Ford v. Prudden

Filing 19

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc. No. 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
HUBERT FORD,
Petitioner,
vs.
DOUG PRUDDEN,

Respondent.

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) Case No: 4:14CV487 HEA
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OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. #1] on March 17, 2014. On May 31, 2014 Respondent filed his
Response to the Court’s Order to Show Cause Why Relief Should Not be Granted
[Doc. #11]. On July 15, 2014 Petitioner filed his Reply to Response to the Court’s
Order to Show Cause Why Relief Should Not be Granted. 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, as will be discussed in
further detail. For the reasons explained below, the Response to the Order to Show
Cause Why Relief Should not be Granted is well taken and the petition will be
denied.

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Procedural Background
On November 4, 2005, Petitioner was convicted of trafficking second degree
as a prior and persistent drug offender. The Circuit Court in the City of St. Louis,
on February 6, 2006, sentenced Petitioner to 15 years imprisonment in the
Missouri Department of Corrections. The Missouri Court of Appeals, Eastern
District of Missouri, affirmed his conviction. The Petitioner is currently within the
custody of the Missouri Department of Corrections under the previously referenced
sentence.
Petitioner filed his pro se motion for post-conviction relief, pursuant to Rule
29.15, relative to the case on February 26, 2008. On October 3, 2012, the Missouri
state trial court denied the post-conviction relief motion of Petitioner. Petitioner,
on June 26, 2013, filed a timely notice of appeal to the Missouri Court of Appeals.
The Missouri Court of Appeals affirmed the trial court ruling on the Rule 29.15
motion November 26, 2013.
Petitioner filed this Petition for Writ of Habeas Corpus against Respondent
on March 17, 2014. In Ground One, Petitioner claims the trial court denied both
the motion for judgment of acquittal and motion to suppress. Petitioner contends
the arresting officer did not have reasonable suspicion to stop petitioner’s car.
Petitioner also contends that his counsel was ineffective because these grounds
were not raised.
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In Ground Two, Petitioner claims counsel was ineffective for not
challenging the sufficiency of the evidence and for failing to call a witness.
In Ground Three Petitioner alleges the trial court committed error for
convicting Petitioner based on an improper information or indictment wherein the
state failed to plead the element of knowledge which he contends renders invalid
195.223 RSMo.
In Ground Four, Petitioner contends counsel was ineffective for failing to
raise the knowledge requirement of the information or indictment.
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

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(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:
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).

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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
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
In order to preserve issues for federal habeas review, a state prisoner must
fairly present his or her claims to state courts during direct appeal or during postconviction proceedings. Sweet v. Delo, 125 F.3d 144, 149 (8th Cir. 1996). Federal
habeas review of a claim is barred where a prisoner has defaulted his federal
claims in a state court under an independent and adequate state procedural rule.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Failing to raise claims on appeal
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is such a state procedural rule. Coleman, 501 U.S. at 750. State procedural rules are
adequate and independent state grounds when they are firmly established and
regularly followed. Oxford v. Delo, 59 F.3d 741, 746 (8th Cir. 1995) (internal
citations omitted).
Discussion
Petitioner presents four claims for relief in his petition. On direct appeal,
Petitioner raised one claim: that the trial court committed error by denying the
motion to suppress and the motion for judgment of acquittal because the arresting
officer did not have probable cause to stop his vehicle. On appeal of Petitioner’s
post-conviction motion, he raised one issue: that trial counsel was ineffective for
failing to call a witness. These two issues are raised herein and will therefore be
address. Plaintiff’s other claims have been procedurally defaulted, and therefore
cannot serve as a basis for relief.
The Missouri Appellate Court ruled that Petitioner did not object to the
evidence at trial that he sought to have suppressed, i.e. that the stop and subsequent
search were unlawful. In its plain error review, the Appellate Court of Missouri
found no manifest injustice or miscarriage of justice because the officer’s actions
were objectively authorized and legally permitted. The officer testified that he only
saw one operating rear brake light on the right side of the vehicle which was

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stopped. He believed Petitioner had violated the law, and therefore, the Appellate
Court did not disturb the credibility finding of the trial court.
In order to be successful in his challenge, Petitioner must demonstrate the
Missouri Court of Appeals’ ruling is “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.” 28 U.S.C. § 2254(d)(1) and (2),
delineated by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000).
Under Federal law, “where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428
U.S. 465, 494 (1976). Since the Appellate Court considered Petitioner’s argument
regarding this claim, he is not entitled to habeas relief on this ground.
Respondent is correct in arguing that Petitioner’s complaint asserting that
the post-conviction court erred by not following Missouri Supreme Court Rule
29.15 is without merit. These types of complaints are not cognizable in a federal
habeas corpus petition. McDonald v. Bowersox, 101 F.3d 588, 592 (8th Cir. 1996).
The Petitioner raised his ineffective assistance of counsel claim that counsel
was not effective because he did not call a witness at trial. This very issue was
raised by Petitioner on appeal from the denial of his Rule 29.15 motion. In
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considering this very issue the Missouri Court of Appeals denied the point. In
doing so the Missouri appellate properly noted, interpreted, and applied Strickland
v. Washington, 466 U.S. 668, 686 (1984). The Appeals Court discussed this issue
in its opinion:
To prevail on a claim for ineffective assistance of counsel for failing
to call a witness, a movant must show that: (1) trial counsel knew or should
have known of the existence of the witness; (2) the witness could be located
through reasonable investigation; (3) the witness would testify; and (4) the
witness’s testimony would have produced a viable defense. Williams v.
State, 168 S.W.3d 433, 441 (Mo. banc 2005). The decisions to call a witness
and to present evidence are matters of trial strategy, and are “virtually
unchallengeable” in an ineffective-assistance claim. Id. at 443.
We agree with the motion court that Movant failed to meet William’s
fourth element: that the witness’s testimony would have produced a viable
defense. “At a post-conviction relief evidentiary hearing, the motion court
determines the credibility of the witnesses and is free to believe or disbelieve
the testimony of any witness.” Briscoe v. State, 334 S.W.3d 183, 188 (Mo.
App. E.D. 2011). Here, the motion court specifically found Jackson’s
testimony not credible, and we defer to the motion court’s greater ability to
judge the credibility of witnesses. Bradley, 292 S.W.3d at 566. Movant does
not provide any reason why we should disregard our deferential standard. In
light of the motion court’s credibility findings, we similarly conclude
Movant failed to show that Jackson’s testimony would have provided him
with a viable defense. Thus, his allegations are insufficient to support a
claim for ineffective assistance of counsel. The motion court did not err in
denying his motion on this ground.
Resp. Ex. I, 4–5. This analysis was not contrary to, nor an unreasonable
application of, clearly established federal law, as it complies with the
Strickland standard. The Court of Appeals’ decision is reasonable and entitled
to deference under §2254(d). Petitioner has failed to allege or show in what way
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the Court of Appeals decision is “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.” 28 U.S.C. § 2254(d)(1) and (2), as defined by
the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000).
Conclusion
Of the claims that are not procedurally defaulted, the state courts’ rulings
were neither contrary to, nor unreasonable applications of, clearly established
federal law. Thus, Petitioner is not entitled to any relief.
Certificate of Appealability
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. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). “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
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petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
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. No. 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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