitioner,
v.
CINDY GRIFFITH, 1
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:14-CV-257 NAB

MEMORANDUM AND ORDER
This action is before the Court on Petitioner Artoska Gillispie’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Respondent filed a response to the
Petition for Writ of Habeas Corpus. [Doc. 6.] The parties have consented to the jurisdiction of
the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 5.] For
the reasons set forth below, Gillispie’s petition for writ of habeas corpus will be denied.
I.

Background
After a jury trial, Gillispie was convicted of first degree robbery and sentenced to twenty-

five years. 2 (Resp’t Ex. E at 58-60.) The following evidence, in the light most favorable to the
verdict, was presented at trial. 3 An individual entered a U.S. Cellular Store, brandished a gun,

1

During the pendency of the Petition, Cindy Griffith became the warden at Potosi Correctional
Center where Petitioner is incarcerated. Pursuant to Rule 2 of the Rules Governing Section 2254
Cases in the United States District Courts, the Respondent is the state officer who has custody.
Therefore, the Clerk of Court is ordered to add Cindy Griffith as the Respondent and remove
Troy Steele’s name.
2
Gillispie was also convicted of possession of a controlled substance and sentenced to one year,
to run concurrently with his sentence on the robbery count. (Resp’t Ex. E at 58-60.)
3
These facts are taken substantially from the Supplemental Memorandum accompanying the
Missouri Court of Appeals decision in Gillispie’s direct appeal. (Resp’t Ex. I.) A state court’s
determination of a factual issue shall be presumed to be correct. 28 U.S.C. § 2254.

and forced the two employees present to give him $254 from a safe, approximately $1,200 from
the registers, four cell phones, and three Bluetooth headsets. The employees gave descriptions of
the individual, there was store security surveillance footage of him, and one of the employees
identified the individual as Gillispie from a photo. Police sought to locate Gillispie, who had a
wanted, by tracking his cell phone. The tracking information placed Gillispie in the area of the
U.S. Cellular store approximately fifteen minutes prior to the robbery. Police located Gillispie at
a Motel 6 and discovered stolen items from the robbery in the motel room where Gillispie was
arrested.
Following his conviction, Gillispie filed a direct appeal. (Resp’t Ex. G.) His sole point on
appeal was that the trial court erred in failing to intervene sua sponte and declare a mistrial or
issue a curative instruction when Detective Donald Stepp testified that he noticed Gilispie’s
height and build were “very similar to the individual that was in the video from U.S. Cellular”
and that he “felt that we had the correct individual in custody.” The Missouri Court of Appeals
affirmed the verdict. (Resp’t Ex. I.)
Following his direct appeal, Gillispie filed a pro se Motion to Vacate, Set Aside or Correct
the Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp’t Ex. J at 316.) Post-conviction counsel filed an amended motion, arguing that appellate counsel had been
ineffective in failing to appeal (1) the overruling of Gillispie’s Batson objection, (2) the denial in
part of his motion to suppress evidence seized from the motel room, and (3) the overruling of
Gillispie’s motion in limine to exclude evidence of his warrants or “wanteds.” Id. at 20-32. The
post-conviction motion court denied the motion without an evidentiary hearing. Id. at 45-53.
The Court of Appeals affirmed. (Resp’t Ex. M.)

2

Gillispie then filed his Petition for Writ of Habeas Corpus in this court on February 12,
2014. [Doc 1.] The Respondent filed a response in opposition. [Doc 6.] Gillispie filed a reply.
[Doc. 14.]
II.

Standard of Review
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in

violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ,
a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91
(2011). “In general, if a convicted state criminal defendant can show a federal habeas court that
his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of
habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 133 S.Ct.
1911, 1917 (2013). The Anti-Terrorism 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 this
statute’s effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In
conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding
whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a
decision that is contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. 28 U.S.C. § 2254(d). A determination of a factual issue made by a state court is
presumed to be correct unless the petitioner successfully rebuts the presumption of correctness
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
For purposes of § 2254(d)(1), the phrase “clearly established federal law refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the

3

relevant state court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). “In other words,
clearly established federal law under § 2254(d)(1) is the governing legal principle or principles
set forth by the Supreme Court at the time the state court renders its decision.” Id. at 72. To
obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent
which he thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris,
459 F.3d 849, 853 (8th Cir. 2006).
A state court’s decision is “contrary to” clearly established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme
Court] cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of
[the] Court and nevertheless arrives at a result different from [the] precedent.’” Penry v.
Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)).
A state court decision is an unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case. Id. (citing Williams, 529 U.S. at 407–408). “A federal habeas
court making the unreasonable application inquiry should ask whether the state court’s
application of clearly established federal law was objectively unreasonable.” Penry, 532 U.S. at
793. “A state court decision involves ‘an unreasonable determination of the facts in light of the
evidence presented in the 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.”
Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute error is
inconsistent with the presumption that state courts know and follow the law.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). AEDPA’s highly deferential standard demands that state court
decisions be given the benefit of the doubt. Id.

4

III.

Discussion
In his petition, Gillispie reasserts the claims raised in his direct appeal and his amended

post-conviction motion. In Ground 1, Gillispie reasserts his sole point on direct appeal, that the
trial court erred in failing to intervene sua sponte when Detective Donald Stepp testified as to the
ultimate issue of whether Gillispie was in fact the robber depicted in the video. In Grounds 2
through 4, he reasserts the claims raised in his amended post-conviction motion, that appellate
counsel was ineffective in failing to appeal (1) the overruling of Gillispie’s Batson objection, (2)
the denial in part of his motion to suppress evidence seized from the motel room where he was
arrested, and (3) the overruling of Gillispie’s motion in limine to exclude evidence of his
warrants or “wanteds.” Respondent argues that Ground 1 is procedurally defaulted because the
Court of Appeals reviewed it for plain error. Respondent further argues that the Court should
defer to the Court of Appeals’ rulings denying all four grounds. For the following reasons,
Gillispie’s petition will be denied.
A.

Trial Court Error (Ground 1)

In Ground 1, Gillispie reasserts his sole point on direct appeal, that the trial court erred in
failing to intervene sua sponte and declare a mistrial or issue a curative instruction when
Detective Donald Stepp testified that he noticed Gilispie’s height and build were “very similar to
the individual that was in the video from U.S. Cellular” and that he “felt that we had the correct
individual in custody.” Gillispie conceded that the point was not preserved at trial and the Court
of Appeals reviewed it for plain error. Respondent argues, and the Court agrees, that Ground 1 is
procedurally defaulted. In Clark v. Bertsch, the Eighth Circuit held based on Hayes v. Lockhart
that a “state court’s discretionary plain-error review of [a petitioner’s] unpreserved claims cannot
excuse his procedural default,” resolving an intra-circuit panel split on the issue. 780 F.3d 873,

5

877 (8th Cir. 2015). Therefore, Gillispie’s claim is procedurally defaulted. Gillispie has not
demonstrated adequate cause to excuse the default. Coleman v. Thompson, 501 U.S. 722, 750,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Even if the Court were able to reach the merits of Gillispie’s claim, Gillispie would not
be entitled to relief. “[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Where a
petitioner raises the improper admission of testimony at trial, “[w]e grant habeas relief … only if
the alleged error was so conspicuously bad that it fatally infected the trial and rendered it
fundamentally unfair.” Gee v. Groose, 110 F.3d 1346, 1350 (8th Cir. 1997) (internal quotations
omitted).

“In assessing whether this burden has been met, the following are of particular

importance: the frequency and pervasiveness of the alleged misconduct in the context of the
entire trial; the weight of the evidence supporting guilt; and whether the trial judge gave a
cautionary instruction to the jury.” Id. (internal quotations omitted). “[T]he petitioner must show
that there is a reasonable probability that the error complained of affected the outcome of the
trial-i.e., that absent the alleged impropriety the verdict probably would have been different.”
Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir.1995).
The Court of Appeals found that the admission of Detective Stepp’s testimony as to the
ultimate issue of whether Gillispie was in fact the robber depicted in the video improperly
invaded the province of the jury. (Resp’t Ex. G at 6.) However, the court found that there was no
prejudice to Gillispie because of the “overwhelming evidence” linking Gillispie to the robbery,
including the surveillance video, the two employees’ identification of Gillispie at trial, and the

6

fact that police discovered stolen items in the motel room where Gillispie was arrested. Id. The
Court of Appeals’ conclusion that the error was harmless is entitled to deference and was neither
incorrect nor unreasonable. Gillispie has not shown that there is a reasonable probability that,
but for the improper admission of Detective Stepp’s testimony, the outcome of his trial would
have been different. See Gee, 110 F.3d at 1350 (denying habeas relief for “single, arguably
cumulative statement” connecting petitioner to vehicle used in robberies, noting that while the
trial court failed to give a cautionary instruction, the weight of the other evidence strongly linked
petitioner to the vehicle and supported a finding of guilt). Ground 1 is denied.
B.

Ineffective Assistance of Appellate Counsel (Grounds 2 through 4)

Next, the Court will address Gillispie’s ineffective assistance of counsel claims. “The
Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s
playing a role that is critical to the ability of the adversarial system to produce just results.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “An accused is entitled to be assisted by
an attorney, whether retained or appointed who plays the role necessary to ensure that the trial is
fair.” Id. To succeed in a claim “that counsel’s assistance was so defective as to require reversal
of a conviction,” a petitioner must establish (1) that the trial counsel’s performance fell below an
objective standard of reasonableness and (2) that this deficient performance prejudiced the
Petitioner’s defense. Strickland, 466 U.S. at 687-88. “It is well established that the Sixth
Amendment guarantees the right to effective assistance of counsel on direct appeal.” Cole v.
Dormire, 2011 WL 1258249, at *14 (E.D. Mo. Jan. 20, 2011) (citing Evitts v. Lucey, 469 U.S.
387, 396–97 (1985); Douglas v. California, 372 U.S. 353, 357–58 (1963)). “The proper standard
for evaluating a claim of ineffective assistance of appellate counsel is that set forth in
Strickland.” Id. (citations omitted).

7

The “performance” component of Strickland requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
To satisfy this prong, a petitioner must first identify the specific acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court
must then examine the totality of the circumstances in order to determine whether “the identified
acts or omissions were outside the wide range of professionally competent assistance.” Id. In
making this determination, the court should recognize that counsel is “strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Id. To satisfy the “prejudice” component of Strickland, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. Such “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
It is important to note that “there is no reason for a court deciding an ineffective
assistance claim to approach the [two-pronged] inquiry in [a pre-determined] order or even to
address both components of the inquiry if the defendant makes an insufficient showing on one.”
Strickland, 466 U.S. at 697. It is unnecessary, therefore, to prove that counsel’s performance fell
below an objective standard of reasonableness before determining the presence or absence of
resulting prejudice.
“Taken together, AEDPA and Strickland establish a ‘doubly deferential standard’ of
review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (citing Cullen v. Pinholster, 563
U.S. 170) (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 [appeal], focusing
on whether it is reasonably likely that the result would have been different absent the errors.”

8

Williams, 695 F.3d at 831 (citing Strickland, 466 U.S. at 696)). “To satisfy Strickland, the
likelihood of a different result must be substantial not just conceivable.” Id. Second, under
AEDPA, the Court must give substantial deference to the state court’s predictive judgment. Id.
Therefore, “[s]o long as the state court’s decision was not “contrary to” clearly established
federal 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.” Id. at 831 (citing Harrington, 562 U.S. 86 at 101). This standard
is difficult, and “even a strong case for relief does not mean the state court’s contrary conclusion
was unreasonable.” Harrington, 562 U.S. at 102.
In Grounds 2 through 4, Gillispie reasserts the claims raised in his amended postconviction motion, that appellate counsel was ineffective in failing to appeal (1) the overruling of
Gillispie’s Batson objection, (2) the denial in part of his motion to suppress evidence seized from
the motel room where Gillispie was arrested, and (3) the overruling of Gillispie’s motion in
limine to exclude evidence of his warrants or “wanteds.” The Court will address each claim in
turn.
i.

Batson Objection (Ground 2)

Under Missouri law, a Batson objection consists of three steps:
First, the defendant must raise a Batson challenge with regard to one or more
specific venirepersons struck by the state and identify the cognizable racial group
to which the venireperson or persons belong. The trial court will then require the
state to come forward with reasonably specific and clear race-neutral explanations
for the strike.6 See Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20; State v.
Jackson, 809 S.W.2d 77, 81 (Mo.App.1991). Assuming the prosecutor is able to
articulate an acceptable reason for the strike, the defendant will then need to show
that the state's proffered reasons for the strikes were merely pretextual and that the
strikes were racially motivated. See Antwine, 743 S.W.2d at 64; Jones v. Jones,
938 F.2d at 844.

9

State v. Parker, 836 S.W.2d 930, 939 (Mo. 1992).

Here, trial counsel objected to the

prosecutor’s use of a peremptory strike to strike the only remaining African American member
of the venire panel, Juror No. 18. (Resp’t Ex. B at 74.) In response, the prosecutor stated that he
struck Juror No. 18 because he was concerned that she had not been paying attention and
because she admitted to having pled guilty to a crime. Id. When asked by the trial court whether
she had any prior arrests, charges or convictions, Juror No. 18 disclosed that she had been
arrested for not paying traffic-related fines and had pled guilty to passing a bad check in 2001 or
2002, and that her license was currently suspended. Id. at 66-68. She stated that she had not
heard the question when asked by the prosecutor. Id. at 66.
The trial court felt that Juror No. 18 had been less than forthcoming about her conviction
and suspended license and noted that the prosecutor struck two similarly situated non-African
American male panel members who admitted they had been charged with crimes. Id. at 75-76.
The court found that the state had met its burden of proffering a race-neutral reason for the strike.
Id. Trial counsel then objected on the grounds that Juror No. 18 had been honest and was able to
get to court despite her suspended license. Id. Counsel did not object on the grounds that the
prosecutor’s proffered reasons were pretextual. Appellate counsel did not appeal the trial court’s
overruling of Gillispie’s Batson objection.
Both the post-conviction motion court and the Court of Appeals denied Gillispie’s claim
that appellate counsel was ineffective in failing to appeal the overruling of the Batson objection,
reasoning that Missouri appellate courts have refused to review the argument that a strike was
pretextual when it is raised for the first time on appeal. (Resp’t Ex. M at 5; Resp’t Ex. J at 49.)
The Court of Appeals found that even if the argument had been preserved, Gillispie would not
have prevailed. (Resp’t Ex. M at 6.) “Appellate counsel is expected to winnow the issues on

10

appeal to highlight the most meritorious issues and eliminate the sure losers.” Cole, 2011 WL
1258249, at *14 (citing Jones v. Barnes, 463 U.S. 745, 751–52 (1983); Gee, 110 F.3d at 1352;
Pollard v. Delo, 28 F.3d 887, 889 (8th Cir. 1994)). “An attorney's decision not to raise an
unwinnable issue on appeal is an important strategic decision in competent appellate advocacy,
and does not constitute ineffective assistance of appellate counsel.” McCord v. Norman, 2012
WL 1080925, at *16 (E.D. Mo. Mar. 30, 2012) (citations omitted). Thus, “[i]f an issue an
appellate attorney failed to raise on appeal is not meritorious, then appellate counsel cannot be
considered ineffective for having failed to argue that issue on appeal.” Cole, 2011 WL 1258249,
at *14 (citations omitted). Appellate counsel’s decision not to appeal an unpreserved claim that
the Court of Appeals determined would have failed even if it had been preserved does not
constitute ineffective assistance of counsel. The decision of the state courts on this issue is
entitled to deference and was neither incorrect nor unreasonable. Ground 2 is denied.
ii.

Motion to Suppress (Ground 3)

Gillispie filed a motion to suppress evidence seized from the motel room where he was
arrested, arguing that the warrantless search and seizure were unlawful. (Resp’t Ex. E at 11-12.)
Under the plain view doctrine, when an officer is “lawfully located in a place from which the
object can be plainly seen” and “its incriminating character [is] ‘immediately apparent,’” law
enforcement may lawfully seize the object without a warrant. Horton v. California, 496 U.S.
128, 136–37, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112 (1990) (quoting Coolidge v. New
Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 2038, 29 L. Ed. 2d 564 (1971)). There was no
dispute that law enforcement had a right to enter the motel room to arrest Gillispie on
outstanding warrants from other jurisdictions. (Resp’t Ex. E at 14.) Testimony at the suppression
hearing established that Gillispie was a suspect in a rash of robberies of cellular phone stores in

11

St. Louis County, had warrants out for his arrest, was wanted for a robbery involving a shooting
at a Florissant convenience store, and had a felony warrant for child support. (Resp’t Ex. A at 2,
4-5, 11-12.)
Gillispie argued that, with the exception of marijuana seized from the motel room, the
other items were not apparently incriminating and therefore the plain view doctrine did not
apply. (Resp’t Ex. E at 14.) At the suppression hearing, Detective Stepp testified that he had
viewed the surveillance video and was aware that the suspect had left with an orange AT&T bag
full of cell phones and Bluetooths, along with some U.S. currency. (Resp’t Ex. A at 6.) He
testified that when he entered the motel room, he could see the entire room except the toilet area
of the bathroom and that he recognized the AT&T bag, saw some phones in it, saw a wad of
currency on the nightstand, and recognized the suspect’s clothing, including a Fila jacket. Id. at
8-10, 19, 22-23.
The crime scene technician who processed the seized evidence, Officer Robert O’Neal,
confirmed that the AT&T bag, currency, and Fila jacket were in plain view, and testified that the
cell phones could be seen through the AT&T bag and that he discovered additional currency
inside the Fila jacket. Id. at 28-35. Officer O’Neal further testified as to various electronics and
personal items in plain view. Id. He described a black and white paper bag with the words “Man
of Fashion” on it that contained three cell phones, a pair of boots, and the ID, social security
card, and birth certificate of a Mr. Henderson, as well as a separate bag that contained seventeen
pairs of white socks. Id. Finally, Officer O’Neal testified that a pellet gun and air cartridge were
found under a mattress in the motel room. Id. at 34. The trial court suppressed the weapon and
ammunition, but denied Gillispie’s motion in all other respects. (Resp’t Ex. E at 21.)

12

At trial, when the state introduced evidence seized from the motel room and photos of the
evidence, trial counsel affirmatively stated that she had no objection. (Resp’t Ex. B at 175-80;
Resp’t Ex. C at 219-45.) Appellate counsel did not appeal the trial court’s denial in part of
Gillispie’s motion to suppress.
Both the post-conviction motion court and the Court of Appeals denied Gillispie’s claim
that appellate counsel was ineffective in failing to appeal the denial in part of his motion to
suppress, finding that the evidence was lawfully seized because it was in plain view of law
enforcement. (Resp’t Ex. M at 7-8; Resp’t Ex. J at 49-50.) The Court of Appeals further found
that the claim was effectively waived because trial counsel announced no objection to admission
of the evidence at trial. (Resp’t Ex. M at 7.)
This Court disagrees with the conclusion that, with the exception of the weapon and
ammunition, all of the evidence was in plain view. There was no evidence presented at the
suppression hearing to suggest that the Man of Fashion bag or the bag containing the socks were
apparently incriminating. In addition, while the bags themselves were in plain view, there was
no evidence presented that their contents were in plain view. Indeed, the evidence presented at
trial established that the ID, social security card, and birth certificate for a Mr. Henderson in the
Man of Fashion bag were found at the bottom of the bag and that law enforcement had to open
the bag containing the socks in order to retrieve its contents. (Resp’t Ex. C at 233, 240.)
Nevertheless, the issue before this Court is not whether the evidence should have been
suppressed, but whether appellate counsel was ineffective in failing to appeal the denial in part of
Gillispie’s motion to suppress and, more precisely, whether the decision of the state courts in that
regard was incorrect or unreasonable. The Court of Appeals found that the point “merit[ed] little
discussion” given that trial counsel announced no objection to admission of the evidence at trial

13

and “[a] defendant may not take advantage of self-invited error.” (Resp’t Ex. M at 7.) This Court
notes that counsel specifically announced no objection to the admission of photos of the contents
of the Man of Fashion bag and the bag containing the socks. (Resp’t Ex. C at 233-40.)
Therefore, as the Court of Appeals held, the claim was waived. As set forth above, appellate
counsel is not required to raise non-meritorious claims. The decision of the state courts on this
issue is entitled to deference and was neither incorrect nor unreasonable. Ground 3 is denied.
iii.

Motion in Limine to Exclude Warrants or Wanteds (Ground 4)

Gillispie filed a motion in limine to exclude evidence of warrants or “wanteds” for other
crimes and/or jurisdictions as prior bad act evidence. (Resp’t Ex. E at 22.) The trial court
overruled the motion on the grounds that the state could introduce such evidence to provide a
narrative about the circumstances of Gillispie’s arrest. (Resp’t Ex. B at 2.) The prosecutor stated
that he would “obviously” “stay away from what they are for.” Id. At trial, Detective Stepp
testified that Gillispie was arrested because “[h]e had felony warrants and wanteds.” Id. at 173.
Trial counsel did not object to the testimony. Id. There was no mention at trial of the basis for
the warrants and wanteds. Appellate counsel did not appeal the overruling of Gillispie’s motion
in limine.
Both the post-conviction motion court and the Court of Appeals denied Gillispie’s claim
that appellate counsel was ineffective in failing to appeal the overruling of his motion in limine.
(Resp’t Ex. M at 9-11; Resp’t Ex. J at 51.) The post-conviction motion court found that
admission of the testimony was proper in accordance with State v. Campbell, 147 S.W.3d 195,
206 (Mo. Ct. App. 2004) and State v. Sanders, 761 S.W.2d 191, 192 (Mo. Ct. App. 1988).
(Resp’t Ex. J at 51.) The Court of Appeals found that, because trial counsel did not object to the
testimony, the claim was not preserved and would therefore have been subject to discretionary

14

plain error review. (Resp’t Ex. M at 9.) The court further found that it would have declined to
exercise such review because it agreed with the post-conviction motion court that the testimony
was admissible under Campbell and Sanders. Id. at 10-11. As set forth above, appellate counsel
is not required to raise non-meritorious claims. Appellate counsel’s decision not to appeal an
unpreserved claim that the Court of Appeals determined it would have declined to review does
not constitute ineffective assistance of counsel. The decision of the state courts on this issue is
entitled to deference and was neither incorrect nor unreasonable. Ground 4 is denied.
IV.

Conclusion
Based on the foregoing, the Court finds that Gillispie’s request for relief pursuant to 28

U.S.C. § 2254 should be denied. Further, because Gillispie has made no showing of denial of a
constitutional right, the Court will not issue a certificate of appealability. See 28 U.S.C.
§ 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED the Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is DENIED. [Doc. 1.]
IT IS FURTHER ORDERED that a separate judgment will be entered this same date.
IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Artoska
Gillispie for a Certificate of Appealability will be DENIED.
Dated this 29th day of March, 2017.

/s/ Nannette A. Baker_________
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

15