Atkins v. Denney
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the petition of Marquise Atkins for a writ of habeas corpus relief is DENIED. ECF No. 1 . IT IS FURTHER ORDERED that a certificate of appealability shall not be issued. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 8/8/2017. (NEB)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
Case No. 4:14-cv-00727-AGF
MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Marquise Atkins for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. Petitioner was
charged with murder in the first degree, robbery in the first degree, and two associated
counts of armed criminal action. Following a trial held in December 2009, the jury
found Petitioner guilty of robbery in the first degree, both counts of armed criminal
action, and the lesser-included offense of (felony) murder in the second degree.
Petitioner was sentenced to an aggregate of 70 years of imprisonment.1
For federal habeas relief, Petitioner raises the following claims: (1) the trial court
erred in denying Petitioner’s motion to suppress identification evidence; (2) the motion
court erred in denying Petitioner’s motion for post-conviction relief for ineffective
assistance of defense counsel; (3) the trial court erred in denying Petitioner’s motion in
Petitioner was specifically sentenced to 30 years each for the murder conviction
and the robbery conviction, and 35 years for each count of armed criminal action. The
murder and robbery convictions were to be served concurrently with their associated
armed criminal action counts, but consecutive with respect to each other.
limine to prevent the State from introducing evidence that Petitioner told his girlfriend,
Alysha Gregory, that he shot the victim; and (4) the trial court erred in failing to instruct
the jury on involuntary manslaughter. For the reasons set forth below, habeas relief will
The State’s evidence established the following. On the evening of June 22, 2008,
cousins Terrence Mims (“T. Mims”), Trevon McCray, Justin Mims (“J. Mims”), Barry
Willis, and Richard Pittman,2 were playing basketball together at a neighborhood park.
While leaving the park, they noticed a group of men, including Petitioner, following
them. After catching up with the group of cousins, one of the men robbed T. Mims of a
gold chain. One of the men also punched T. Mims, although it is unclear whether this
was the same person who stole the gold chain. When T. Mims attempted to run away, he
was shot in the head and died as a result.
Police arrived on the scene shortly after the shooting. T. Mims was transported to
the hospital, and the police detained the witnesses3 for the homicide detectives. The
witnesses gave descriptions of the assailants, and the direction in which they ran after the
shooting. Based on the descriptions, Detective Kevin Bentley believed that the assailants
All but T. Mims, at the time, were minors.
It is unclear from the initial police report, Resp’t Ex. H, at 40, whether these witnesses
were the cousins or others.
were members of a gang that included Petitioner. Detective Bentley believed that the
descriptions by the witnesses of one of the assailants closely matched Petitioner, based on
Detective Bentley’s recollection of a prior police-related contact with Petitioner. Within
hours, the police created a photographic line-up, including a photograph of Petitioner and
five other headshots of men with similar height, weight, and hairstyle as Petitioner.
On the same day as the shooting, the police showed the line-up to McCray, Willis,
and Pittman, who witnessed the murder, and took their statements. McCray reported that
one of the men punched the victim, and another man shot the victim. McCray then
identified Petitioner as the person who punched the victim. Willis stated that he ran from
the scene after the victim was punched, and was unable to identify Petitioner as having
any involvement. Pittman identified Petitioner as the person who both robbed and shot
The following day, June 23, 2008, the police initiated a search for Petitioner. The
police found Petitioner at 5752 Lillian Avenue, and after gaining consent from the
resident’s owner, they conducted a search of the property. During the search, the officers
encountered Petitioner’s mother and his girlfriend, Gregory, who both agreed to be
interviewed at police headquarters. During Gregory’s interview, she told Detective
Wallace Leopold that she did not know anything about the incident.
Later on June 23, 2008, Petitioner was taken into custody and placed in a physical
line up with four other prisoners who were similar in appearance to Petitioner. McCray,
J. Mims, Willis, and Pittman were brought in separately for viewing. According to the
police reports, McCray was a “100% positive” that Petitioner was the person who
punched the victim; J. Mims was a “100% positive” that Petitioner was present during the
crime, but J. Mims did not identify what action Petitioner had taken; Willis did not
identify Petitioner; and Pittman was a “100% positive” that Petitioner had shot the victim.
Resp’t Ex. H at 45. Petitioner was subsequently placed under arrest.
On the evening of June 24, 2008, Gregory returned to police headquarters on her
own and asked to speak with homicide detectives. Gregory reported to Detective
Leopold that at some point between the night of June 22 and morning of June 23,
Petitioner told her that one of Petitioner’s associates had robbed a male victim of a gold
neck chain, punched the victim, and gave Petitioner a gun to shoot the victim. Gregory
reported that Petitioner told her that he had been forced to shoot the victim, and if he had
not, he could have been shot himself. Gregory also reported that Petitioner told her that
he aimed for the victim’s legs, in order to avoid hurting the victim. When Detective
Leopold asked Gregory why she had not provided this information during her first
interview with the police, Gregory stated that she was afraid at the time, but had since
realized that she needed to do the right thing for the victim.
In preparation for trial, defense counsel deposed McCray and J. Mims and
questioned them about their identification of Petitioner in the police line-ups. During
McCray’s deposition, McCray stated that he remembered identifying Petitioner as the
shooter and the robber. During J. Mims’s deposition, J. Mims stated that he remembered
identifying Petitioner as the shooter with certainty, at the physical line-up.
Defense counsel filed a motion to suppress any in-court identification and
testimony about any out-of-court identifications of Petitioner by the State’s witnesses.
The motion asserted that the identification evidence would violate Petitioner’s
constitutional rights for the following reasons: (1) any identification would be the product
of an unlawful arrest; (2) the circumstances of any out-of-court identification were
inherently suggestive and conducive to mistaken identity; (3) any in-court identification
of Petitioner would be tainted by impermissible and suggestive procedures; and (4) there
was no adequate independent basis for in-court identifications of Petitioner.
At a pre-trial conference on the motion, held prior to voir dire, defense counsel
explained that when she prepared the written motion, she believed that the photographic
line-up was tainted because, after reviewing a black-and-white copy of the photographic
line-up, she perceived one of the headshots to be female. However, upon receiving the
photo spread in color from the State, defense counsel acknowledged that the headshot in
question appeared male, but she could not be certain without names of the participants.
Defense counsel subsequently requested that the court take the motion along with the
case. The trial court agreed and instructed defense counsel that she should approach the
bench at the appropriate time to renew her motion.
At the same pre-trial conference, defense counsel moved in limine to prohibit
Detective Leopold from testifying about statements that Petitioner’s girlfriend, Gregory,
reported hearing from Petitioner. Defense counsel argued that such testimony by
Leopold would constitute double hearsay. The State responded that it did not intend to
elicit such testimony from Detective Leopold. The State explained that it would be
calling Gregory as a State’s witness to testify first-hand about what she reported hearing
from Petitioner, and would only call Detective Leopold if Gregory denied reporting such
statements. The trial court ruled that Gregory would be allowed to testify about
statements Petitioner made to her, and if she denied reporting such statements, then the
State would be allowed to impeach her testimony by calling Detective Leopold.
During the trial, which commenced on December 7, 2009, McCray, J. Mims,
Willis, and Pittman each testified as to the details of the incident and the identity of the
shooter. The four witnesses contradicted each other as to who robbed the victim, but
McCray, J. Mims, and Pittman identified Petitioner as the shooter. Willis testified that he
was not able to identify the shooter.
McCray testified that when the police showed him the photographic line-up, he
identified Petitioner as the shooter because of a “sixty-one hundred Sherry” tattoo on
Petitioner’s neck.4 Resp’t Ex. A at 287. McCray also testified that he identified
Petitioner as the shooter in the physical line-up. On cross-examination, when defense
counsel asked whether McCray was aware that Petitioner did not have a sixty-one Sherry
tattoo on his neck, McCray replied simply “[t]hat’s what I saw.” Id. at 300. When
defense counsel questioned McCray about the physical line-up, McCray testified that he
identified Petitioner as the shooter and denied identifying Petitioner as only the person
who punched the victim.
A review of the record suggests that “sixty-one hundred Sherry” (also referred to
as “sixty-one Sherry” and “Six one Sherry AV”) refers to a gang-affiliated name and/or
J. Mims testified that when the men approached his cousins and him on the day of
the shooting, Petitioner pulled out a gun and demanded the victim’s chain. J. Mims
further testified that after another man punched the victim, Petitioner was still holding the
gun and shot the victim when the victim attempted to run. J. Mims testified that when
officers arrived, he described the shooter’s general appearance, including braided hair
and a tattoo on the right side of his neck. J. Mims testified that he was unable to identify
the shooter with certainty at the photographic line-up because he could not see a tattoo.
When questioned on cross-examination about the line-ups, J. Mims testified that he was
certain that he identified Petitioner as the shooter in the physical line-up.
Pittman testified that Petitioner shot the victim when the group was fleeing after
the victim had been punched. Pittman also recalled identifying Petitioner as the shooter
in both the photographic line-up and the physical line-up. Pittman stated that he was able
to identify Petitioner as the shooter because of Petitioner’s hairstyle. On crossexamination, defense counsel attempted to challenge the credibility of Pittman’s
identification of Petitioner, highlighting that Pittman was only ten years old at the time of
the murder, that he admitted he was running away when the shooting occurred, and that
he seemingly relied solely on a hairstyle for identification. On redirect examination,
Pittman testified that he also relied on Petitioner’s neck tattoo to identify Petitioner as the
shooter, but he admitted that did not tell the police that fact.
Gregory testified that the morning following the murder, Petitioner talked about
the incident with her. Gregory testified that Petitioner told her that there was an incident
during which someone was punched, and an associate tossed Petitioner a gun and told
Petitioner to shoot. Gregory stated that Petitioner admitted he fired the gun, but claimed
that he aimed for the victim’s legs, not for his head. On cross-examination, Gregory
initially testified that it might have been that Petitioner told her that he was just told to
shoot but did not actually shoot the victim. However, when pressed on the subject,
Gregory responded by stating that she was “tired of lying” and re-affirmed that Petitioner
told her that another man tossed Petitioner a gun and told Petitioner to shoot, that
Petitioner shot the gun, and that Petitioner only meant to shoot the victim in the leg.
Resp’t Ex. A at 357-59. On redirect examination, Gregory also testified that Petitioner
had a tattoo on his chest that ran approximately from shoulder to shoulder that said “[s]ix
one Sherry AV.” Id. at 423.
Throughout the trial, defense counsel never approached the bench to renew her
motion to suppress in-court identifications or testimony regarding out-of-court
identifications of Petitioner. Nor did defense counsel object to the witnesses’ testimony
about pre-trial identification of Petitioner, or to the witnesses’ in-court identifications of
Petitioner as the shooter. Defense counsel did object to the admission of the
photographic line-up into evidence and the admission of a photograph of the physical
line-up into evidence, stating only that the objections were pursuant to her motion,
without providing further argument. Both objections were summarily overruled.
Petitioner did not testify at trial, but through cross examination sought to establish that he
was not present at the scene of the incident and had no involvement in the crime.
At the close of all evidence, Petitioner moved for a judgment of acquittal. The
trial court denied the motion, and submitted the charges to the jury. The trial court gave
the State’s requested instructions on the lesser-included offenses of felony murder and
conventional murder in the second degree, but the court denied defense counsel’s request
for an instruction on voluntary manslaughter. The trial court held such an instruction was
not warranted in light of the evidence.
As stated above, the jury returned a verdict finding Petitioner guilty of felony
murder in the second degree, robbery in the first degree, and two counts of armed
criminal action. Petitioner subsequently moved for acquittal notwithstanding the jury’s
verdict, or in the alternative a new trial, and the trial court denied the motion.
Petitioner raised one point on direct appeal. Petitioner argued that the trial court
erred in overruling the motion to suppress identification evidence, and allowing the
identification evidence at trial, because the pre-trial identification procedures were so
suggestive as to create a substantial likelihood of misidentification and render the
identifications unreliable. Petitioner claimed the line-ups were unduly suggestive
because (1) Petitioner’s photograph was placed in the photographic line-up only because
police believed he was a gang member and not because police had any other independent
or reliable reason to suspect Petitioner of the crime; (2) the witnesses were inconsistent in
identifying Petitioner before trial; (3) the witnesses were inconsistent in describing the
shooter’s tattoo; and (4) none of the witnesses’ recollections of the shooter’s tattoo
matched Petitioner’s tattoo.
The Missouri Court of Appeals held that Petitioner did not properly preserve the
claim of error because he did not timely object at trial to the in-court identifications or to
the testimony about the out-of-court identification procedures, and none of the four
grounds relied on in his appeal was ever presented to the trial court. The appellate court
also declined to conduct plain error review, stating that there were no extraordinary
circumstances in Petitioner’s case to justify it.
State Post-Conviction Proceedings
In his pro se motion for post-conviction relief, Petitioner asserted numerous claims
of trial court error and ineffective assistance of defense counsel. Specifically, Petitioner
claimed the trial court erred in (1) denying the motion for acquittal, (2) allowing the
hearsay testimony of Gregory, (3) allowing the admission of the photographic line-up, (4)
refusing to submit Petitioner’s proffered jury instruction, (5) allowing Gregory’s
testimony on Petitioner’s tattoos, and (6) admitting photographs of the victim’s body.
Additionally, Petitioner claimed defense counsel was ineffective for (7) inadequately
conducting discovery, (8) failing to discuss the State’s proposed plea offers, (9) failing to
adequately object to evidence and arguments presented by the State, (10) not spending
enough time with Petitioner, and (11) failing to challenge jury instructions.
In his amended motion for post-conviction relief, filed with the assistance of
counsel, Petitioner made only one claim:5 defense counsel was ineffective in failing to
utilize prior inconsistent statements of the eyewitnesses to undermine their identification
and credibility. Specifically, Petitioner argued that defense counsel was ineffective for
failing to “perfect” the impeachment of McCray and J. Mims. Petitioner alleged that
The amended motion did not refer to or incorporate the arguments raised in
Petitioner’s pro se motion.
reasonably competent counsel in similar circumstances would have secured witnesses and
evidence to impeach McCray and J. Mims with their prior inconsistent identifications.
Petitioner further alleged that he was prejudiced by defense counsel’s failure because the
in-court identifications made by McCray and J. Mims were central to the State’s case.
A hearing was held on January 20, 2012, at which the motion court heard from
defense counsel. Defense counsel testified that she was aware of the inconsistencies in
McCray’s and J. Mims’s statements and that she could have impeached both witnesses by
calling the police officers that took the police reports to highlight the inconsistences.
However, defense counsel testified that she chose not to call either police officer because
she did not want to give the officers the opportunity to testify that McCray, J. Mims, and
Pittman all consistently placed Petitioner at the crime scene in some capacity. She
reasoned that if Petitioner was placed at the scene, even if not as the shooter, he could
still be liable as an accomplice. Defense counsel testified that she was presented with a
choice to either impeach the witnesses through the officers, which would risk
corroborating the evidence that placed Petitioner at the scene, or not perfect the
impeachment of the witnesses and focus on denying Petitioner’s involvement completely.
The motion court found that defense counsel was not ineffective, but instead made
a reasonable decision as to trial strategy. The motion court reasoned that there was
considerable evidence against Petitioner and that defense counsel made significant
attempts to demonstrate problems with the witnesses’ identifications of Petitioner. The
motion court further reasoned there was no reasonable probability that had defense
counsel attempted further impeachment, the result of the trial would have been different.
Therefore, the motion court concluded that Petitioner’s right to the effective assistance of
counsel was not violated.
In affirming the denial of post-conviction relief, the Missouri Court of Appeals
held that it was reasonable for defense counsel to pursue the defense theory that
Petitioner was not present at the scene and attempt to prove the witnesses misidentified
Petitioner. Similar to the motion court, the appellate court reasoned that calling the
police officers to impeach the witnesses’ statements would have undermined defense
counsel’s strategy because the police officers could have corroborated statements that, at
a minimum, placed Petitioner at the scene of the crime.
Federal Habeas Petition
As noted above, Petitioner raises the following grounds for federal habeas relief:
(1) the trial court erred in denying Petitioner’s motion to suppress identification evidence;
(2) the motion court erred in denying petitioner’s motion for post-conviction relief for
ineffective assistance of defense counsel; (3) the trial court erred in denying Petitioner’s
motion in limine to prevent the State from introducing evidence that Petitioner told
Gregory that he shot the victim; and (4) the trial court erred in failing to instruct the jury
on involuntary manslaughter.
Respondent argues that each of Petitioner’s grounds has been procedurally
defaulted, and that in any event, each is without merit. Petitioner did not file a traverse.
Procedurally Defaulted Claims of Trial Court Errors (Grounds One, Three, and
Under the doctrine of procedural default, a federal habeas court is barred from
considering the merits of a claim not fairly presented to the state courts, absent a showing
by the petitioner of cause for the default and prejudice resulting therefrom, or that he is
actually innocent, such that a miscarriage of justice would result by failing to consider the
claim. E.g., Murphy v. King, 652 F.3d 845, 849 (8th Cir. 2011). The Court agrees with
the State that Petitioner’s Grounds One, Three, and Four were procedurally defaulted in
Petitioner’s habeas claim alleging the trial court erred in denying Petitioner’s
motion to suppress identification evidence (Ground One) was not properly preserved in
trial court. Under Missouri law, “to properly preserve a challenge to identification
testimony, a defendant must file a pretrial motion to suppress, object timely at trial, and
include the issue in his motion for new trial.” State v. Wendleton, 936 S.W.2d 120, 123
(Mo. Ct. App. 1996). Furthermore, the issue “is preserved for appellate review only if it
is based on the same theory presented at trial.” State v. Johnson, 207 S.W.3d 24, 43 (Mo.
The Missouri Court of Appeals correctly held that Petitioner failed to properly
preserve the objections to the in-court identifications or the testimony about the out-ofcourt identification procedures because none of these objections were raised at trial. The
Missouri Court of Appeals declined to grant plain-error review, and “[w]here the state
court declines to conduct plain error review of a defaulted point, the procedural bar must
remain intact.” Johnston v. Bowersox, 119 F. Supp. 2d 971, 979 (E.D. Mo. 2000), aff’d
sub nom. Johnston v. Luebbers, 288 F.3d 1048 (8th Cir. 2002).
Petitioner has never asserted, either in state court or in this federal habeas petition,
that defense counsel was ineffective for failing to properly preserve any objection to the
identifications. Therefore, the exception under Martinez v. Ryan, 132 S. Ct. 1309 (2012),
which excuses the procedural default of an ineffective trial counsel claim based on the
ineffective assistance of post-conviction counsel for failing to raise such a claim, does not
Likewise, Grounds Three and Four are defaulted. Petitioner’s habeas claims
alleging trial errors based on the denial of Petitioner’s motion in limine to preclude the
State from introducing evidence that Petitioner told Gregory that he shot the victim
(Ground Three), and on the failure of the trial court to instruct the jury on involuntary
manslaughter (Ground Four), each could and should have been raised on direct appeal,
and the failure to do so constituted a procedural default. Furthermore, the ineffective
assistance of direct appeal counsel cannot serve as cause to excuse the default, because
such a claim of ineffective assistance was not raised in the state post-conviction
proceedings. See Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003); Bland v. Pash,
No. 15-0041-CV-W-GAF-P, 2015 WL 3542816, at *3 (W.D. Mo. June 4, 2015); see also
Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) (declining to extend the holding of
Martinez, that ineffective assistance of post-conviction counsel could constitute cause to
excuse a procedural default of a claim that trial counsel was ineffective, to a claim that
direct appeal counsel was ineffective).
Petitioner raises no cause for or prejudice resulting from the procedural default of
Grounds One, Three, and Four, and Petitioner has failed to show that a miscarriage of
justice will result if his defaulted claims are not considered. See Abdi v. Hatch, 450 F.3d
334, 338 (8th Cir. 2006) (holding that a petitioner must present new evidence that
affirmatively demonstrates that he is actually innocent of the crime for which he was
convicted in order to fit within the miscarriage of justice exception). But in any event,
each of these claims is without merit.
Regarding Ground One, the admission of identification evidence will implicate
due process for the purpose of a federal habeas claim only when the identification
procedure was “both impermissibly suggestive and unreliable.” See Burton v. St. Louis
Bd. of Police Comm’rs, 731 F.3d 784, 797 (8th Cir. 2013) (citation omitted). “When
there are no differences in appearance tending to isolate the accused’s photograph, the
identification procedure is not unnecessarily suggestive.” Schawitsch v. Burt, 491 F.3d
798, 802 (8th Cir. 2007). To determine whether the identification procedure was
unreliable, courts consider “1) the opportunity of the witness to view the criminal at the
time of the crime; 2) the witness’s degree of attention; 3) the accuracy of the witness's
prior description of the criminal; 4) the level of certainty demonstrated at the
confrontation; and 5) the time between the crime and the confrontation.” Id.
Petitioner does not suggest, nor does the record reveal, that there were any
differences in appearance tending to isolate Petitioner in the line-ups. Therefore, the
identification procedures here were not impermissibly suggestive. Moreover, the record
shows that Petitioner’s photograph was included in the initial line-up based on physical
descriptions taken from witnesses immediately after the incident; the witnesses made the
identifications the same day as the incident; and at least one of the witnesses, Pittman,
remained consistent in the identification of Petitioner. Thus, under the totality of
circumstances, the Court cannot say that the identifications were so unreliable as to
constitute a violation of due process. See, e.g., Clark v. Caspari, 274 F.3d 507, 511–12
(8th Cir. 2001) (holding that identifications made at police showup were sufficiently
reliable, notwithstanding inconsistencies in the witnesses’ identifications, where the
witnesses had an opportunity to clearly view the perpetrators, and made the
identifications the same day, while their recollections were fresh). Petitioner’s Ground
One will be denied.
Regarding Ground Three, it is not within a federal habeas court’s province “to
reexamine state-court determinations on state-law questions,” such as evidentiary rulings
regarding hearsay. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Rather, “[i]n
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Id. Only when the
“evidentiary ruling infringes upon a specific constitutional protection or is so prejudicial
that it amounts to a denial of due process” will the ruling justify habeas corpus
relief. Abdi, 450 F.3d at 338 (citation omitted).
The trial court’s evidentiary ruling to admit Gregory’s testimony about Petitioner’s
admissions to her regarding his involvement in the crime did not infringe upon any
constitutional protection and was not so egregious as to amount to a denial of due
process. In fact, the ruling was consistent with the state rules of evidence. See State v.
Stokes, 492 S.W.3d 622, 625 (Mo. Ct. App. 2016) (holding that “the admission of a party
opponent is not hearsay . . . if it is relevant and material to the case and is offered by the
opposing party”). Petitioner’s Ground Three must be denied.
Petitioner’s Ground Four is also without merit. As an initial matter, Petitioner
never requested an involuntary manslaughter instruction, only voluntary manslaughter.
In any event, the trial court’s failure to give an involuntary manslaughter instruction did
not deprive Petitioner of a fair trial. The Eighth Circuit “has consistently held that the
failure to give a lesser included offense instruction in a noncapital case rarely, if ever,
presents a constitutional question.” Dickerson v. Dormire, 2 F. App’x 695, 695 (8th
In order to grant federal habeas relief, a court would have to say that the
state courts’ action was contrary to, or an unreasonable application of,
“clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d). The Supreme Court has never
held that due process requires the giving of lesser-included-offense
instructions in noncapital cases.
Randell v. Norman, No. 4:12 CV 1020 AGF, 2015 WL 1456977, at *4 (E.D. Mo. Mar.
30, 2015), appeal dismissed (Oct. 8, 2015) (citing Dickerson 2 F. App’x at 696). Thus,
Petitioner’s Ground Four must be denied.
Ineffective Assistance of Defense Counsel Claim (Ground Two)
Petitioner’s Ground Two asserts ineffective assistance of defense counsel, but
does not specifically state facts on which the court could determine its merits. While pro
se habeas corpus petitions should be liberally construed to prevent injustice, federal
courts are not required to sift through the entire state court record to ascertain whether
facts exist which support relief. Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990)
(finding that a habeas corpus petition that referenced the entire record for supporting
evidence was insufficient to warrant review). In light of Petitioner’s specific reference to
the motion court’s denial of his post-conviction motion as his support for Ground Two,
the Court will construe the ineffective assistance of defense counsel claim to be the same
claim raised in Petitioner’s amended post-conviction motion presented in the state court.
As stated above, Petitioner argues that defense counsel’s failure to perfect impeachment
of McCray and J. Mims was so unreasonable that it violated his Sixth Amendment rights.
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to
show ineffective assistance of counsel, “a [petitioner] must show that counsel’s
performance was deficient,” and “that the deficient performance prejudiced [his]
defense.” Id. at 687. Furthermore, when “[c]onsidering an attorney’s performance, [the
court] must indulge a strong presumption that the conduct was reasonable, and the
[petitioner] must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Paulson v. Newton Corr. Facility, 773
F.3d 901, 904 (8th Cir. 2014) (citation omitted).
In order to show prejudice, 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. Merely showing a conceivable effect is not enough; a
reasonable probability is one sufficient to undermine confidence in the outcome.” Id.
(citations omitted). And when addressing claims that were addressed by state courts,
“[t]aken together, AEDPA and Strickland establish a doubly deferential standard of
review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (citation omitted).
Here, the state courts reasonably held that defense counsel’s failure to perfect
impeachment of McCray and J. Mims did not constitute ineffective assistance of counsel.
Defense counsel testified that she was well aware of the inconsistencies between
McCray’s and J. Mims’s statements in court and their prior statements, but she reasoned
that calling the necessary law enforcement officers to further impeach the witnesses’
testimony would undermine her trial strategy.
“Generally, trial strategy and tactics are not cognizable in a federal habeas corpus
proceeding.” Mills v. Armontrout, 926 F.2d 773, 774 (8th Cir. 1991) (citation omitted);
Bowman v. Russell, 2015 WL 687179, at *9 (E.D. Mo. Feb. 18, 2015). Defense
counsel’s strategy was to argue that Petitioner was not present at the crime scene, and the
law enforcement officers could have provided additional testimony that would have
corroborated allegations of Petitioner’s presence at the scene in some capacity. Defense
counsel instead attempted to show the witnesses misidentified Petitioner, in order to
support the theory that he was not at the scene at all. Even if defense counsel had
impeached the inconsistent statements about Petitioner’s identity as the shooter, both
statements would have been consistent in placing Petitioner at the scene. Consequently,
as defense counsel noted, Petitioner could have been subjected to the same criminal
punishments under accomplice liability. See Mo. Rev. Stat. § 562.041.
In light of these facts and the other evidence at trial, the state courts reasonably
found that the trial strategy was reasonable and that the outcome of the trial would not
have been different had defense counsel attempted to further impeach the testimony of
McCray and J. Mims. Accordingly, Ground Two is without merit.
The Court concludes that Petitioner is not entitled to federal habeas relief. The
Court does not believe that reasonable jurists might find the Court’s assessment of the
procedural or substantive issues presented in this case debatable or wrong, for purposes
of issuing a Certificate of Appealability under 28 U.S.C. § 2254(d)(2). See Buck v.
Davis, 137 S. Ct. 759, 773 (standard for issuing a Certificate of Appealability) (citing
Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)).
IT IS HEREBY ORDERED that the petition of Marquise Atkins for a writ of
habeas corpus relief is DENIED. ECF No. 1.
IT IS FURTHER ORDERED that a certificate of appealability shall not be
A separate Judgment shall accompany this Memorandum and Order.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of August, 2017.
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