Hill v. Cassady et al

Filing 16

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Judgment will issue forthwith. Signed by Magistrate Judge Noelle C. Collins on November 10, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CRAIG HILL,
Petitioner,
v.
JAY CASSADY,
Respondent,

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No. 4:14CV843 NCC

MEMORANDUM AND ORDER
This matter is before the Court for review and final disposition of a petition for writ of
habeas corpus filed by Craig Hill (“Hill” or “petitioner”) pursuant to 28 U.S.C. § 2254.1
Petitioner seeks to overturn his conviction for first-degree murder because of alleged trial court
error and ineffective assistance of counsel. Respondent contends that several of petitioner’s
claims are procedurally defaulted and that all of his claims are meritless. Respondent is correct,
and the Court will dismiss this action without further proceedings.
Background
The Missouri Court of Appeals, Eastern District, summarized the facts as follows:
On June 28, 2005, in the early afternoon, Doanita Whittier (Whittier) got into an
argument with some women outside a store in the City of St. Louis. Later that
afternoon Whittier's boyfriend, Jason Holman (Holman), was walking to the store
where the argument had occurred when a man got off a bus nearby. Holman did
not know the man but identified [Hill] in court as the man who exited the bus.
[Hill] began talking to the women that Whittier had argued with. The women
knew that Holman was dating Whittier and were pointing at Holman while talking
with [Hill]. As this was happening, two men noticed that [Hill] had a gun, and
grabbed [Hill] and held him up against a fence. Holman and a third man were able
to get the gun away from [Hill]. After [Hill] was disarmed, Holman and [Hill]

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The parties consented to the jurisdiction of the undersigned magistrate judge to resolve
this proceeding. 28 U.S.C. § 636(c).

fought briefly. Holman "got the best of" [Hill] and the fight was broken up.
Holman returned home after the fight.
Later that afternoon, Whittier and her friends, Erica Alexander (Alexander),
Sabrina Chase (Chase) and Jaronda Acres (Acres), were at Acres' aunt's house
visiting. The women left the house to walk to some stores nearby. Acres and
Alexander went to one store, while Whittier and Chase went to a different store.
Outside the store, Whittier got into an argument with some women regarding the
argument that had occurred earlier that day. After an older woman came outside
and calmed everything down, Whittier, Alexander, Chase and Acres went back to
Acres' aunt's house.
Around 4:00 or 5:00p.m., Holman and Whittier met up with Acres, Alexander,
and Chase at the bus stop at the corner of St. Louis Avenue and Sarah Street. The
group sat at the bus stop talking for a several hours.
Around 8:00p.m., as it was starting to get dark, [Hill] came around the corner and
started shooting into the group. The first shot hit Holman in the chest and a
second shot hit him in the arm. Alexander and Holman ran across the street onto
the front porch of a house, where Holman blacked out. Although Acres had been
shot three times in the leg, she and Chase ran to a gangway between two houses.
Whittier collapsed onto the street after being shot twice, once in the chest and
once in the arm. Whittier died as a result of the gunshot wound to her chest.
On July 7, 2005, police contacted Alexander and Chase and asked them to view a
lineup. Both women identified [Hill] in the lineup as the shooter.
At trial, Alexander testified that although it was getting dark outside, there was
enough artificial light in the area for her to see the shooter. Alexander stated the
shooter was a black male with a light or caramel complexion, was 19-20 years
old, was 5'7" to 5'9" tall, had a slim build and had his hair in twisties. Alexander
testified that the shooter was not wearing anything to hide his face. Alexander
identified [Hill] at trial as the man who shot at her and her friends.
Alexander testified that during the lineup the police told her to look at the men
and to "see if [she saw] a person who was the shooter." Alexander testified she
recognized [Hill] as the shooter "right away." Alexander stated the police did not
make her try to pick someone out, and she did not feel pressure from anyone to do
so. Alexander stated out of the five men in the lineup, two of the men were too
tall to be the shooter and one man did not have his hair in twisties or braids.
Alexander stated the detective specifically directed her not to base her
identification on the men's hairstyles. Alexander testified that the men's hairstyles
did not have much effect on her identification and that she picked [Hill] because
she recognized him as the shooter.
Chase testified that although it was getting dark, the street lights had come on and
there was enough light for her to see the shooter clearly. Chase testified that the

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shooter was light skinned, skinny, a couple of inches taller than her, and had his
hair in medium sized twisties. Chase identified [Hill] as the shooter in court.
Chase testified that during the lineup the police officer did not point anyone out to
her or try to make her pick someone out of the lineup. Chase testified the officer
instructed her to look to see if she saw the person she thought did the shooting but
not to worry if she did not see him. Chase testified she identified [Hill] as the
shooter because she recognized him by his face. Chase stated she identified [Hill]
in the lineup because she saw him at the scene, not because he matched the
description she had given to police.
Acres testified that the shooter was a black male, with twisties in his hair, but that
she did not get a good look at him. Acres viewed a photo array which included a
photograph of [Hill]. Acres pointed [Hill] out in the photo array and told
detectives that she had seen [Hill] in her neighborhood prior to the shooting.
Acres stated she did not get a good enough look at the shooter to identify him.
Holman identified [Hill] in court as the same man he fought with briefly the day
of the shooting and who had shot him.
Homicide Detective Jody Ballman (Ballman) testified that Alexander described
the shooter as a black male with a light complexion, 5'8" to 5'9" tall, skinny, and
wearing medium braids in his hair. Ballman stated that Chase described the
shooter to police as being 19 to 20 years old, with a light complexion, 5'6" to 5'7"
tall, skinny, with medium length twisties in his hair. Ballman testified that after
[Hill] was arrested, the police attempted to find four other people in custody that
looked similar to [Hill] that were willing to participate in the lineup.
[Hill] did not present any witnesses at trial. At the close of the evidence, the trial
court addressed [Hill]'s Motion to Suppress Identifications which had been filed
prior to trial and had been taken with the case. [Hill] alleged that the identification
procedures used by police during the physical and photo lineups were unduly
suggestive. The court found that although the men in the lineup had different
characteristics, they were all African-American males of the same age and were
sufficiently similar for the lineup to be acceptable. The court denied the motion,
finding that the witnesses had an independent opportunity to view the events and
that the police procedures were permissible.
...
The jury found [Hill] guilty on all charges, including first-degree murder, two
counts of first-degree assault, and three counts of armed criminal action. [Hill]
filed a Motion for Judgment of Acquittal, or in the Alternative for a New Trial,
but did not include issues related to the identification testimony or the propriety of
the State’s closing argument. The trial court denied the motion, and on November
20, 2008, the trial court sentenced [Hill] to a term of life without the possibility of

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probation or parole on the first-degree murder conviction and to concurrent terms
of life on the remaining convictions.
Resp’t Ex. E at 2-6 (Mem. Supplementing Order Affirming J. Pursuant to Rule
30.25(b)).
On direct appeal, petitioner argued that (1) the trial court erred in denying his motion to
suppress identifications, and in allowing testimony regarding the pretrial lineup and in-court
identifications of him by Erica Alexander and Sabrina Chase; and (2) the trial court plainly erred
in allowing the prosecutor to argue in closing that the evidence was uncontradicted and
uncontroverted in violation of his Fifth Amendment right to stay silent. Id. at 6-7. The Missouri
Court of Appeals found that the grounds were not preserved for appellate review and, therefore,
reviewed them for plain error. Id. at 7. After review, the appellate court found no plain error
and affirmed the conviction and sentences. Id. at 8-12.
Petitioner filed a timely motion for postconviction relief under Rule 29.15 of the Missouri
Court Rules. Resp’t Ex. F at 3 (Legal File). The motion court denied relief without holding an
evidentiary hearing. Id. at 3.
On appeal from the denial of postconviction relief, petitioner argued that (1) trial counsel
was ineffective for failing to investigate and call Courtney Woods and Josephine Woods to
testify at trial because they would have provided him with an alibi; and (2) trial counsel was
ineffective for refusing to allow him to testify at trial. Resp’t Ex. I at 12-13 (Appellant’s
Statement, Br., and Argument). The Missouri Court of Appeals, Eastern District, applied the
Strickland test to both of petitioner’s claims, and it found that petitioner had failed to
demonstrate that trial counsel was ineffective. Resp’t Ex. at 3-8.
Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254
on May 1, 2014.

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Grounds for Relief
1. Trial, appellate, and postconviction counsel were ineffective for failing to
present evidence of his actual innocence through witnesses who were present in
the area of the shooting but did not see Hill there.
2. Trial counsel was ineffective for failing to investigate and call his alibi
witnesses.
3. Trial counsel was ineffective for advising him not to testify at trial.
4. Trial counsel was ineffective for failing to object to a verdict director based on
transferred intent.
5. The trial court erred when it failed to suppress petitioner’s identification from
the lineups.
6. Trial counsel was ineffective by failing to investigate and impeach State
witness Jason Holman with his prior misdemeanor conviction of driving while
suspended.
7. Trial counsel was ineffective due to the cumulative effect of his errors.
Procedural Default
To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly
presented the substance of the claim to the state courts, thereby affording the state courts a fair
opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v.
Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been
fairly presented when a petitioner has properly raised the same factual grounds and legal theories
in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that
have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted
may not give rise to federal habeas relief unless the petitioner can demonstrate cause and
prejudice for the default. Id. “[T]he existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective factor external to the defense impeded

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counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986).
Standard
“In the habeas setting, a federal court is bound by the AEDPA to exercise only limited
and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751
(8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner
unless the state court’s adjudication of a claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent if “the
state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or .
. . decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000).

A state court decision is an unreasonable

application of clearly established federal law if it “correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08. Finally, a
state court decision involves an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings only if it is shown that the state court’s presumptively
correct factual findings do not enjoy support in the record. 28 U.S.C. §2254(e)(1); Ryan v.
Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
Federal habeas review of an ineffective assistance of counsel claim is “doubly
deferential.” Knowles v. Mirzayance, 556 U.S. 111 (2009). First, a petitioner must overcome the
high bar of Strickland v. Washington, 466 U.S. 668 (1984), by showing that (1) counsel’s

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performance fell below an objective standard of reasonableness; and (2) petitioner was
sufficiently prejudiced such that “the result of the proceeding would have been different.” Id. at
688, 694.

Second, under 28 U.S.C. § 2254, petitioner must show that the state court’s

adjudication of his ineffective assistance claim was “unreasonable.” Harrington v. Richter, 562
U.S. 86, 105 (2011). Both the Strickland standard and the standard set forth in § 2254 are highly
deferential. Ultimately, “[t]he question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id. at 788.
1.

Ground One

In ground one, petitioner argues that counsel was ineffective for failing to call as
witnesses Mary Hill, Adrian Hill, Dana Merriweather, Rochelle Smith, “as well as alibi
witnesses Josephine, Anthony, and Courtney Woods, and the testimony of Craig Hill, that would
have demonstrated Hill’s actual innocence.”
Respondent argues that ground one is procedurally defaulted. Petitioner responds that the
claim could have been presented to the state courts with more clarity but that the “substance” of
the claim was presented to the state courts.
In his appeal from the denial of postconviction relief, petitioner argued that trial counsel
was ineffective for failing to investigate and call Courtney and Josephine Woods, who would
have provided him with an alibi. Petitioner testified during his deposition that Courtney and
Josephine Woods had told his mother that he was at their house at the time the shooting
occurred. Resp’t Ex. G at 9 (Dep. Tr.). He told counsel about the witnesses and gave him their
address and phone number. Id. Counsel endorsed them as witnesses. Id. at 8-9; Resp’t Ex. B at
27 (Legal File). During his deposition, counsel testified that he knew the address and phone
number for the witnesses. Resp’t Ex. H at 10 (Dep. Tr.). He further testified that he called them

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but they did not call him back. Id. He said the did not go to their house to attempt to talk to
them. Id.
In denying relief on this claim, the Missouri Court of Appeals discussed the problems
with petitioner’s alleged witnesses:
Trial counsel testified [during the evidentiary hearing] that [Hill] and his family
had provided a variety of inconsistent alibis to police and to himself. [Hill]
initially told police that on the night of the shooting, he was with his brother and
his brother's friends; [Hill]'s mother told police that he was with her and other
people on the night of the shooting; [Hill]'s aunt told police he was with her and
some other people on the night of the shooting. [Hill]'s mother also told counsel
that there were witnesses who could say that [Hill] was elsewhere at the time of
the shooting. Trial counsel arranged for the grand jury to hear [Hill]'s alibi
witnesses, but [Hill]'s mother did not give counsel the names of these witnesses,
and she did not show up for the grand jury session with the witnesses when it was
initially scheduled or when it was rescheduled. [Hill]'s mother later gave trial
counsel the names, addresses, and phone numbers of the Woods witnesses, who
were two new alibi witnesses, and counsel endorsed them as witnesses. However,
counsel was unable to speak to either witness because they would not return his
phone calls. On the morning of [Hill]'s trial, [Hill]'s mother showed up with a new
set of witnesses and said they were the "real" witnesses, indicating that the Woods
witnesses whom counsel had endorsed were not the "real" witnesses. Counsel was
concerned about calling any of [Hill]'s alibi witnesses once he was presented with
the "real" witnesses whom he had not endorsed. Counsel said that if he had called
the "real" witnesses, the prosecutor would have "rammed that down his throat."
[Hill] testified that on the day before [Hill]'s trial was initially scheduled to start,
he and counsel discussed calling witnesses, and during that conversation, he gave
counsel the names of the Woods witnesses, their addresses, and their phone
numbers.
In its Conclusions of Law and Order, the motion court recited that the parties
were to provide testimony of witnesses by deposition, that [Hill] and counsel were
deposed, but that the Woods witnesses failed to appear for scheduled depositions
on more than one occasion. The motion court found that counsel was not
ineffective in his pursuit of alibi witnesses. The court recited trial counsel's
testimony about his efforts to secure alibi witnesses, including the Woods
witnesses and the conflicting alibis. The court concluded from this testimony that
counsel was not ineffective, and counsel's decision to not call alibi witnesses was
reasonable. It also concluded that counsel's decision to not call a witness is
virtually unchallengeable, particularly when the possibility exists of a fabricated
alibi or that the witness will present perjured testimony. The court further found
that [Hill] had not presented credible testimony that supported an alibi or that

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there were alibi witnesses who were available and would have been willing to
testify at trial.
Resp’t Ex. K at 4-5.
The appellate court applied the Strickland standard and found that petitioner had failed to
show that petitioner “failed to show that [Courtney or Josephine Woods] could have been
successfully contacted or would have testified if called.” Id. at 6. The court noted that they had
refused to return counsel’s calls and refused to appear for their depositions or the motion hearing.
Id. The court also noted that counsel was concerned about calling any of petitioner’s witnesses
because “the prosecutor would have ‘rammed them down his throat.’’ Id. at 4.
The Missouri Court of Appeals’ recitation of the facts is supported by the record.
Petitioner failed to demonstrate that counsel was ineffective, and he has not shown that the state
court’s decision was contrary to clearly established federal law. As a result, petitioner is not
entitled to relief on ground one of the petition. Moreover, to the extent that petitioner is
attempting to bring claims he did not bring in his postconviction appeal – such as his claim that
counsel should have investigated and called Mary Hill, Adrian Hill, Dana Merriweather,
Rochelle Smith – his claims are procedurally barred, and he has not shown cause or prejudice for
the default.
2.

Ground Two

In ground two, petitioner argues that trial counsel was ineffective for failing to investigate
and call his alibi witnesses.
This claim is duplicative of ground one. Petitioner mentions that his mother told counsel
about some other possible witnesses she knew of who had seen him at the time of the shooting,
but neither petitioner nor his mother told counsel who the witnesses were or where they could be

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found. This claim is wholly unsupported by the record, and petitioner failed to raise it in his
postconviction appeal. Therefore, this claim is both meritless and procedurally defaulted.
3.

Ground Three

In ground three, petitioner argues that trial counsel was ineffective for advising him not
to testify at trial. Respondent contends that this claim is refuted by the record.
After the close of the State’s evidence, the following colloquy occurred between the trial
court and petitioner:
THE COURT: All right. Let the record reflect that we’re here in the courtroom.
The jury is not present. Prosecution and defense are present. The State has rested
and we’re at the juncture where the strategic decisions have to be made by the
defense whether or not to put on any evidence. Obviously, the defendant has an
absolute constitutional right under our Federal and state constitutions not to testify
and no mention can be made of the fact that he did not testify by the State.
However, he has also the right to testify and the right is owned exclusively by the
defendant. He can receive advice from learned counsel. He can receive advice
from family members or anyone else whose opinion he values. He can also
reflect on it at length, but ultimately the decision is the defendant’s and the
defendant’s alone. So, at this time, Mr. Hill, you can just stay where you are.
Please raiser your right hand.
CRAIG HILL, duly sworn by the Court, testified as follows:
THE COURT: Okay, you can put your hand down. . . . You just heard what I have
just said about your right either to testify or not testify, you understand that, don’t
you?
DEFENDANT: Yes.
THE COURT: And you understand that the right which is yours and yours alone,
you understand that?
DEFENDANT: Yes.
THE COURT: And that you should listen to the advice of people whose opinion
you value, you understand that?
DEFENDANT: Yes.

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THE COURT: And that you’ve had – you have an attorney on your right and an
your left, you have two attorneys here, have you discussed this matter with your
attorneys.
DEFENDANT: Yes.
THE COURT: All right. Have you sufficient time to reflect on it in your own
mind?
DEFENDANT: Yes.
THE COURT: All right. So, what ultimately is your decision? Do you wish to
testify or do you wish not to testify?
DEFENDANT: Not to testify.
Resp’t Ex. A at 408-09 (Trial Tr.).
The Missouri Court of Appeals denied this claim, citing the Strickland standard, stating,
“Here, [petitioner] admitted he knew he had the right to testify and it was his decision, and
counsel’s advice not to testify constituted sound trial strategy because of [petitioner’s]
vulnerability on cross-examination in light of his multiple conflicting alibis.” Resp’t Ex. K at 8.
The appellate court’s determination of the facts is supported by the record. Petitioner
testified that it was his strategic decision not to testify. And the court applied the correct federal
standard. As a result, petitioner is not entitled to relief on this ground.
4.

Ground Four

In ground four, petitioner argues that counsel was ineffective for failing to object to a
verdict director based on transferred intent. He contends that because the indictment only
charged him with first-degree murder, the verdict director on transferred intent was improper.
Respondent argues that this claim is procedurally barred and meritless.
Petitioner raised this ground in his motion for postconviction relief. However, he did not
raise it on the appeal thereof. He argues that, nevertheless, he fairly presented his claim to the

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state courts. Alternatively, he argues that the procedural bar is excused because postconviction
counsel was ineffective for not bringing it on appeal. Petitioner is incorrect.
Issues not raised before the Missouri appellate court, in either a direct appeal or in the
appeal of the denial of a Rule 29.15 motion, as appropriate, are procedurally defaulted and
cannot be raised pursuant to § 2254, absent a showing of cause and prejudice. See Wemark v.
Iowa, 322 F.3d 1018, 1020–21 (8th Cir. 2003).
Petitioner’s claim that postconviction counsel was ineffective failing to bring this claim
on appeal is wholly conclusory, and does not allege any facts that might demonstrate his claim.
Ground four is procedurally defaulted, and petitioner is not entitled to relief on this ground.
Moreover, this claim arises under state law and is not cognizable in federal habeas relief.
Finally, in discussing this ground, the motion court stated: “[Petitioner] has cited no legal
authority that this is not permitted and the Court finds the claim without merit.” Resp’t Ex. F at
123. Petitioner has not cited any cases from the United States Supreme Court demonstrating that
he is entitled to relief on this ground. For each of these reasons, petitioner is not entitled to relief
on this ground.
5.

Ground Five

In ground five, petitioner argues that the trial court erred when it failed to suppress
petitioner’s identification from the lineups.

Petitioner contends that the lineup was

impermissibly suggestive because some of the other persons in it were taller than petitioner or
did not have the same hairstyle. Petitioner contends that the Court should review this claim de
novo.
On direct appeal, the court found that petitioner had failed to preserve the issue for
appeal. Resp’t Ex. E at 7. Petitioner asked the court to review it for plain error, and the court

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did so. Id. “Under plain error review, this Court must first determine whether the trial court
actually committed an evident, obvious, and clear error that affected a substantial right. Then,
we must determine whether the error resulted in a manifest injustice or a miscarriage of justice.
Id. The appellate court found that petitioner had failed to show that the “pre-trial identification
procedures were impermissibly suggestive . . .” Id. at 10. The court also found that petitioner
had failed to show prejudice because the witnesses identified him in court as well. Id.
All of the participants were African-American men of approximately the same
age. The trial court found that the men were sufficiently similar for the lineup to
be acceptable. The record indicates that the police made reasonable efforts to find
people that were physically similar to [petitioner] for the lineup and [petitioner]
has failed to demonstrate otherwise.
Alexander and Chase testified that there was sufficient light for them to clearly
see the shooter. Both women testified that they identified [petitioner] in the
lineup because they recognized [petitioner] as the shooter. Both women also
testified that the police neither pointed anyone out to them nor pressured them to
make an identification.
Id. at 9.
When a state court reviews a claim for plain error, the district court must review the state
court’s claim with the “deferential lens” of the AEDPA. Shelton v. Purkett, 563 F.3d 404, 408
(8th Cir. 2009).
The Missouri Court of Appeal’s decision that there was no manifest injustice was not
unreasonable. The witnesses testified that they clearly saw petitioner at the time of the incident.
They stated that the police did not coerce them into identifying anyone in the lineup. And they
recognized petitioner in Court. As a result, petitioner is not entitled to relief on this ground.
6.

Ground Six

In ground six, petitioner argues that trial counsel was ineffective by failing to investigate
and impeach State witness Jason Holman with his prior misdemeanor conviction of driving while
suspended. Petitioner admits that he did not raise this claim in his motion for postconviction
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relief. He says cause and prejudice exists because he was in prison when the motion was filed
and he did not have access to the State’s criminal records.
Respondent argues that this claim is procedurally barred and that petitioner cannot show
Strickland prejudice because trial counsel impeached Holman with a prior felony conviction.
Respondent is correct.
Because he did not present this claim to the state courts, this claim is procedurally barred.
He cannot show prejudice because nothing external to the defense prevented him from bringing
this claim.
Furthermore, this claim is meritless. On cross-examination, trial counsel asked Holman
if he had ever been convicted of a felony. Resp’t Ex. A at 311. Holman replied that he had been
convicted for carrying a concealed weapon. Id. Petitioner has failed to show that, had trial
counsel also elicited that Holman had a misdemeanor offense as well, the jury would have
returned a not guilty verdict. As a result, petitioner is not entitled to relief on this ground.
7.

Ground Seven

In ground seven, petitioner argues that trial counsel was ineffective due to the cumulative
effect of his errors.
Cumulative error is not recognized under clearly established federal law. See Middleton
v. Roper, 455 F.3d 838, 851 (8th Cir. 2006). As a result, petitioner is not entitled to relief on this
ground.
For these reasons, petitioner is not entitled to federal habeas relief.

Furthermore,

petitioner has failed to make a substantial showing of the denial of a constitutional right, which
requires a demonstration “that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right.” Khaimov v. Crist, 297 F.3d 783, 785 (8th

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Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of appealability. 28
U.S.C. ' 2253(c).
Accordingly,
IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED, and
this action is DISMISSED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A separate Judgment will issue forthwith.
Dated this 10th day of November, 2016.

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

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