Williams v. Bowersox

Filing 15

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Judgment will be entered forthwith. Signed by Magistrate Judge Noelle C. Collins on June 20, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTHONY SCOTT WILLIAMS,
Petitioner,
v.
MICHAEL BOWERSOX,
Respondent.

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Case No. 4:14-CV-664 NCC

MEMORANDUM AND ORDER
This matter is before the Court on the petition of Anthony Williams for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). After reviewing the case file, the
Court finds that Petitioner is not entitled to relief. Therefore, the petition is denied.
Background
Petitioner was charged, by way of Information in Lieu of Indictment, with one count of
attempted robbery in the first degree, one count of murder in the second degree, and two counts
of armed criminal action. Resp’t Ex. B, 20-21. After a jury trial, the trial court sentenced
Petitioner to an aggregate term of thirty years’ imprisonment. Id. at 67-71.
The facts of this case, as set forth by the Missouri Court of Appeals, are as follows:
On or about March 22, 2010, Earl Bush (Victim) and Ebonyi Blakely (Witness)
went to the Nico Terrance Apartments in St. Louis County. As they were leaving
the complex, [Williams] told them that “Sed” wanted him to stop Victim. Victim
parked the car and waited for [Williams] to get Sed.
When [Williams] came back outside and told Victim that Sed would be out in a
minute, Victim said he could not wait, and gave [Williams] his phone number. As
Victim began to pull away, [Williams] pulled out a gun and said, “give it up” or
“give me what you got.” When Victim continued to drive away, [Williams] shot
and killed Victim.

After following “rumors, suspects, and innuendos”, the lead investigator of
Victim’s homicide, Detective Bob Vogel (Detective Vogel), developed two
lineups to show Witness. After Witness identified [Williams] from the second
lineup, Detective Vogel arrested and interrogated [Williams]. Although
[Williams] initially denied being at the apartment complex the night of the
murder, he eventually admitted that he shot Victim. [Williams] explained that
because Victim had robbed him at gunpoint earlier in the evening, he shot Victim
while trying to get his money back. When left alone in the interview room, the
police recorded [Williams] saying to himself, “I can’t believe I did that. I fucked
my whole life up” and he couldn’t believe his friend “snitched” on him. When
Detective Vogel returned to the room, however, [Williams] said he had lied
earlier, and that he did not shoot Victim.
At trial, [Williams] testified in his own defense that he did not shoot Victim, and
that he was not present during the alleged shooting. During the State’s closing
arguments, the prosecutor told the jury:
Now, the investigation led to [Williams]. Detective Vogel didn’t
just pull his name out of a hat. They had his name before [Witness]
ever identified him. That’s why they knew who to show her.
After defense counsel objected claiming that the prosecutor misstated the
evidence, the trial court told the jury to “ignore the last statement.” Afterwards,
the prosecutor continued:
They got [Williams’s] name before [Witness] ever identified him.
That’s how [Detective Vogel] knew what pictures to show her,
what picture to put in the lineup to show her. They had his name.
Defense counsel did not object to this statement.
Following the close of all evidence and arguments by both sides, the jury found
[Williams] guilty of one count of attempted robbery in the first degree, one count
of murder in the second degree, and two counts of armed criminal action.
Resp’t Ex. E, 2-4.
On direct appeal, Petitioner argued that the trial court plainly erred in failing to sua
sponte declare a mistrial during the prosecutor’s closing argument because the prosecutor made
improper statements. Resp’t Ex. C, 9. Specifically, Petitioner argued that the prosecutor’s
statement, “They got [Williams’s] name before [Witness] ever identified him. That’s how
[Detective Vogel] knew what pictures to show her, what picture to put in the lineup to show her.

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They had his name,” injected matters improper for consideration into the minds of the jurors and
inflamed their passions and prejudices. Id.
The Missouri Court of Appeals reviewed Petitioner’s claim for plain error because he
failed to preserve it for appeal. Id. The court affirmed, finding that the prosecutor’s remarks
were supported by the evidence. Id. at 10-11. The court also found that the remarks did not
prejudice Petitioner because the evidence of guilt was overwhelming. Id. at 11. The judgment
was entered on April 9, 2013, and the mandate issued on May 1, 2013. Id. at 1, 4-5.
On November 12, 2013, Petitioner filed a Rule 29.15 motion for postconviction relief.
Williams v. Missouri, No. 13SL-CC04045 (St. Louis County). The government moved to
dismiss the motion as untimely, and on May 2, 2014, the court granted the government’s motion
and dismissed the case. Id.; Resp’t Ex. F, 1-2. Petitioner did not appeal.
Grounds for Relief
Petitioner argues that (1) the trial court plainly erred in failing to sua sponte declare a
mistrial during the prosecutor’s closing argument after the prosecutor made the contested
remark; (2) the police did not follow up on evidence that pointed away from him; (3) Blakely’s
testimony was inconsistent and she committed perjury during trial; and (4) the court did not
contact witnesses on his behalf or look into his alibi.
Respondent argues that the claims are both procedurally defaulted and meritless.
Procedural Default
To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly
presented the substance of the claim to the state courts, thereby affording the state courts a fair
opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v.
Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been

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fairly presented when a petitioner has properly raised the same factual grounds and legal theories
in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that
have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted
may not give rise to federal habeas relief unless the petitioner can demonstrate cause and
prejudice for the default. Id. “[T]he existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986).
A federal habeas court “cannot reach an otherwise unpreserved and procedurally
defaulted claim merely because a reviewing state court analyzed that claim for plain error.”
Clark v. Bertsch, 780 F.3d 873, 874 (8th Cir. 2015) (applying the rule set out in Hayes v.
Lockhart, 766 F.2d 1247 (8th Cir. 1985)).
Because Petitioner failed to preserve Ground One of the petition for appeal, it is
procedurally barred. Petitioner has not alleged cause and prejudice for the default. As a result,
Petitioner is not entitled to relief on this Ground.
Petitioner says that he raised Grounds Two, Three, and Four in his Rule 29.15 motion.
The motion is not included in the exhibits, so the Court will assume that he is correct. However,
these grounds are procedurally barred because Petitioner did not file an appeal from the denial of
his motion. See Lowe-Bey v. Groose, 28 F.3d 816, 818 (8th Cir. 1994). Petitioner has not shown
cause and prejudice of the default. Accordingly, he is not entitled to habeas relief, and the
petition must be denied.
Regardless of the default, the Court will address the merits of the petition.

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Merits Standard
In the habeas setting, a federal court is bound by the AEDPA to exercise only limited and
deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th
Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner unless the
state court’s adjudication of a claim “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 “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 state court decision is contrary to clearly established Supreme Court precedent if “the
state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or .
. . decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). 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.” Id. at 407-08. Finally, a
state court decision involves an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings 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); Ryan v.
Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
Merits Analysis
1.

Ground One

Petitioner argues that the trial court plainly erred in failing to sua sponte declare a
mistrial during the prosecutor’s closing argument after the prosecutor made the “They got
[Williams’s] name before [Witness] ever identified him” remark. Respondent contends that the

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decision of the Missouri Court of Appeals was not contrary to federal law and that the claim is
meritless.
A federal habeas court narrowly reviews alleged due process violations stemming from a
state court conviction. Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). A petitioner must
show “that the alleged improprieties were so egregious that they fatally infected the proceedings
and rendered his entire trial fundamentally unfair. To carry that burden, the 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) (quotation omitted).
In this case, Petitioner did not object to the prosecutor’s statement. As stated above, the
trial court granted Petitioner’s objection to the first iteration of the statement and ordered the jury
to disregard it. In finding no plain error, the Missouri Court of Appeals stated,
“Plain error will seldom be found in unobjected-to closing argument.” State v.
Thompson, 390 S.W.3d 171, 174 (Mo. App. E.D. 2012). “[C]ourts hesitate to find
plain error in a failure to sua sponte correct a statement made during closing
arguments because trial strategy looms as an important consideration in deciding
whether to object during closing argument.” [State v. Cannady, 389 S.W.3d 306,
310 (Mo. Ct. App. 2013)]. In closing argument, the State has wide latitude in
making reasonable inferences from the evidence presented at trial. Id. Further,
closing arguments must be interpreted with consideration to the entire record
rather than in isolation. State v. Vanlue, 216 S.W.3d 729, 734 (Mo. App. S.D.
2007).
In this case, the evidence supported the reasonable inference that Detective Vogel
had developed Defendant’s name as a suspect prior to showing Witness the photo
lineup. Detective Vogel testified that during the course of his investigation, he
developed a suspect and put the suspect in a photo lineup to show Witness. In
generating the photo lineup in which Witness identified Defendant, Detective
Vogel explained that he put a suspect’s name into a computer program, which
generated other arrest photographs of individuals with physical features similar to
the suspect. From that photo lineup, Witness identified Defendant as the
individual who shot Victim. Furthermore, Detective Vogel testified that he
indicated to Defendant “some witnesses, some of which who were very close to
[Defendant,] that told me that they saw [Defendant at the scene of the crime.]”
The testimony at trial supports the reasonable inference that Detective Vogel
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independently developed Defendant as a suspect during the course of his
investigation and used Defendant’s name in generating the photo lineup. During
closing statements, therefore, the State had a right to argue that Detective Vogel
developed Defendant as a suspect prior to showing Witness the photo lineup. See
Thompson, 390 S.W.3d at 176.
Furthermore, even if the State’s argument was improper, the trial court did not err
by not declaring a mistrial sua sponte. First, the jury was instructed to ignore the
statement. See Vanlue, 216 S.W.3d at 735 (explaining that “jurors are presumed to
follow the court’s instructions.”). Second, the State’s remarks did not prejudice
the Defendant. Alleged errors in closing arguments do not justify relief under the
plain error rule unless they are found to have a decisive effect on the jury. State v.
Parker, 856 S.W.2d 331, 333 (Mo. banc 1993). For such a decisive effect to
occur, there must be a reasonable probability that, in the absence of the State’s
alleged improper comments, the verdict would have been different. Thompson,
390 S.W.3d at 176. Defendant has the burden of demonstrating that the alleged
errors resulted in a manifest injustice to him. Id.
Here, Defendant was not prejudiced by the statement at closing argument because
of the overwhelming evidence of Defendant’s guilt. The evidence presented at
trial shows that Witness, who was in the car with Victim during the shooting,
identified Defendant, in both a photo lineup and at trial, as the individual who
shot Victim. Detective Vogel testified that Defendant initially admitted to
shooting the victim, and only later explained that his confession was a lie.
Furthermore, during Defendant’s interrogation, Defendant was recorded saying to
himself, “I can’t believe I did that. I fucked my whole life up.” In light of the
evidence presented, Defendant has failed to demonstrate that the State’s remark in
closing arguments that Detective Vogel had Defendant’s name prior to showing
Witness the photo lineup, had a decisive effect on the verdict. See Parker, 856
S.W.2d at 333.
Resp’t Ex. C at 9-11.
The appellate court articulated the correct standard for analyzing due process claims. It’s
decision is well-reasoned and is consistent with the evidence produced at trial. Petitioner was
not prejudiced by the remark, in that the jury could have convicted him irrespective of the
statement. The other evidence presented to the jury, such as Ebonyi Blakely’s in-court
identification of him and his confession, was sufficient for any reasonable juror to find him
guilty. As a result, the Court finds that the state court’s decision is not contrary to, or an
unreasonable application of, clearly established federal law. Ground One fails on the merits.

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2.

Ground Two

In Ground Two, Petitioner argues that the police did not follow up on evidence that
pointed away from him. Respondent maintains that this ground is noncognizable.
Respondent is correct. Petitioner has failed to allege facts, which if proved, would entitle
him to habeas relief. He has not alleged that the evidence gathered by the police officers was
insufficient to support the conviction. Nor has he alleged that the officers acted in an
unconstitutional manner, such as planting evidence. And he has not alleged that the prosecutor
withheld exculpatory evidence. This claim fails to allege a constitutional violation, and
therefore, is noncognizable in these proceedings. See Gee v. Groose, 110 F.3d 1346, 1351-52
(8th Cir. 1997).
3.

Ground Three

In Ground Three, Petitioner argues that Ebonyi Blakely’s testimony was inconsistent and
she committed perjury during trial. He says she first testified she could not see what happened
during the shooting because it was too dark. He also claims the photo lineup was unduly
suggestive because the detectives identified him as the shooter. Respondent contends that
inconsistent statements by a witness are matters for cross-examination and jury deliberation.
Respondent has not, however, responded to Petitioner’s claim that the lineup was suggestive.
This Court is “not permitted to conduct [its] own inquiry into witness credibility; that is a
task reserved to the jury.” Robinson v. LaFleur, 225 F.3d 950, 954 (8th Cir. 2000). Therefore,
whether Blakely committed perjury is not a cognizable claim for relief.
With regard to the lineup, Petitioner filed a pretrial motion to suppress identification,
arguing that the lineup was unduly suggestive. Resp’t Ex. B, 11-12. The court held a hearing on
the motion just before trial. Resp’t Ex. A, 190-201. During the hearing, Detective Vogel

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testified that he showed Blakely two photo lineups. Id. at 195. Both lineups contained
Petitioner’s image and five other randomly generated individuals with similar characteristics,
like age, ethnicity, and hairstyle. Id. at 196. Blakely was unable to identify Petitioner in the first
lineup, but she identified him in the second one about ten days later. Id. at 192-96. Both lineups
were printed on a single sheet of paper, containing the six photographs. Id. at 197-98. After
eliciting testimony from Vogel about the lineup procedures, defense counsel argued “that the
procedure used [was] inherently suggestive and [violated Petitioner’s] constitutional rights . . .”
Id. at 201. She did not elaborate on the argument. The court denied the motion without
discussion. Id.
During cross-examination, defense counsel attempted to impeach Blakely’s identification
of Petitioner by eliciting testimony that the apartment complex where the shooting took place
was crime-ridden, that she did not feel safe sitting in the car, that the parking lot where the crime
occurred was not well lit, and that she may not have gotten a good look at him because she did
not get out of the car and was not paying attention to her surroundings. Id. at 262, 264-71.
Counsel also questioned her about the lineup procedures. Id. at 272-74.
In closing argument, counsel again highlighted the factors stated above. Id. at 428-30.
With regard to the lineup, counsel said,
Now the next thing I want to talk about is the lineup that she was shown where
she identified [Petitioner]. I want to talk about the procedure, because a lot of the
questions that I was asking of the detective and also of [Blakely] if when she
viewed the lineup she looked at all six pictures at one time. It is human nature
that when you look at photographs side by side, one another you make
comparisons to other pictures and pick out the one that you think is closest
resembling the person.
The other problem with this lineup as she looked at is if you look at No. 1 and 3,
they look like the same person with their hair pulled back. If they’re the same
person, that cuts down two pictures. She has four people [sic] to pick from.
That’s a 25 percent chance [sic] of Anthony getting picked out of this photo
lineup.
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The procedure that was used should have been one photo right after another for
her to make a clear identification of the person that she saw. Because of the
procedure used and the faultiness of this identification, it is unreliable; and,
therefore, that should be reasonable doubt that she picked my client out as the
person in there. You should give him the benefit of that doubt and find him not
guilty.
Id. at 429-30.
The Supreme Court has recognized that there is “a due process check on the admission of
eyewitness identification, applicable when the police have arranged suggestive circumstances
leading the witness to identify a particular person as the perpetrator of a crime.” Perry v. New
Hampshire, 132 S.Ct. 716, 720 (2012).
As stated above, Petitioner did not present this claim to the Missouri Court of Appeals.
He did not file a reply in this case, and the petition contains only a conclusory statement about
the suggestibility of the lineup. As a result, merits review of this issue is difficult. The Court
assumes that if this issue had been presented to the Missouri Court of Appeals, the court would
have used the correct standard and denied it. Therefore, the only issue is whether denial of this
claim would have been contrary to, or an unreasonable application of, clearly established federal
law as established by the Supreme Court.
The Court has not found any Supreme Court cases holding that a photo lineup must be
individual photographs presented one at a time to the witness to satisfy the defendant’s due
process rights. Additionally, Blakely testified that when she viewed the lineup, the police told
her that the suspect may not be on it. Resp’t Ex. A, 257. Therefore, if the state court had denied
this claim, its decision would not be contrary, or an unreasonable application of, clearly
established federal law. Ground Three is without merit.

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4.

Ground Four

In Ground Four, Petitioner argues that the court erred because it did not contact witnesses
on his behalf or look into his alibi. This claim is not cognizable because courts do not function
as investigative agencies. This claim is meritless.
Conclusion
For these reasons, Petitioner is not entitled to federal habeas relief. Furthermore,
Petitioner has failed to make a substantial showing of the denial of a constitutional right, which
requires a demonstration “that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right.” Khaimov v. Crist, 297 F.3d 783, 785 (8th
Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of appealability. 28
U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus is
DENIED, and this action is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
Judgment will be entered forthwith.
Dated this 20th day of June, 2017.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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