Haidul v. Steele
Filing
19
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. Signed by Magistrate Judge Shirley Padmore Mensah on 9/28/17. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN HAIDUL, JR.,
)
)
)
)
)
)
)
)
)
)
)
Petitioner,
v.
TROY STEELE,
Respondent.
Case No. 4:14-CV-817-SPM
MEMORANDUM AND ORDER
This matter is before the undersigned on the petition of Missouri state prisoner John
Haidul, Jr. (“Petitioner”) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The
parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to U.S. § 636(c)(1). (Doc. 6). For the following reasons, the petition is denied.
I.
FACTUAL BACKGROUND
The Missouri Court of Appeals summarized the facts as follows:
The State charged Petitioner with first-degree robbery. The trial court
conducted a jury trial. At trial, the State presented evidence from a Commerce
Bank teller who stated that in September 2007 a man she later identified as
[Petitioner] entered the bank and presented her with a note reading, “This is a
robbery. I have a gun. Give me all your money.” The teller testified that she
complied with the demand, and [Petitioner] left the bank with the cash.
Security camera footage of the robbery, which was broadcast on the
evening news, was admitted into evidence and shown to the jury. [Petitioner’s]
babysitter testified that she recognized [Petitioner] from images on a news
channel’s website and called the police. The babysitter further recounted that she
showed the footage to [Petitioner’s] wife, who began crying and responded, “Oh
my God, that’s [Petitioner].”
The State also presented the testimony of a City of Florissant police
officer who stated that [Petitioner] was placed under arrest, confessed to
1
committing the crime, and prepared a written statement to that effect.
[Petitioner’s] written confession was admitted into evidence.
[Petitioner] testified on his behalf at trial and during cross-examination
claimed to be at lunch with a friend named David Holt (“Holt”) at the time of the
robbery. [Petitioner] acknowledged that Holt would not be testifying. The jury
found [Petitioner] guilty of first-degree robbery. The trial court sentenced
[Petitioner] to a term of twenty years’ imprisonment. On appeal, this Court
affirmed the judgment. State v. Haidul, 334 S.W.3d 920 (Mo. App. E.D. 2011).
Resp’t Ex. U, at 1-2.
Petitioner filed a pro se motion for post-conviction relief. Resp’t Ex. L, at 4-22. In that
motion, he asserted several claims of ineffective assistance of trial counsel. Resp’t Ex. L, at 1216. Petitioner subsequently filed, through counsel, an amended motion for post-conviction relief,
in which he asserted that his trial counsel was ineffective because he had not contacted David
Holt and called him as an alibi witness at trial. Id. at 26-37. Petitioner also stated in the amended
motion that he was including in the motion his pro se claims. Id. at 34.
The motion court denied Petitioner’s request for an evidentiary hearing as to the claims
asserted in his pro se motion, but held an evidentiary hearing to address Petitioner’s claim that
his counsel was ineffective for failing to call David Holt as a witness. Resp’t Ex. K; Resp’t Ex.
L, at 114. The court ultimately denied all of Petitioner’s claims. Resp’t Ex. L, at 114-39. On
September 30, 2013, Petitioner filed an appeal, through counsel, asserting on appeal only the
claim that trial counsel was ineffective for failing to call David Holt as a witness. Resp’t Ex. M.
On January 10, 2014, Petitioner filed, through counsel, a document entitled, “Appellant’s Waiver
of Counsel and Request to Proceed Pro Se, With Attached Pro Se Appellant’s Brief.” Resp’t Ex.
O. The motion requested that Petitioner be permitted to proceed pro se and that the court accept
his pro se brief. Id. The motion was accompanied by a pro se brief in which Plaintiff asserted
three claims: (1) ineffective assistance based on trial counsel’s failure to present or use several
pieces of evidence; (2) ineffective assistance of counsel based on the failure to investigate and
2
call various defense witnesses; and (3) ineffective assistance of counsel based on the failure to
investigate Petitioner’s assertion that Detective Lewis had denied him the right to counsel and
that he had inhaled toxic mace a few hours before giving his written confession. Resp’t Ex. P, at
8, 38, 43. On January 15, 2014, the Missouri Court of Appeals granted Petitioner’s request to
proceed pro se but denied his request to accept the pro se brief; it did not state any reasons for its
decision. Resp’t Ex. Q. On February 6, 2014, Petitioner filed a motion to file a reply brief out of
time. Resp’t Ex. R. On February 14, 2014, the Missouri Court of Appeals denied the motion on
the ground that it was out of time, was not a proper reply brief, and included several attached
documents that had not been filed as part of the legal file. Resp’t Ex. T. The Missouri Court of
Appeals then affirmed the decision of the motion court on the single claim presented by
Petitioner’s post-conviction counsel. Resp’t Ex. U.
In the instant petition, Petitioner asserts ten claims of ineffective assistance of trial
counsel: (1) failure to call David Holt, Mary Peters, and Steven Shear 1 as defense witnesses; (2)
failure to obtain a photo or Carfax report of Petitioner’s car to refute the State’s theory that
Petitioner’s car was seen at the scene of the robbery; (3) failure to obtain transcripts of Detective
Lewis’ testimony from a motion to suppress hearing in another case; (4) failure to contact
witnesses whose testimony would have shown that Petitioner was denied counsel during his
interrogations; (5) failure to object to the testimony of Cathy Bienkowski that Petitioner had paid
her in cash; (6) failure to contact and depose Petitioner’s father about exculpatory evidence
regarding Petitioner’s ex-wife; (7) failure to obtain and present photographs of Richard Michele
and Christopher Knocke 2 and to present Crime Stoppers tips to show that there were people
other than Petitioner who resembled the robbery suspect; (8) failure to investigate Petitioner’s
1
2
Mr. Shear’s name is spelled at various places in the record as “Shear,” “Sheer,” and “Shears.”
Mr. Knocke’s name is spelled as “Knoche” at certain places in the record.
3
contention that he was exposed to mace and denied his asthma inhaler shortly before his
confession; (9) failure to introduce evidence to prove that Petitioner’s ex-wife committed perjury
during her dissolution from Petitioner; and (10) failure to introduce evidence to undermine the
bank teller, Ms. Hernandez’s testimony. Pet’n, Doc. 1. While Petitioner raised eight of these
grounds in his post-conviction motion, Petitioner only raised part of one of these grounds
(Ground One, as it relates to David Holt) in his post-conviction appeal, filed through counsel.
Resp’t Ex. M.
II.
LEGAL STANDARDS
A. Legal Standard for Reviewing Claims Adjudicated on the Merits in State
Court
Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by the AEDPA
[the Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential
review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003)
(citing 28 U.S.C. § 2254). Under AEDPA, a federal court may not grant habeas relief to a state
prisoner with respect to any claim that was adjudicated on the merits in the state court
proceedings unless the state court’s adjudication of a claim “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly
established Supreme Court precedents “if the state court applies a rule that contradicts the
4
governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [the Supreme Court’s] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A
state court decision involves 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.” Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685,
694 (2002). “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.” Jones v.
Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are
presumed correct unless the habeas petitioner rebuts them through clear and convincing
evidence) (citing 28 U.S.C. § 2254(e)(1)).
In the instant case, each of Petitioner’s claims is based on an assertion that his counsel
was ineffective. The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective
assistance of counsel, Petitioner must show both that “[his] counsel’s performance was deficient”
and that “the deficient performance prejudiced [his] defense.” Id.at 687; see also Paulson v.
Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance,
Petitioner must show “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and Petitioner bears a
5
heavy burden in overcoming “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance” and “might be considered sound trial strategy.” Id.
at 689 (citation and internal quotation marks omitted). To demonstrate 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. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691.
When an ineffective assistance claim has been addressed by the state court, this Court
must bear in mind that “[t]aken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, 563 U.S. 170, 190 (2011)). In the context of a habeas claim, it is not sufficient for a
petitioner to “show that he would have satisfied Strickland’s test if his claim were being
analyzed in the first instance,” Bell, 535 U.S. at 698-99. “Rather, he must show that the [state
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at
699.
B. Procedural Default
To preserve a claim for federal habeas review, “a state habeas petitioner must present that
claim to the state court and allow that court an opportunity to address his claim.” Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32
(1991)). “Where a petitioner fails to follow applicable state procedural rules, any claims not
properly raised before the state court are procedurally defaulted.” Id. The federal habeas court
will consider a procedurally defaulted claim “only where the petitioner can establish either cause
6
for the default and actual prejudice, or that the default will result in a fundamental miscarriage of
justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate cause, a
petitioner must show that “some objective factor external to the defense impeded [the
petitioner’s] efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To establish prejudice, a petitioner must demonstrate that the claimed errors
“worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Lastly, in order to assert the fundamental
miscarriage of justice exception, a petitioner must “present new evidence that affirmatively
demonstrates that he is innocent of the crime for which he was convicted.” Murphy v. King, 652
F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
III.
DISCUSSION
A. Claim Properly Presented at Each Step of the State Post-Conviction Process:
Ground One (Part A)—Ineffective Assistance of Counsel Based on Failure to
Call David Holt as a Witness
In Ground One (Part A), Petitioner argues that his trial counsel was ineffective because
she failed to contact David Holt and call him as an alibi witness. Petitioner asserts that he had
lunch with Mr. Holt on the day of the bank robbery and that he informed his trial counsel of that
fact. Petitioner also suggests that Mr. Holt could have been a witness to Petitioner’s physical
description at the time of the robbery. This claim was presented in Petitioner’s amended motion
for post-conviction relief and in his appeal from the denial of that motion, and the state courts
denied the claim on the merits.
In denying this claim, the Missouri Court of Appeals found that Petitioner had not
established either prong of Strickland. It stated:
7
We . . . find that [Petitioner] does not establish that his trial counsel
employed unreasonable trial strategy. Counsel testified that she did not consider
Holt a good witness because of the uncertainty surrounding his potential
testimony. Counsel also indicated that [Petitioner] did not tell her Holt’s last name
or ask her to contact him. In light of counsel’s explanation and the strong
presumption that a decision to not call a witness is a matter of trial strategy, we do
not find that [Petitioner] has shown that his counsel’s performance was deficient
under the first prong of Strickland v. Washington.
Moreover, [Petitioner] does not show that counsel’s failure to call Holt
prejudiced his defense, as is required under the second prong of Strickland. Holt’s
testimony at the evidentiary hearing would not have supported [Petitioner]’s alibi,
but would have been detrimental to his defense. Additionally, we note that the
State’s case against [Petitioner] was strong. The State presented overwhelming
evidence of [Petitioner]’s guilt: the jury saw security camera footage of the
robbery, heard from eyewitnesses, and learned [Petitioner] had confessed to the
crime. As such, we find that [Petitioner] did not suffer any prejudice and the result
of the proceeding would not have been different had Holt testified. Point I is
denied.
Resp’t Ex. U, at p. 5.
The Missouri Court of Appeals’ adjudication of the claim was not objectively
unreasonable under Strickland. The court’s finding regard to the first prong of Strickland
(deficient performance) is supported by Petitioner’s trial counsel’s testimony that although
Petitioner had told her that there was a friend of his that he had supposedly had lunch with on the
day of the robbery, her notes indicate that the friend was not certain what day he actually had
lunch with Petitioner and that there was uncertainty about it. Resp’t Ex. K, at 12-13. It was not
unreasonable for Petitioner’s trial counsel not to contact a witness who was uncertain about
Petitioner’s whereabouts at the time of the crime.
Moreover, even assuming, arguendo, that Petitioner could establish the first prong of
Strickland, the record makes it clear that Petitioner was not prejudiced by his trial counsel’s
failure to contact Mr. Holt or call him as a witness. Mr. Holt’s testimony at the evidentiary
hearing shows that Mr. Holt did not remember having lunch with Petitioner on the date of the
robbery (a Monday):
8
Q:
So, not to interrupt you, he called, he said remember that time we went to
lunch?
A:
Yes.
Q:
It was Monday?
A:
Yes.
Q:
How did you respond?
A:
My response was John, we really shouldn’t—well.
Q:
I am sorry, at this time were you sure, let me ask you that.
A:
I was positive of when he was talking about, not the date, but when he was
talking about we had lunch, I was positive.
Q:
At that time you weren’t sure what day?
A:
No.
Q:
So continue, what does he say?
A:
I said, John, we really shouldn’t be talking about this. You are being
taped. And he insisted. I said, if you want me to tell you what I remember,
I invited you to lunch on Monday, you said you were doing something and
we went to lunch the next day.
Q:
How did he respond?
A:
He insisted I need to keep thinking about it.
Q:
Okay. Did you talk to him again about this topic?
Q:
A few times, yeah.
Q:
Was it around this time?
A:
No, it was sometime after. I think desperation was setting in and I told
him, I just—I can’t say something I didn’t remember, and what I
remember it was— I remember it happening.
Q:
So you told him is what you remember [sic]?
A:
Yes, I am not going to lie.
9
Resp’t Ex. K, at 6-7. It is clear that even if trial counsel had contacted Mr. Holt and called him as
a witness, Mr. Holt would not have provided an alibi for Petitioner. To the contrary, his
testimony could have actually harmed Petitioner’s case by showing that Petitioner was
attempting to pressure him into creating an alibi.
The Missouri Court of Appeals’ finding of no prejudice is also supported by the
overwhelming evidence of guilt in the record, including the identification of Petitioner as the
robber by Jessica Hernandez, the bank teller who handed the money to the robber, Resp’t Ex. C,
at 120-21, 127-29, 131; Resp’t Ex. D, at 265-71; the identification of Petitioner as the robber by
Cathy Bienkowski, the babysitter for Petitioner’s children, who saw photographs of the robbery
on a news channel website and recognized the robber’s photograph as that of Petitioner, Resp’t
Ex. D, at 217-18, 221-23; the identification of Petitioner as the robber by Tarsha Haidul,
Petitioner’s ex-wife, who saw photographs of the robber on the same website and identified the
photograph as that of Petitioner, Resp’t Ex. D, at 244-46; the surveillance video and photographs
of the robbery, which were introduced into evidence, Resp’t Ex. C, at 154-61; and Petitioner’s
own admission to the police that he robbed the bank, Resp’t Ex. D, at 287-91; Resp’t Ex. G. In
light of this overwhelming evidence, it was reasonable for the motion court to find no reasonable
probability that the outcome of the trial would have been different if a witness had testified that
he might have had lunch with Petitioner on the day of the crime. Moreover, in light of all of this
overwhelming evidence, Petitioner offers no basis for a finding that the outcome of trial would
have been different had Mr. Holt testified about Petitioner’s physical appearance at the time of
the robbery, particularly given that Petitioner’s own ex-wife and babysitter had identified him
and that the jurors saw the surveillance footage and photographs of the robber. See, e.g.,
10
Christenson v. Ault, 598 F.3d 990, 997 (8th Cir. 2010) (“When there is overwhelming evidence
of guilt presented, it may be impossible to demonstrate prejudice.”) (citing Strickland, 466 U.S.
at 700); Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir. 1999) (“We find it unnecessary to discuss
the reasonableness of counsel’s conduct because, given the overwhelming evidence of
[petitioner’s] guilt presented at trial, we find that it would be impossible for him to demonstrate
prejudice under Strickland.”).
For all of the above reasons, Ground One (Part A), asserting ineffective assistance of trial
counsel based on the failure to call Mr. Holt as a witness, is denied.
B. Claims Presented in the Motion for Post-Conviction Relief but Not in the
Appeal Filed Through Counsel: Ground One (Parts B and C), Grounds Two
Through Four, and Grounds Six through Nine
Ground One (Parts B and C), Ground Two, Ground Three, Ground Four, Ground Six,
Ground Seven, Ground Eight, and Ground Nine 3 were presented in Petitioner’s amended motion
for post-conviction relief, and the motion court denied each of those claims on the merits. Resp’t
Ex. L, at 116-139. However, those claims were not presented in Petitioner’s appeal from the
denial of that motion, filed through counsel. Resp’t Ex. M. Respondent argues that these grounds
have therefore been procedurally defaulted. See Arnold v. Dormire, 675 F.3d 1082, 1087 (8th
Cir. 2012) (claim of ineffective assistance of counsel that was presented in motion for postconviction relief but not on appeal from the denial of that motion was procedurally defaulted);
Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (“Missouri procedure requires that a claim be
presented at each step of the judicial process in order to avoid default. Failure to raise a claim on
3
Respondent appears to take the position that Ground Five was also presented in Petitioner’s
motion for post-conviction relief. However, the Court’s review of that motion does not support
that conclusion. See Resp’t Ex. L, at 12-16.
11
appeal from the denial of a post-conviction motion erects a procedural bar to federal habeas
review.”) (quotation marks and citations omitted).
Petitioner appears to be arguing both (1) that any procedural default of these claims was
excused because his post-conviction appellate counsel abandoned the claims, providing “cause”
for the default, and (2) that no procedural default occurred in the first place, because he did
everything he could do to raise the claims on appeal by waiving his right to counsel and
presenting a pro se brief to the Missouri Court of Appeals (even though that pro se brief was not
accepted). Petitioner’s first argument is without merit. It is well established that ineffective
assistance of post-conviction appellate counsel does not constitute “cause” to excuse a
procedural default. See Arnold, 675 F.3d at 1086-87 (failure of post-conviction counsel to raise
claims on appeal from initial-review collateral proceeding does not constitute cause to excuse
procedural default). Petitioner offers no other basis for finding cause to excuse the procedural
default. Additionally, Petitioner does not allege any new evidence of innocence that might
support a finding that failure to address this claim would constitute a miscarriage of justice.
Thus, if this claim is procedurally defaulted, there is no basis for excusing the default.
Petitioner’s second argument—that these claims were not procedurally defaulted because
he did everything he could to present them to the Missouri Court of Appeals—presents a closer
question. Petitioner relies on Clemmons v. Delo, 124 F.3d 944 (8th Cir. 1997). In Clemmons, the
petitioner told his post-conviction appeal counsel to raise certain issues, and counsel did not raise
them. Id. at 948. The petitioner subsequently “instructed him to file a supplemental brief raising
the additional issues” so that they would be properly presented, and counsel still refused to
present them. Id. The petitioner then filed a motion in the Missouri Supreme Court to file a
supplemental brief pro se, and the Missouri Supreme Court denied the pro se motion without
12
comment. Id. The Eighth Circuit found that the claim at issue had been fairly presented and had
not been procedurally defaulted, stating, “We do not know what else he could have done, as a
practical matter, to present the claim [to the Missouri courts] for a decision on the merits.” Id. at
948-49. See also Cole v. Hopkins, 56 F. App’x 742, 744 (8th Cir. 2003) (“The record indicates
that Cole has been advocating this fraudulent element of the offense claim since before his trial.
Cole repeatedly requested appointment of counsel who would argue his theory of the case.
Although many attorneys were appointed, and excused, none raised Cole’s claim. When counsel
refused to raise it on appeal, Cole submitted supplemental pro se briefs. Cole has done all he can
to place the issue before the courts.”) (citing Clemmons, 124 F.3d at 948). 4
The situation here appears to be similar to that in Clemmons. Petitioner alleges that
months before his post-conviction appellate brief was due, Petitioner prepared his own brief and
mailed it to his appellate counsel. His appellate counsel then filed a brief that did not include his
pro se claims. Petitioner alleges that upon finding out that his post-conviction appellate counsel
had filed a brief that did not contain the pro se claims from Petitioner’s post-conviction motion,
4
Several courts have found Clemmons distinguishable and found procedural default where the
Missouri Court of Appeals’ refusal to accept a pro se brief was based on a specific local rule
forbidding the filing of pro se briefs filed by parties represented by counsel. See, e.g., Freeman v.
Cassady, No. 15-0142-CV-W-ODS-P, 2015 WL 2449249, at *4-*5 (W.D. Mo. May 21, 2015)
(finding Clemmons inapposite where the Missouri Court of Appeals had specifically cited a local
rule barring the filing of pro se briefs by counseled parties); Warren v. Roper, No. 4:07-CV-625CEJ, 2008 WL 1913978, at *6 (finding Clemmons distinguishable despite the petitioner’s filing
of a supplemental pro se brief, because “the Missouri Court of Appeals for the Eastern District of
Missouri has promulgated a procedural rule barring the filing of pro se briefs by parties
represented by counsel”). However, those cases do not appear to apply here. In this case, the
Missouri Court of Appeals did not rely on any such rule (or any rule at all) in its decision not to
accept Petitioner’s brief, nor does it appear that such a rule would apply here. Rule 380 of the
Missouri Court of Appeals for the Eastern District of Missouri expressly applies only in cases
“where a party is represented by counsel” and attempts to file a pro se brief. In this case,
however, Petitioner waived his right to counsel, and the Missouri Court of Appeals granted
Petitioner’s motion to represent himself, so he was not “a party represented by counsel.” Thus, it
is unclear why the court did not accept his pro se brief.
13
he filed with the Missouri Court of Appeals a waiver of counsel, a motion to proceed pro se, and
an appellate brief. Petitioner was permitted to proceed pro se, but his pro se brief was not
accepted. Petitioner also asserts that after the Missouri Court of Appeals denied the appeal as
presented by his appellate counsel, he filed a Motion for Re-Hearing in which he explained that
his appellate counsel had failed to allow him to make the final decision about what claims would
be raised on appeal from the denial of the trial court. As in Clemmons, it is unclear what more
Petitioner could have done to present his claims to the Missouri Court of Appeals.
After review of Petitioner’s pro se brief, it is not entirely clear whether he actually fairly
presented each of the eight claims at issue to the Missouri Court of Appeals. In his pro se brief,
Petitioner raised three “Points Relied Upon,” none of which clearly and specifically corresponds
to any of the eight claims he now raises. However, a reading of the brief as a whole shows that
within those three claims, Petitioner discusses the factual and legal basis or each of the eight
claims he now presents. The Court is inclined to find that Petitioner did fairly present these eight
claims to the Missouri Court of Appeals, and thus that there was no procedural default of these
claims. However, the Court need not resolve the question of procedural default as to each of
these claims. “Although the procedural bar issue should ordinarily be resolved first, judicial
economy sometimes dictates reaching the merits if the merits are easily resolvable against a
petitioner while the procedural bar issues are complicated.” Barrett v. Acevedo, 169 F.3d 1155,
1162 (8th Cir. 1999). Even assuming, arguendo, that Petitioner has shown that these claims were
not procedurally defaulted, the Court finds that they should be denied because they are without
merit.
The Court first considers the appropriate standard of review. Petitioner argues that the
Court should review the merits of his claims de novo, rather than under AEDPA’s deferential
14
standard of review, because the state motion court did not adjudicate his claims on the merits.
The Court disagrees. An adjudication on the merits is the resolution of a claim on substantive
grounds rather than procedural grounds. See Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005)
(“An adjudication on the merits is perhaps best understood by stating what it is not: it is not the
resolution of a claim on procedural grounds.”); Neal v. Puckett, 286 F.3d 230, 235 (5th Cir.
2002) (“adjudication ‘on the merits’ is a term of art that refers to whether a court’s disposition of
the case was substantive as opposed to procedural”). In its decision, the motion court set out the
Strickland standard for ineffective assistance of counsel, and it then reviewed and denied each of
those claims under the Strickland standard. This was sufficient to constitute an adjudication on
the merits. See Worthington v. Roper, 631 F.3d 487, 497 (8th Cir. 2011) (“[T]he postconviction
trial court’s discussion of counsel’s performance—combined with its express determination that
the ineffective-assistance claim as a whole lacked merit—plainly suffices as an adjudication on
the merits under AEDPA.”).
Thus, the Court will review the motion court’s determinations with regard to each of
these claims using AEDPA’s deferential standards.
1. Ground One (Part B)—Ineffective Assistance of Counsel Based on Failure
to Call Mary Peters as a Witness
In Ground One (Part B), Petitioner asserts that his trial counsel was ineffective based on
her failure to investigate and call as a witness Mary Peters. Petitioner asserts that Ms. Peters was
a customer present at the time of the crime, that she described to the police a male at the window
next to her who slid a piece of paper to the teller and talked about changing his address, and that
her description matched Petitioner only in height and hair color. Petitioner asserts that this was
evidence that Petitioner was not actually the robber, and that Petitioner’s trial counsel ignored
this relevant evidence. The motion court denied this claim, finding that that Petitioner had not
15
shown that Ms. Peters could have been located through reasonable investigation, that she would
have testified if called, or that her testimony would have provided a viable defense for Petitioner.
The motion court also found that the facts alleged by Petitioner were refuted by Petitioner’s own
testimony, that Petitioner’s counsel was not ineffective, and that there was no prejudice to
Petitioner. Resp’t Ex. L, at 119-20.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. With respect to the deficient
performance prong of Strickland, the evidence refutes Petitioner’s contention that his trial
counsel ignored this evidence, instead suggesting that she made a reasonable determination that
it was irrelevant. At the hearing before the motion court, Petitioner’s trial counsel testified that
she had talked about Ms. Peters with Petitioner, and that the police report indicated that the
police had determined that Ms. Peters was not describing the robber at all, but was actually
describing another customer that was in the bank. Resp’t Ex. K, at 17. Petitioner’s trial counsel
testified that based on this information, she determined that Ms. Peters’s description did not bear
any relationship to the identification or description of Petitioner. Id. Although Petitioner asserts
that his trial counsel should have done more to investigate instead of relying on secondhand
information from the police report, he cannot show that her failure to do so was an error “so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” See Strickland, 466 U.S. at 687. Thus, it was not unreasonable for the motion
court to find that he could not establish the first prong of Strickland.
Second, the motion court’s finding that Petitioner was not prejudiced by this error was
reasonable and supported by the record. As discussed above, the evidence that Petitioner was the
robber was overwhelming, including identifications from three witnesses (one who was at the
16
scene, and two who knew Petitioner personally and recognized him from photographs); a
surveillance tape; and a confession from Petitioner. Even assuming, arguendo, that Ms. Peters
would have offered a description of the robber that differed somewhat from a description of
Petitioner, there is no reasonable probability that such testimony would have resulted in a
different outcome at trial.
For all of the above reasons, Ground One (Part B), asserting ineffective assistance of trial
counsel based on the failure to call Ms. Peters as a witness, is denied.
2. Ground One (Part C)—Ineffective Assistance of Counsel Based on Failure
to Call Steven Shear as a Witness
In Ground One (Part C), Petitioner asserts that his trial counsel was ineffective based on
her failure to investigate and call as a witness Steven Shear, who saw a black Nissan driving
away from the bank around the time of the robbery. Petitioner asserts that Mr. Shear’s testimony
would have undermined the State’s theory that a maroon vehicle seen in the bank’s parking lot
(and resembling Petitioner’s own maroon vehicle) was the getaway car. The motion court denied
this claim, finding that that Petitioner had not shown that Mr. Shear could have been located
through reasonable investigation, that he would have testified if called, or that his testimony
would have provided a viable defense for Petitioner. The motion court also found that the facts
alleged by Petitioner were refuted by Petitioner’s own testimony, that Petitioner’s counsel was
not ineffective, and that there was no prejudice to Petitioner. Resp’t Ex. L, at 120.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. With regard to the first prong of
Strickland, it was reasonable for the motion court to find that Petitioner’s trial counsel did not
show deficient performance by not calling Mr. Shear. At the hearing before the motion court,
Petitioner’s trial counsel testified that the police report described the vehicle as driving away
17
from the area of the bank only at thirty-five miles per hour, and that nothing in the police report
linked that car to the robbery. Resp’t Ex. K, at 24. Petitioner’s trial counsel also testified that her
trial strategy was to attack the State’s theory that the maroon car seen in the bank parking lot
belonged to Petitioner by pointing out differences between the description of that car and
Petitioner’s own vehicle. Id. at 24-25. In light of the lack of any connection between the black
Nissan and the robbery, the fact that a car traveling at 35 miles per hour on a road near a bank is
not in itself particularly remarkable, and the fact that Petitioner’s trial counsel had another
strategy for attempting to undermine the State’s theory that the getaway car belonged to
Petitioner, it was not unreasonable for the motion court to find that she did not show deficient
performance by failing to contact and call Mr. Shear.
Even assuming, arguendo, that trial counsel showed deficient performance by not
contacting Mr. Shear and calling him as a witness, the motion court correctly found that
Petitioner suffered no prejudice from this error. As discussed above, the evidence against
Petitioner was overwhelming and included multiple identifications of Petitioner, the video
surveillance footage of the robbery, and his confession. In light of that evidence, there is no
reasonable probability that the outcome of Petitioner’s case would have been different had
counsel called Mr. Shear to testify that a car unconnected to Petitioner was driving away from
the bank around the time of the robbery.
For all of the above reasons, Ground One (Part C), asserting ineffective assistance of
counsel based on the failure to contact Mr. Shear and call him as a witness, is denied.
3. Ground Two—Ineffective Assistance of Counsel Based on Failure to Obtain
Carfax Report and Photograph of Petitioner’s Car
In Ground Two, Petitioner asserts that his trial counsel was ineffective because she failed
to obtain a Carfax report and a photograph of his car to prove that his vehicle was not the one
18
seen in the parking lot by state witness Misty Mitchell-Guille. The motion court denied this
claim, finding that Petitioner had not alleged facts that warranted relief and that any alleged error
did not result in prejudice to Petitioner. The motion court also noted that Petitioner’s trial counsel
did address the issue of what the car looked like in examining Ms. Mitchell-Guille and
Petitioner’s wife. Resp’t Ex. L, at 121.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. With regard to the first prong of
Strickland, it was not unreasonable for the motion court to find that trial counsel’s performance
was not deficient, in light of the fact that the car in the bank parking lot was a relatively small
part of the State’s case and in light of the fact that trial counsel did make efforts to undermine the
State’s theory about that car. At trial, the State presented evidence from Ms. Mitchell-Guille that
around the time of the robbery she saw a maroon “sporty-type vehicle with a fin on the back” in
the bank parking lot that had its door open. Resp’t Ex. C, pp. 202-04. Petitioner asserts that he
did not own or have access to such a car, but instead owned a maroon four-door Acura T1. In her
cross-examination of Ms. Mitchel-Guille, trial counsel elicited testimony that that the car Ms.
Mitchel-Guille saw possibly could have been a two-door car. Id. at 206. Trial counsel also
elicited testimony from Ms. Mitchell-Guille that she had not identified a specific car, did not
remember a license number, did not know who the car belonged to, and did not see anyone drive
away in the car. Resp’t Ex. C, at 205-07. Petitioner’s ex-wife also testified that Petitioner drove a
four-door car, not a two-door car. Resp’t Ex. D, at 240-41. In her closing argument, Petitioner’s
trial counsel pointed out the difference between the two-door car described by Ms. MitchellGuille and the four-door car belonging to Petitioner. Resp’t Ex. D, at 409. Although Petitioner
argues that his trial counsel should have done more to undermine the State’s theory, he cannot
19
show that her decision not to do so was an error “so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” See Strickland, 466 U.S. at
687. Thus, it was not unreasonable for the motion court to find that he could not establish the
first prong of Strickland.
With regard to the prejudice prong of Strickland, it was not unreasonable for the motion
court to determine that there was no prejudice to Petitioner from this alleged error. The testimony
that a car seen in the bank parking lot resembled Petitioner’s was a relatively insignificant detail
in the case, particularly in light of the lack of evidence that the car in the bank parking lot was
used in the robbery. Moreover, as discussed above, the evidence against Petitioner was
overwhelming and included multiple identifications of Petitioner, the video surveillance footage
of the robbery, and his confession. In light of that evidence, there is no reasonable probability
that the outcome of Petitioner’s case would have been different even if counsel had offered
definitive proof that the car seen by Ms. Mitchell-Guille did not belong to Petitioner.
For the above reasons, Ground Two is denied.
4. Ground Three—Ineffective Assistance of Counsel Based on Failure to
Obtain and Present Transcripts of Suppression Hearing in St. Louis County
Case
In Ground Three, Petitioner argues that his counsel was ineffective because she did not
obtain transcripts of a St. Louis County suppression hearing 5 that took place in June of 2008, in
which Detective Lewis testified about the events that took place at the Florissant police
department on October 4th and 5th of 2007. The motion court denied this claim, finding that
5
On October 4, 2007, Petitioner was arrested for, and questioned about, three bank robberies: the
Commerce Bank robbery in St. Charles County that formed the basis for the conviction at issue
in this habeas petition, and two other bank robberies in St. Louis County. Resp’t Ex. L, at 66.
Petitioner ultimately entered an Alford plea in the two St. Louis County cases. See Resp’t Ex. L,
at 99; North Carolina v. Alford, 400 U.S. 25 (1970).
20
Petitioner had not alleged that a transcript could have been obtained; had not shown how the
information would be valuable at trial; and had not shown that failure to obtain the information
prejudiced him. Resp’t Ex. L, at 121-22.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. Petitioner did not allege in his
claim presented to the motion court, and has not alleged in the instant petition, how anything in
the suppression hearing in the other case would have assisted him at trial or would have affected
the outcome of the case. Thus, the state court reasonably found that he had not shown a
reasonable probability that the outcome of the trial would have been different had this evidence
been obtained.
In his Reply brief, Petitioner does provide additional detail regarding the testimony that
Detective Lewis gave at the St. Louis County suppression hearing. Reply, Doc. 16, at 20-26. 6
Petitioner identifies several pieces of testimony that Petitioner asserts indicate that Detective
Lewis was “willing to be untruthful about the events that took place on October 4th, 5th.” Id. at
26. For example, he points out that Detective Lewis testified that upon arriving at Petitioner’s
home, officers immediately told Petitioner they were there to investigate missing money, yet he
also testified that Petitioner had said he thought the police were there to serve him divorce
papers. Id. at 21-22. Petitioner states that he asked his trial counsel why he would ask about
divorce papers if the police had immediately told him they were there to talk about missing
money from a bank. Id. at 22. Petitioner also points out that in the St. Louis County suppression
hearing, Detective Lewis testified that Petitioner at one point during his arrest said he was
nervous, yet in his suppression hearing in this case, Detective Lewis never testified that
6
For the documents that were electronically filed in this case, page numbers refer to the
numbering of the electronically filed document.
21
Petitioner stated he was nervous. Id. at 22-23. Petitioner also points out that Detective Lewis told
Petitioner that officers wanted to talk to him about “missing money from a bank,” when in reality
they were there to investigate three separate bank robberies, not missing money from “a bank.”7
Id. at 23-24.
Even assuming, arguendo, that the Court could consider these factual allegations that
were presented for the first time in Petitioner’s Reply brief, Petitioner still could not show any
prejudice from his trial counsel’s failure to obtain the St. Louis County transcript. The
inconsistencies Petitioner identifies in Detective Lewis’s testimony are barely inconsistent at all
and do not appear to the Court to indicate that Detective Lewis was being “untruthful” regarding
the events at issue. Moreover, in light of all of the other evidence in the case that did not come
from Detective Lewis, the motion court reasonably found that Petitioner could not show any
reasonable probability that the outcome of his trial would have been different had his trial
counsel obtained this evidence and used it to undermine Detective Lewis’s credibility.
For all of the above reasons, Ground Three is denied.
5. Ground Four—Ineffective Assistance of Counsel Based on Failure to
Contact and Call Police Officers Who Interrogated Petitioner
In Ground Three, Petitioner asserts that his trial counsel was ineffective in that she failed
to contact and call a police officer and two FBI agents who interrogated Petitioner. Petitioner
asserts that he told his trial counsel that these officers interrogated him and then stopped because
Petitioner requested counsel and denied any involvement in the robbery. He asserts that these
witnesses could verify that Petitioner requested counsel on October 4, 2007—the day before he
gave a written confession. The motion court denied the claim, finding that Petitioner had not
7
Petitioner’s Reply brief contains other arguments about the untruthfulness of Detective Lewis’s
testimony, but they do not appear to relate to the St. Louis County suppression hearing transcript
and thus are not relevant to Ground Three. Reply, Doc. 16, at 22-24.
22
shown that the witnesses could have been located through reasonable investigation, that they
would have testified if called, or what they would have testified to if called. The motion court
also noted that Petitioner’s trial counsel did cross-examine the detectives who talked to the
defendant prior to his written statements during the suppression hearing, and that the detectives
testified that they were the only ones who spoke with Petitioner during the relevant time period.
The motion court found that Petitioner’s counsel was effective and that there was no prejudice to
Petitioner. Resp’t Ex. L, at 123.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. At the motion hearing,
Petitioner’s trial counsel testified that she did not remember Petitioner making any suggestions
about witnesses for the suppression hearing. Resp’t Ex. K, at 12. Petitioner’s trial counsel also
testified that although Petitioner had spoken to her about his questioning by police officers from
different departments, she did not contact them because based on police reports, she determined
that they did not have any useful information. Id. at 15-16. In addition, Petitioner cross-examined
Detective Lewis at the suppression hearing, and he testified Petitioner had never asked for an
attorney in Detective Lewis’s presence and that no one else had spoken to Mr. Haidul when he
was not present. Resp’t Ex. A, at 17. In light of these facts, it was not unreasonable for the
motion court to find that Petitioner’s trial counsel did not show deficient performance by not
contacting these potential witnesses.
The motion court’s finding of no prejudice was also not unreasonable. Petitioner has not
presented any evidence that these officers, if contacted, would have supported his version of
events. Moreover, although the confession was a significant piece of evidence against Petitioner,
there was a great deal of other evidence of guilt. The other evidence included, but was not
23
limited to, the identifications of Petitioner as the robber by the bank teller, his children’s
babysitter, and his ex-wife; and the video surveillance footage of the robbery. Given the “doubly
deferential” standard the Court must apply, the Court cannot say that it was objectively
unreasonable for the motion court to determine that trial counsel’s performance was not deficient
and that Petitioner was not prejudiced under these circumstances.
For all of the above reasons, Ground Four is denied.
6. Ground Six—Ineffective Assistance of Counsel Based on Failure to Obtain
Evidence from Petitioner’s Father
In Ground Six, Petitioner argues that his trial counsel was ineffective because she failed
to obtain evidence from Petitioner’s father, John Haidul, Sr. Petitioner asserts that his father had
a conversation with Petitioner’s ex-wife that contradicts the testimony that Petitioner’s ex-wife
gave at trial. The motion court denied this claim, finding that Petitioner had not shown that the
testimony of Petitioner’s father would have provided a viable defense, that Petitioner had failed
to provide an affidavit as to what the witness would have testified to, and failed to show how the
evidence would have had an effect on the trial. The motion court concluded that Petitioner had
not shown prejudice from the alleged error. Resp’t Ex. L, at 127-28.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. The motion court reasonably
determined that Petitioner could not show prejudice under Strickland. Even assuming, arguendo,
that Ms. Haidul’s testimony had been completely undermined and rendered useless, the other
evidence against Petitioner (the two identifications, the video, and the confession) was still
overwhelming. The motion court reasonably determined that Petitioner could not show a
reasonable probability that the outcome of trial would have been different absent counsel’s
alleged error, and thus that he could not show prejudice.
24
For all of the above reasons, Ground Six is denied.
7. Ground Seven—Ineffective Assistance of Counsel Based on Failure to
Obtain Photographs of Richard Michele and Christopher Knocke and to
Present Crime Stoppers Evidence
In Ground Seven, Petitioner argues that his trial counsel was ineffective because she
failed to obtain photographs of Richard Michele and Christopher Knocke and because she failed
to present evidence that released photographs of the robber resembled several people other than
Petitioner. Petitioner suggests that this evidence would have supported his claim that the
witnesses who identified him were mistaken. The motion court denied this claim, finding that
Petitioner had not shown that the failure to obtain and produce this information had prejudiced
him. Resp’t Ex. L, at 130-32. The motion court also noted that at trial, Petitioner’s counsel had
cross-examined Detective Grove about Christopher Knocke. Id. at 132.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. The jury did hear evidence that
there were calls to Crime Stoppers in which callers claimed to have recognized someone other
than Petitioner as the robber. Resp’t Ex. C, at 190-92. Petitioner’s trial counsel also asked a
police witness about the Crime Stoppers tip that led to an investigation of Christopher Knocke,
but the detective testified that although Mr. Knocke’s driver’s license photograph resembled the
robber, he concluded upon seeing him in person that he was not the robber. Resp’t Ex. C, at 19399. Petitioner presents no reason to believe that developing and offering additional evidence of
this type would have changed the outcome of his trial. Petitioner also does not suggest that there
is any evidence tying any of these other individuals to the robbery. Moreover, as discussed
above, the other evidence of Petitioner’s guilt was overwhelming. Thus, the motion court’s
25
finding that Petitioner was not prejudiced by the alleged counsel error was not objectively
unreasonable.
For all of the above reasons, Ground Seven is denied.
8. Ground Eight—Ineffective Assistance of Counsel Based on Failure to
Develop Evidence that a Few Hours Before Petitioner Confessed, He Was
Exposed to Mace and Was Not Allowed His Inhaler
In Ground Eight, Petitioner argues that his trial counsel was ineffective because she failed
to investigate and develop evidence that a few hours before Petitioner made his written
confession to police, he was exposed to mace during an incident in the Florissant jail and was
denied his asthma inhaler. In his Reply, Petitioner states that in the late hours of October 4th,
2007, or the early hours of October 5th, 2007, officers sprayed mace to subdue an inmate in the
cell next door to Petitioner’s cell, and the fumes overwhelmed the entire jail housing area and
triggered Petitioner’s asthma. Petitioner states that he requested his asthma rescue inhaler, and an
officer refused to give it to him. He states that at roughly 10:00 a.m. on October 5, 2007, he was
taken back into an interview room by Detective Lewis, and Petitioner again requested his rescue
inhaler. Petitioner states that Detective Lewis told him, “I will give you what you want if you
give me what I want, the statement,” after which Petitioner made his confession. Petitioner
argues that his trial counsel should have obtained the names of his fellow inmates at the jail
where mace was sprayed and presented it at his suppression hearing to show that his confession
was not voluntary. The motion court denied this claim, finding that Petitioner had not shown any
facts as to the value of the information requested and could not show prejudice from his
counsel’s alleged error. Resp’t Ex. L, at 132-34.
The Court cannot say that the motion court’s denial of this claim was objectively
unreasonable. At the motion hearing, Petitioner’s trial counsel testified that she did not
26
remember Petitioner making any suggestions about witnesses for the suppression hearing, and it
was not objectively unreasonable for the motion court to find that Petitioner’s trial counsel did
not show deficient performance by not contacting those witnesses. Resp’t Ex. K, at 12. In
addition, with regard to prejudice, Petitioner has not provided evidence that there is a reasonable
probability that the outcome of the suppression hearing or the trial would have been different if
his counsel had contacted the witnesses Petitioner identifies. First, Petitioner has not shown that
the witnesses he now identifies would have testified in a manner that would support his version
of events. Second, even if these inmates had testified that Petitioner was exposed to mace in the
early hours of October 5th, they would not have been in a position to testify about whether
Petitioner was still suffering from an asthma attack several hours later when he was interrogated
by Detective Lewis in the interview room, nor could they have testified in support of Petitioner’s
contention that in the interview room, Detective Lewis withheld Petitioner’s asthma inhaler on
the condition that he make a statement. Moreover, in light of the detailed and lengthy nature of
Petitioner’s confession, 8 it appears very unlikely that the presentation of evidence that Petitioner
had been exposed to mace several hours earlier would have led the trial court to find this
confession was involuntarily made. Finally, even assuming that the confession had been
suppressed, it was not objectively unreasonable for the motion court to find that the outcome of
Petitioner’s trial would not have been different. Although the confession was a significant piece
of evidence against Petitioner, there was a great deal of other evidence of guilt. The other
8
Petitioner’s confession was nine pages long and consisted of a very detailed handwritten
account of his employment problems that began over a year before the robbery, the gambling
problem he developed, the large debts he incurred from gambling, his problems with his wife, his
attempts to get help with money from his family members, his concerns that he needed money
for his children, his decision that he needed to “do whatever it takes to make sure they are taken
care of,” his actions and thoughts before and during the robbery, the bills he paid using the
money he obtained from the robbery, and his resolution never to break the law again. Resp’t Ex.
G.
27
evidence included, but was not limited to, the identifications of Petitioner as the robber by the
bank teller, his children’s babysitter, and his ex-wife; and the video surveillance footage of the
robbery. It was not objectively unreasonable for the motion court to decide that there is no
reasonable probability that, but for this error, the outcome of Petitioner’s trial would have been
different.
For all of the above reasons, Ground Eight is denied.
9. Ground Nine—Ineffective Assistance of Counsel Based on Failure to
Produce Transcripts from Petitioner’s Dissolution Hearing
In Ground Eight, Petitioner argues that his trial counsel was ineffective because she failed
to present transcripts from his dissolution hearing to support his contention that his ex-wife had
committed perjury during that hearing. Petitioner asserts that this evidence would have supported
his position that his ex-wife was a biased witness and was not capable of giving reliable
testimony during Petitioner’s trial. The motion court denied this claim, finding that Petitioner’s
trial counsel’s cross-examination and re-cross-examination of Petitioner’s ex-wife at trial showed
performance well above the required standard. Resp’t Ex. L, at 134-35. The motion court also
found that Petitioner had failed to show that his ex-wife had allegedly perjured herself during
their divorce proceeding or that had the evidence sought been brought before the jury, the result
of the trial would have been different. Resp’t Ex. L, at 134-35.
The motion court’s denial of this claim is supported by the record and did not involve an
unreasonable application of Strickland to the facts of this case. In his Reply, Petitioner asserts
that during the dissolution hearing, Ms. Haidul gave inaccurate testimony regarding the amount
of a home refinancing and regarding whether she was on the mortgage of their home. This
alleged inaccuracy is unrelated to the issues in this case and would have had little or no value in
impeaching Ms. Haidul’s testimony. Moreover, in cross-examining Ms. Haidul, Petitioner’s trial
28
counsel elicited evidence of bias by asking Ms. Haidul about her marital problems with
Petitioner, their dissolution proceedings, and their custody dispute. Resp’t Ex. D, at pp. 249-53,
258-59. Moreover, even assuming, arguendo, that Ms. Haidul’s testimony had been completely
undermined and rendered useless, the other evidence against Petitioner (the two identifications,
the video, and the confession) was still overwhelming. The motion court reasonably determined
that Petitioner could not show either deficient performance or prejudice.
For all of the above reasons, Ground Nine is denied.
C. Claims Presented in the Motion for Post-Conviction Relief but Not in the
Appeal: Grounds Five and Ten
Ground Five (ineffective assistance of counsel based on failure to object to Cathy
Bienkowski’s testimony) and Ground Ten (ineffective assistance of counsel based on failure to
impeach Jessica Hernandez’s testimony) are procedurally defaulted due to Petitioner’s failure to
raise those claims in his initial post-conviction motion. Even assuming, arguendo, that Petitioner
could show cause and prejudice sufficient to excuse his procedural default of either claim, the
Court finds that that both claims are without merit.
1. Ground Five—Ineffective Assistance of Counsel Based on
Failure to Object to Testimony of Cathy Bienkowski
In Ground Five, Petitioner argues that his trial counsel was ineffective because she failed
to object to testimony by state witness Cathy Bienkowski, the babysitter for Petitioner’s children,
that she received $720 in cash from Petitioner. Petitioner argues that this cash was given to Ms.
Bienkowski ten to fourteen days before the robbery at issue took place and was evidence related
to a different robbery. Petitioner asserts that by failing to object to this evidence, trial counsel did
not preserve the matter for appellate review.
29
Even assuming, arguendo, that Petitioner could show deficient performance, he cannot
show that he was prejudiced by this deficient performance. The fact that Petitioner made a cash
payment to Ms. Bienkowski was a very minor part of the State’s case. In light of the other
overwhelming evidence against him (including three identifications, surveillance footage of the
robbery, and a confession), Petitioner cannot establish that had his trial counsel objected to this
evidence regarding cash payments, the outcome of his trial would have been different. Nor can
Petitioner show that had this issue been preserved for appeal, his appeal would have been
successful.
For all of the above reasons, Ground Five is denied.
2. Ground Ten—Ineffective Assistance of Counsel Based on
Failure to Introduce Evidence to Impeach Jessica Hernandez’s
Testimony
In Ground Ten, Petitioner asserts that his trial counsel was ineffective for not introducing
evidence that would have shown that the testimony of bank teller Jessica Hernandez was
unreliable. Petitioner asserts that his trial counsel should have presented evidence of
discrepancies between the description of the robber given by Ms. Hernandez and Petitioner’s
actual physical characteristics, and that Petitioner’s trial counsel should have pointed out that the
robbery only lasted twenty-five seconds and so Ms. Hernandez could not have spent much time
looking at his face because her identifications related to the suspect’s clothes.
Petitioner cannot show either that Petitioner’s counsel’s performance was deficient or
that the alleged error prejudiced him. Much of the evidence Petitioner cites was introduced at
trial. On cross-examination, trial counsel asked Ms. Hernandez about her description of the
robber, including her description of him as having brown eyes. Resp’t Ex. C, at 140. Trial
counsel noted that Petitioner has green eyes. Resp’t Ex. C, at p. 140. Petitioner’s ex-wife also
30
testified that Petitioner has green eyes. Resp’t Ex. D, at p. 257. The jury heard Petitioner’s
statement to the police that the robbery took twenty to thirty-seconds, and the videotape showing
the robbery itself was in evidence and was published to the jury. Resp’t Ex. D, at 288; Resp’t Ex.
C, at 154-56. Petitioner’s trial counsel adequately ensured that information undermining Ms.
Hernandez’s identification was introduced at trial, and her failure to present more or cumulative
evidence did not constitute deficient performance. Moreover, in light of the other overwhelming
evidence against Petitioner (principally the two other identifications and the confession),
Petitioner cannot establish a reasonable probability that the introduction of additional evidence
calling into question Ms. Hernandez’s identification would have changed the outcome of his
trial. Thus, Petitioner cannot establish either prong of Strickland.
For all of the above reasons, Ground Ten is denied.
IV.
CONCLUSION
For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28
U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28
U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the
Petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);
Tiedman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing that
issues are debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citation
omitted). The Court finds that reasonable jurists could not differ on Petitioner’s claims, so the
Court will not issue a certificate of appealability. Accordingly,
31
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of September, 2017.
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?