Rowe v. Villmer
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the Petition of Hernando D. Rowe for habeas corpus relief [ECF No. 1] is DENIED. IT IS FURTHER ORDERED that the Petition may be denied without the need for an evidentiary hearing. IT IS FURTHER ORDE RED that a Certificate of Appealability will not be issued by this Court. IT IS FURTHER ORDERED that Petitioner's motion for a ruling on his petition [ECF No. 15] is DENIED as moot. A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by Magistrate Judge John M. Bodenhausen on 1/20/16. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
HERNANDO D. ROWE,
No. 4:14 CV 1108 JMB
MEMORANDUM AND ORDER
Petitioner Hernando D. Rowe (“Rowe”) brings this pro se petition, seeking a Writ of
Habeas Corpus, pursuant to 28 U.S.C. § 2254. [ECF No. 1] Also pending before the Court is
Rowe’s pro se motion for a ruling on his petition, as well as two memoranda he filed in support
of his motion for a ruling. [ECF Nos. 15-17] All matters are pending before the undersigned
United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). The
Court concludes that the matter may be resolved on the existing record. The Court further
concludes that the Petition will be denied and that no certificate of appealability will be issued.
I. BACKGROUND & PROCEDURAL HISTORY
Factual Background Trial 1
On June 18, 2010, a jury in New Madrid County, Missouri, convicted Rowe of statutory
sodomy in the first degree. Rowe was acquitted on charges of sexual misconduct and enticement
of a child. Prior to trial, the prosecutor dismissed two charges of sexual misconduct of a child.
The charges stemmed from two incidents that occurred in August 2009. At that time, Rowe
The facts are taken primarily from the Missouri Court of Appeals decision, dated
January 13, 2012. (Resp. Exh. H) See State v. Rowe, 363 S.W.3d 114 (Mo. Ct. App.), cert.
denied, 133 S. Ct. 451 (2012).
lived on Montgomery Street in Sikeston, Missouri. Rowe lived with his wife, a daughter, and his
stepdaughter “T.B.” In late August 2009, Rowe removed T.B. from school, purportedly for an
appointment, although that was not true. Sometime after Rowe and T.B. left the school, T.B.
jumped out of Rowe’s truck and ran to a delivery truck nearby. The delivery truck driver
dropped off T.B. at a local shopping center. T.B. accused Rowe of trying to make her touch his
The police investigated the matter and learned that, on August 2, 2009, which was T.B.’s
birthday, T.B. was home playing cards and Rowe “pulled his penis out of his pants and told T.B.
to ‘play with this.’” (Resp. Exh. H at 2) T.B. refused and Rowe “grabbed T.B. by the neck and
pushed her against the wall,” and told her to “touch his penis.” (Id.) T.B. told an investigator
that Rowe made her touch his penis on her birthday. (Id.)
At trial, T.B. testified for the State and Rowe testified in his own defense.
Unsurprisingly, their testimony was in conflict as to the events of August 2, 2009. During crossexamination, the State asked Rowe if it was his testimony that T.B. had made up her story, and
whether Rowe was the only person telling the truth. (Resp. Exh. A at 366, 368, 370)
As Rowe raises several venue arguments before this Court, it would be useful to recap
some additional procedural history regarding Rowe’s charges and trial. Rowe was initially
charged by criminal complaint in Scott County, Missouri. The prosecutor then filed a felony
information in December 2009. Rowe requested a change of venue and his case was transferred
to Stoddard County. (Resp. Exh. B at 27, 32; Resp. Exh. H. at 3) The parties then stipulated to
another change of venue to New Madrid County, Missouri. (Resp. Exh B. at 37; Resp. Exh. H at
3) The prosecutor filed an amended information in New Madrid County. Although Rowe filed
numerous, relevant pretrial motions, he did not file any motions challenging venue. (See, e.g.,
Resp. Exh. B at 51-57, 78-79) The case was ultimately tried in New Madrid County.
The record indicates that part of Sikeston, Missouri, is in Scott County and part is in New
Madrid County. There is no present dispute that Rowe’s home, and therefore the location of the
August 2, 2009, incident, is in New Madrid County, Missouri. The charges against Rowe,
however, alleged that the August 2, 2009, incident occurred in Scott County, rather than New
Madrid County. Perhaps by pure happenstance, Rowe’s case was tried in the correct venue, even
if it was initially brought in an incorrect venue and included an incorrect venue allegation in the
charge. In fact, the venue error was not noticed or raised by Rowe prior to his trial. (Resp. Exh.
H at 3-4) Nonetheless, the venue “issue” has resulted in a great deal of post-trial litigation.
Although Rowe failed to raise an appropriate venue challenge before trial, during the trial
one police officer testified that Rowe’s residence was in Scott County and a detective testified
that the residence was in New Madrid County. (Resp. Exh. H. at 3) “Before closing arguments,
the State made an oral motion in limine to prevent [Rowe’s] counsel from arguing the issue of
venue to the jury because [he] had failed to raise the issue before trial.” (Id. at 4) The trial court
sustained the motion. Rowe filed a post-trial motion for judgement of acquittal raising, inter
alia, a venue argument. The trial court denied Rowe’s motion, noting that he had waived the
issue and that the case was, in fact, tried in New Madrid County, which would have been the
remedy had Rowe raised the issue pretrial. (Resp. Exh. B at 116-17; Resp. Exh. H at 4) Rowe,
had a prior felony weapon conviction, and the trial court sentenced him to fifteen years of
imprisonment. (Resp. Exh. B at 9)
Rowe appealed his conviction to the Missouri Court of Appeals, Southern District. Rowe
raised two points of error. The first point argued two interrelated issues regarding venue. The
second point alleged that the trial court erred in failing to instruct the jury on a lesser included
offense. The Court of Appeals denied both points. (Resp. Exh. H) Because Rowe does not raise
the lesser included offense issue before this Court, it is not discussed further herein.
Regarding venue, in his direct appeal, Rowe argued that venue was not proper in Scott
County, and that “the trial court was required by § 541.120 RSMo (2000) to certify the cause for
transfer to New Madrid County and discharge the jury without prejudice pursuant to § 541.130
RSMo (2000).” (Resp. Exh. H. at 4) The Missouri Court of Appeals concluded that Rowe
waived this issue by not timely raising the issue before the trial court. (Id.) The Missouri Court
of Appeals reviewed the issue under a plain error standard and concluded that Rowe was not
entitled to any relief because he could show no prejudice from the alleged error. The Court of
Appeals explained, “[a]ssuming arguendo that Scott County was an improper venue, the case
was transferred to New Madrid County by agreement of the parties prior to trial…. Rather than
causing any prejudice to Defendant, this procedure resulted in him being tried in the county
where he admits venue was proper.” (Id. at 5)
Rowe also argued that, because of the venue issue, the State failed to make a submissible
case and he was entitled to an acquittal. (Id.) The Missouri Court of Appeals rejected this
argument as well. Under Missouri law, “[l]ocation is not an essential element of the crime of
first-degree sodomy. See State v. Gains, 316 S.W.3d 440, 454 (Mo. App. 2010). Consequently,
the State was not required to prove that [Rowe’s] conduct occurred in Scott County.” (Id.) To
the extent that the pattern instruction included venue as an element of the offense, the instruction
was incorrect. (Id.) Thus, according to the Missouri Court of Appeals, even though Rowe
framed his argument as “involving the sufficiency of the evidence, he really [was] attempting to
assert a venue argument that he waived.” (Id.) The Court of Appeals further explained that a
failure to object to venue prior to trial “results in a waiver of the issue. ‘If [a] defendant does not
object, the case can be tried even though venue would not otherwise be correct.’” (Id. at 5-6
(quoting Gains, 316 S.W.3d at 150)
Ultimately, the Court of Appeals found that Rowe knew that the alleged crime occurred
in New Madrid County and that he “waived the venue issue by: (1) failing to timely object to
venue in Scott County; (2) moving for a change of venue to Stoddard County; and (3) agreeing
to a change of venue to New Madrid County…. As a result of [Rowe’s] own actions, he was
actually tried in a county where he admits venue was correct.” (Id. at 6)
Rowe filed a petition for rehearing and a request for transfer to the Missouri Supreme
Court. Both requests were denied. (Resp. Exh. I at 26)
State of Missouri Post-Conviction Motion Hearing
In February 2012, after his direct appeal was denied, Rowe filed a pro se motion for post-
conviction relief, pursuant to Missouri Rule 29.15. In his pro se motion, Rowe raised three
grounds for relief. First, Rowe argued that trial counsel was ineffective in failing to object to
venue in Scott County before trial and asking for a transfer to New Madrid County. Second,
Rowe argued that trial counsel was ineffective in failing to object to the jury instructions and
requiring the submission of a lesser included offense instruction on child molestation. Third,
Rowe argued that trial counsel was ineffective in failing to object to the State’s motion in limine
precluding him from arguing improper venue during closing arguments. (Resp. Exh. I at 7) The
Motion Court appointed counsel to assist Rowe. Appointed counsel filed an amended Rule
29.15 motion. Rowe’s amended motion alleged that trail counsel was ineffective in failing to
object when the State repeatedly asked Rowe during cross examination if he knew any reasons
why T.B. would have made up her testimony. (Id. at 46)
Upon Rowe’s request, the Missouri Supreme Court transferred Rowe’s Rule 29.15 to a
different judge than the one who presided over the trial. (Resp. Exh. I at 39) On August 27,
2013, the Motion Court denied Rowe’s Rule 29.15 motion on the existing record, without
conducting an evidentiary hearing. The Motion Court concluded that Rowe could not satisfy
either prong of the standard set forth for establishing a claim of ineffective assistance of counsel.
(Id. at 59-60; applying Strickland v. Washington, 466 U.S. 668 (1984))
Regarding Strickland’s performance prong, the Motion Court found that Rowe failed to
show that his attorney’s representation fell below the standard of a reasonably competent
attorney in allegedly failing to object to the State’s cross examination or Rowe, which included
asking Rowe if he knew any reasons why T.B. made up her testimony. In this regard, the Motion
Court considered the trial transcript and found that trial counsel had opened the door to this line
of questioning. Furthermore, trial counsel had, in fact, objected to questions posed by the State
and the objection was sustained when the State asked Rowe if he was the only witness telling the
truth. (Id. at 60) Thus, the Motion Court concluded that trial counsel’s trial strategy was
Regarding the prejudice prong under Strickland, the Motion Court concluded that, even
assuming trial counsel’s performance fell below that of a reasonably competent attorney, Rowe
could not show any prejudice from his attorney’s alleged failure to object during cross
examination. The Motion Court found that the evidence was overwhelming. (Id. at 60-61)
Accordingly, the Motion Court denied Rowe’s request for relief.
State of Missouri Post-Conviction Appeal
On May 22, 2014, the Missouri Court of Appeals affirmed the judgment of the Rule
29.15 Motion Court in a summary order accompanied by an unpublished, supplemental written
statement. (Resp. Exh. L) The Court of Appeals applied the Strickland standard for ineffective
assistance of counsel, as articulated in Masden v. State, 62 S.W.3d 661, 665 (Mo. App. Ct.
2001). (Id. at 2) The Court of Appeals concluded that, because Rowe could not satisfy the
prejudice prong, it need not consider whether trial counsel’s performance fell below that of a
reasonably competent attorney. (Id.) The Court of Appeals noted that, “[t]o establish prejudice,
[Rowe] must show that absent [the alleged] trial counsel error, there would be a reasonable
probability that the outcome of the proceeding would have been different.” (Id. at 3; citing
Harris v. State, 400 S.W. 3d 896, 898 (Mo. Ct. App. 2013))
Rowe argued that his trial counsel should have objected “two occasions during the State’s
cross-examination of Rowe. On each occasion, the State asked Rowe whether he thought the
victim, T.B., had made up her allegations of abuse.” (Id.) The Court of Appeals noted that,
under Missouri law, this type of questioning is “objectionable in that it is argumentative, …;
lacks probative value, …; and usurps the jury’s role of determining the credibility of the
witnesses, ….” (Id. at 3 n.5) Despite this rule of Missouri law, the Court of Appeals found that
Rowe’s argument was foreclosed by an earlier decision in Ballard v. State, 408 S.W.3d 327, 333
(Mo. App. Ct. 2013) (“In cases where the State’s witnesses and the defense witnesses are in
‘drastic disagreement’ … the jury necessarily has to determine the credibility of the witnesses in
order to render a verdict.” (internal quotations omitted). 2 (Resp. Exh. L at 3-4)
Applying Ballard to Rowe’s case, the Missouri Court of Appeals concluded as follows:
In the instant case, T.B. testified at trial that Rowe made her touch his penis on
her birthday. Rowe, 363 S.W.3d at 117. Rowe testified on his own behalf and
explicitly denied T.B.’s allegation. Id. at 121. Given this conflicting testimony,
only one account of each of the events at issue could be true, and the jury had to
determine the credibility of Rowe and T.B. in order to render a verdict. Like with
Ballard, the parties’ relative credibility was at issue, and, therefore, Rowe failed to
show how the complained-of questions affected the jury’s decision. See Ballard,
408 S.W.3d at 333. Without prejudice, Rowe cannot be successful on a claim of
ineffective assistance of counsel. The motion court did not clearly err in denying
Rowe’s Rule 29.15 motion….
“Ulitmately, the court found that ‘[b]ecause the parties’ relative credibility was already
at issue, Movant failed to show how the improper questions affected the jury’s decision.’
Ballard, 408 S.W.3d at 333.” (Id. at 4)
(Resp. Exh. L at 4)
II. FEDERAL HABEAS PETITION
On June 16, 2014, Rowe mailed the present petition pursuant to 28 U.S.C. § 2254.
Rowe’s petition identifies four grounds for relief. Three of Rowe’s grounds (Grounds One, Two,
and Four) focus on venue-related issues, and one ground focuses on a claim of ineffective
assistance of counsel (Ground Three). On June 24, 2014, the Court issued a scheduling order
which directed the State to show cause why Rowe’s petition should not be granted. On August
8, 2014, the State of Missouri filed a detailed response in opposition to Rowe’s petition.
Rowe first argues that venue was improper in Scott County Missouri. Second, Rowe
contends that he was denied his Due Process rights when the trial court refused to allow his
attorney to argue the issue of improper venue to the jury. Third, Rowe argues that he received
ineffective assistance because his trial counsel failed to object when the State’s attorney crossexamined him and asked Rowe I he knew why T.B. might have made up her testimony against
him. Fourth, Rowe argues that the trial court lacked jurisdiction and Count One was improperly
filed in Scott County.
In its opposition to Rowe’s petition, the State contends that Grounds One, Two, and Four
involve questions of state law and are not cognizable under § 2254. Regarding Rowe’s claim of
ineffective assistance of counsel, the State contends that the Missouri Court of Appeals decision
did not reflect an unreasonable determination of the facts or an unreasonable application of
The matter is fully briefed and the Court has considered the arguments of both parties.
The Court concludes that the matter may be resolved in the basis of the existing record and that
an evidentiary hearing is not required. For the reasons outlined below, Rowe’s petition will be
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) restricts the
Court’s review of Rowe’s claims. The Court’s review is both “limited and deferential.”
Lumholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under the AEDPA, a federal court may not
grant relief to a state prisoner’s claim unless the state court’s adjudication of the claim “was
contrary to, or involved an unreasonable application of, federal law as determined by the
Supreme Court, or was an unreasonable determination of the facts in light of the evidence
presented in state court.” Cole v. Roper, 623 F.3d 1183, 1187 (8th 2010) (citing 28 U.S.C. §
2254(d). “A state court decision may be incorrect, yet still not unreasonable ….” Id. (citing
McGehee v. Norris, 488 F.3d 1185, 1193 (8th Cir. 2009)). A federal court may grant habeas
relief “only if the state court decision is both incorrect and unreasonable.” Id.
“A state court decision is ‘contrary to’ the Supreme Court’s clearly established precedent
if the state court either ‘arrives at a conclusion opposite that reached by [the Supreme] Court on a
question of law’ or ‘decides a case differently than th[e] [Supreme] Court has on a set of
materially indistinguishable facts.’” Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th 2006)
(quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “A state court decision is an
‘unreasonable application’ of Supreme Court precedent if it ‘identifies the correct governing
legal principle … but unreasonably applies that principle to the facts of the prisoner’s case.’” Id.
“Further, ‘a determination of a factual issue made by a State court shall be presumed to be
correct’ in a federal habeas proceeding.” Cole, 623 F.3d at 1187 (quoting 28 U.S.C. §
“[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.” Ryan v. Clarke, 387
F.3d 785, 790 (8th Cir. 2004) (citing 28 U.S.C. § 2254(d)(2)). As noted above, “a determination
of a factual issue made by a State court shall be presumed to be correct” unless rebutted by the
petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The deference owed by a
federal habeas court to a state court’s finding of fact includes deference to state court credibility
determinations. Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc). Moreover, the
presumption of correctness of findings of fact applies to the factual determinations made by a
state court at either the trial or appellate levels. Id. at 864-65.
The foregoing principles establish that “[t]he AEDPA standard is difficult to meet as it is
intended as ‘a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.’” Nash v. Russell, 807 F.3d 892, 897
(8th Cir. 2015) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotations
Grounds One, Two, and Four – Venue Issues
Rowe’s first, second, and fourth grounds each raise issues related to state venue law. In
Ground One, Rowe argues that venue was improper in Scott County Missouri. Similarly, in
Ground Four, Rowe contends that the trial court lacked jurisdiction over Count One which was
improperly filed in Scott County. On its face, Rowe’s first and fourth grounds do not allege a
violation of federal law. Nonetheless, the Court will liberally construe Rowe’s petition to allege
a claim that the procedures employed by the trial court relative to Count One of the state charge
impinged on his due process rights under the Fourteenth Amendment. In Ground Two, Rowe
argues that the trial court’s refusal to allow his attorney to argue venue to the jury denied him his
due process rights. The State’s response argues, in part, that Rowe defaulted these grounds.
[ECF No. 8 at 8]
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As explained below, the Missouri Court of Appeals concluded that Rowe waived his
venue issues and reviewed those arguments for plain error only. Therefore, Grounds One, Two,
and Four are procedurally defaulted. Even if Rowe’s venue arguments are not procedurally
defaulted, the claims are not cognizable under 28 U.S.C. § 2254 because they each involve
alleged errors of state law and do not rise to the level of a federal constitutional violation.
Review of State Procedure
Rowe raised substantially similar venue issues in his direct appeal to the Missouri Court
of Appeals. (Resp. Exh. H at 4-5) 3 The Missouri Court of Appeals concluded that Rowe waived
the issues because he failed to raise a proper objection to venue before trial. (Id.) Nonetheless,
the Missouri Court of Appeals reviewed the issues under a plain error standard and found no
plain error. (Id. at 5) The Missouri Court of Appeals concluded that there was no prejudice to
Rowe and, in fact, his case was ultimately tried in the proper venue – New Madrid County. (Id.)
Moreover, the Court of Appeals explained that, under Missouri law, a criminal defendant can
waive an objection to venue beyond failing to timely object. “For example, a waiver occurs
when a criminal defendant moves for a change of venue.” (Id. at 6; citing State v. Taylor, 238
S.W.3d 145, 149 (Mo. Banc 2007))
The Missouri Court of Appeals found that Rowe knew “that the events giving rise to the
statutory sodomy charge occurred in his own home, which he believed to be located in New
Madrid County. Hence, Rowe had sufficient information to challenge venue in Scott County
[before trial].” (Id.) Had Rowe raised a timely venue challenge, his case would have been
To the extent Rowe’s First, Second, and Fourth Grounds are construed substantially
different from those he raised in his direct appeal to the Missouri Court of Appeals, such grounds
would be procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Castille
v. Peoples, 489 U.S. 346, 351 (1989).
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transferred to New Madrid County. The Missouri Court of Appeals concluded that Rowe waived
the venue issue in three different ways. Rowe “waived the venue issue by: (1) failing to timely
object to venue in Scott County; (2) moving for a change of venue to Stoddard County; and (3)
agreeing to a change of venue to New Madrid County.” (Id. at 6) “As a result of [Rowe’s] own
actions, he was actually tried in a county where he admits venue was correct.” (Id.)
Analysis – Procedural Default
“Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and
sentence are guided by rules designed to ensure that state-court judgments are accorded the
finality and respect necessary to preserve the integrity of legal proceedings within our system of
federalism.” Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Under the doctrine of procedural
default, a federal habeas court may not review claims where “the prisoner had failed to meet a
state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). See also
Wainwright v. Sykes, 433 U.S. 72 (1977) (procedural default applied to failure to timely at trial).
“The doctrine barring procedurally defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law.” Martinez, 132 S. Ct. at 1316 (citing
Coleman, 501 U.S. at 750). Cause is shown if the petitioner demonstrates that an objective
factor, external to his defense, impeded his ability to comply with the procedural requirement.
Coleman, 501 U.S. at 750. Prejudice in this context requires the petitioner to show that the
alleged errors “worked to his actual and substantial disadvantage.” Ivy v. Caspari, 173 F.3d
1136, 1141 (8th Cir. 1999) (emphasis in original). See also Arnold v. Dormire, 675 F.3d 1082,
1087 (8th Cir. 2012). Prejudice in this regard “is higher than that required to establish
ineffective assistance of counsel under Strickland.” Charron v. Gammon, 69 F.3d 851, 858 (8th
Cir. 1995). Finally, if a petitioner can demonstrate that he is actually innocent of the crime, he
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may excuse his procedural default under a fundamental miscarriage of justice exception. Schlup
v. Delo, 513 U.S. 298, 324 (1995). This is done by presenting new and reliable evidence. Id.
Until recently, there was uncertainty whether a state court’s plain error review of a
defaulted claim cured or otherwise remedied a procedural default for federal habeas purposes.
Earlier this year, the Eighth Circuit made clear that a state court’s plain error review of an
unpreserved or waived claim does not serve to excuse a procedural default. See Clark v.
Bertsch, 780 F.3d 873, 876-77 (8th Cir. 2015) (resolving intra-circuit split).
In Rowe’s case, the Missouri Court of Appeals concluded that Rowe waived his venue
issues. Thus, it appears that Rowe defaulted his venue grounds. Under Bertsch, the fact that the
Missouri Court of Appeals reviewed Rowe’s venue arguments for plain error does not cure the
default. In his reply brief, Rowe attempts to address the issue of procedural default, but he does
not offer any lawful basis that might cure his default. [ECF No. 10 at ¶ 3] Accordingly, Rowe’s
First, Second, and Fourth Grounds are defaulted.
Even construing Rowe’s venue arguments in the most favorable light, and assuming no
procedural default, none of his arguments raise cognizable issues that a federal habeas court may
correct. Grounds One, Two, and Four of Rowe’s petition involve, in one form or another, claims
focused on alleged violations state venue law, as applied to the charge of first degree sodomy.
Violations of state law generally are not cognizable under 28 U.S.C. § 2254. 4 Rather,
improprieties and errors in state criminal proceedings may be entertained by a federal habeas
court only if such errors rise to the level of fundamental unfairness, in violation of the prisoner’s
due process rights under the Fourteenth Amendment. “[H]abeas review does not lie to correct
“The writ of habeas corpus shall not extend to a prisoner unless … [that prisoner] is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
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alleged errors of state law.” Middleton v. Roper, 498 F.3d 812, 820 (8th Cir. 2007) (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). See also Armstrong v. Hobbs, 698 F.3d 1063,
1067-68 (8th Cir. 2012) (explaining that “the inquiry under AEDPA is whether a state court
decision is contrary to, or an unreasonable application of, clearly established federal law, not
whether the state court incorrectly applied state law”) (citing Middleton).
In Rowe’s case, the decision of the Missouri Court of Appeals makes clear that, under
Missouri law, venue in a criminal case is a matter that must be challenged before trial. When
venue is timely challenged, the remedy is to transfer the case to a county where venue is proper.
(Resp. Exh. H at 5) Moreover, as the Court of Appeals also recognized, even though Rowe did
not raise a timely venue challenge, his case was tried in New Madrid County, with the consent of
all parties. (Id. at 6) It is not disputed herein that New Madrid County represents the proper
The fact that the trial court did not permit Rowe’s attorney to argue venue to the jury
does not rise to the level of a fundamental unfairness in violation of Rowe’s federal rights.
Although the Missouri Approved Jury Instructions purport to include venue as an element of the
criminal offense, (Resp. Exh. H at 5; citing MAI-CR 3d 320.11), the Missouri Court of Appeals
concluded that the instruction is incorrect and venue is not an element of the crime of first-degree
sodomy. (Id. citing cases) Therefore, according to the Missouri Court of Appeals, the State was
not required to prove the crime occurred in Scott County, as alleged in the original charging
documents. This conclusion is based entirely on the Court of Appeals analysis and interpretation
of Missouri law – it does not implicate any due process or other federal constitutional concerns.
See Armstrong, 698 F.3d at 1067-68. Finally, there was no dispute at trial that the alleged
conduct at issue occurred in Rowe’s home. And Rowe cannot explain how the alleged error
2241(c)(3). See also 28 U.S.C. § 2254(a).
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regarding venue actually prejudiced him in his case – he was tried in New Madrid County, which
is where he claims he should have been tried because that is where his house was located.
Accordingly, the fact that the charging document stated that his house was in Scott County rather
than New Madrid County did not work any fundamental unfairness to Rowe in this case.
Rowe’s First, Second, and Fourth Grounds for relief raise issues of state law which were
resolved adversely to him on plain error review. This Court is not at liberty to second guess the
Missouri Court of Appeals interpretation and application of Missouri venue law or the elements
of the crime of first-degree sodomy. See Armstrong, 698 F.3d at 1067-68. Accordingly,
Rowe’s First, Second, and Fourth Grounds for relief are denied.
Ground Three - Ineffective Assistance of Counsel
The third ground raised in Rowe’s § 2254 petition alleges a claim of ineffective
assistance of counsel. Rowe contends that his attorney provided constitutionally ineffective
assistance because counsel failed to object when the State’s attorney cross-examined Rowe as to
whether he knew why T.B. might have fabricated her testimony. (See ECF No. 1 at 8; Resp.
Exh. A at 366, 368, 370) Rowe raised this same issue in his state post-conviction motion and on
appeal from the denial of that motion. Accordingly, Rowe’s ineffective assistance of counsel
claim is properly before the Court.
In order to prevail on an ineffective assistance of counsel claim, Rowe must demonstrate
both that counsel’s performance was constitutionally deficient, and that he was prejudiced
thereby. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). “Judicial scrutiny of
counsel’s performance is highly deferential, indulging a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional judgment.” Bucklew, 436 F.3d
1010, 1016 (8th Cir. 2006) (citing Strickland, 466 U.S. at 689). Thus, “[u]nder Strickland,
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counsel’s performance is ‘measured against an objective standard of reasonableness,’ and
‘hindsight is discounted by pegging adequacy to counsel’s perspective at the time investigative
decisions are made, and by giving a heavy measure of deference to counsel’s judgments.’” Id.
(quoting Rompilla v. Beard, 545 U.S. 374, 380-81 (2005)). Strickland “[p]rejudice is shown by
demonstrating that counsel’s errors were so serious that they rendered the proceedings
fundamentally unfair or the result unreliable.” Id. (citing Lockhart v. Fretwell, 506 U.S. 364,
372 (1993)). Thus, in order to prevail on the prejudice prong, Rowe must show “that but for
counsel’s deficiency there is ‘a reasonable probability that … the result of the proceeding would
have been different.’” Lamar v. Graves, 326 F.3d 983, 985 (8th Cir. 2003) (quoting Strickland,
466 U.S. at 694).
Finally, Rowe must prevail on both prongs of the Strickland standard. See Worthington
v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) (“Failure to establish either Strickland prong is fatal
to an ineffective-assistance claim.”).
“Taken 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,
131 S. Ct. 1388, 1410 (2011)). “Under AEDPA, we must then give substantial deference to the
state court’s predictive judgment [regarding Strickland prejudice]. So long as the state court’s
decision was not ‘contrary to’ clearly established law, the remaining question under the
‘unreasonable application’ clause of § 2254(d) is whether the state court’s determination under
the Strickland standard is unreasonable, not merely whether it is incorrect.” Id. (citing
Harrington v. Richter, 131 S. Ct. 770, 785 (2011)). “This standard was meant to be difficult to
meet, and ‘even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.’” Id. (quoting Harrington, 131 S. Ct. at 786). “If the state court ‘reasonably could
have concluded that [the petitioner] was not prejudiced by counsel’s actions,’ then federal review
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under AEDPA is at an end.” Id. at 832 (quoting Preno v. Moore, 131 S. Ct. 733, 740, 744
Analysis – Ground Three
The record before this Court demonstrates that the Missouri courts applied the Strickland
standard to Rowe’s ineffective assistance of counsel claim. (See Resp. Exh. I at 59; Resp. Exh.
L at 2) The motion court concluded that Rowe had failed to meet either prong of the Strickland
test. (Resp. Exh. I at 61) The Missouri Court of Appeals concluded that it did not need to decide
whether his counsel’s failure to object was unreasonable because it found that Rowe could not
satisfy the prejudice prong. (Resp. Exh. L at 3) Accordingly, the Missouri Court of Appeals
affirmed the denial of post-conviction relief, finding that Rowe failed in his burden under the
The Missouri Court of appeals applied recent Missouri precedent in resolving Rowe’s
ineffective assistance claim. “In Ballard v. State, 408 S.W.3d 327 (Mo. App. Ct. E.D. 2013),
[the court] affirmed a denial of post-conviction relief where the movant alleged that trial counsel
was ineffective for failing to object when the State asked the movant to comment during crossexamination on the credibility of the State’s witnesses with whom the movant’s testimony
conflicted.” (Resp. Exh. L. at 3) “Ultimately, the court found that ‘[b]ecause the parties’
relative credibility was already at issue, Movant failed to show how the improper questions
affected the jury’s decision.’ Ballard, 408 S.W.3d at 333.” (Id. at 4)
The Missouri Court of Appeals concluded that Rowe’s case was substantially similar to
Ballard. Thus, “Rowe failed to show how the complained-of questions affected the jury’s
decision.” (Id.) Therefore, the court affirmed the motion court’s judgment denying Rowe’s
29.15 motion. (Id.)
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In his reply brief, Rowe simply argues that “[t]he law is clear in Missouri that a witness
may not be asked to give their opinion on the truth or veracity of another witness’ testimony.”
[ECF No. 10 at ¶ 7] Rowe then contends that, because the State’s question violated the law, he
was forced to “give a[n] inadmissible opinion of [T.B.’s] testimony and invade the province of
the jury.” [Id.] Therefore, according to Rowe, absent the admission of his opinion regarding
T.B’s testimony, the jury would have acquitted him. [Id.]
Rowe’s argument is not persuasive, and even it was, it would be insufficient to warrant
him relief under the Court’s standard of review. See Bucklew, 436 F.3d at 1016. The record
before this Court firmly demonstrates that the Missouri Court of Appeals decision identified and
applied the correct legal standard for assessing an ineffective assistance of counsel claim. In
order to prevail, therefore, Rowe must demonstrate that “the state court’s application of the
Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011). “This is
different from asking whether defense counsel’s performance fell below the Strickland
standard.” Id. at 101. The focus is, therefore, “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id. at 105. This is a very high burden to
The undersigned concludes that the Missouri Court of Appeals analysis reflects a
reasonable argument that trial counsel’s failure to object did not work to Rowe’s prejudice under
Strickland. Although Rowe argues that, the prosecutor’s improper questions resulted in his
conviction, one could equally conclude that Rowe’s response to the questions gave Rowe an
opportunity to buttress his own testimony. As the Missouri Court of Appeals decision makes
clear, Rowe’s testimony was in direct conflict with T.B.’s testimony. Thus, apart from any
improper question, the jury already had to decide which witness to believe in order to decide
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Rowe’s case. 5 As such, this Court cannot say that the Missouri Court of Appeals resolution of
Rowe’s ineffective assistance of counsel claim was unreasonable.
Accordingly, Ground Three is denied.
The Court concludes that Rowe is not entitled to federal Habeas relief on the grounds
presented in his Petition. Rowe has failed to establish that his state court proceedings were
contrary to, or involved an unreasonable application of, clearly established federal law, or was
based upon an unreasonable determination of the facts presented in those proceedings. See 28
U.S.C. § 2254(d). Moreover, an evidentiary hearing is not warranted because the existing
“record already contains all the facts necessary to resolve [Rowe’s] claim[s].” Johnston v.
Luebbers, 288 F.3d 1048, 1060 (8th Cir. 2002) (explaining that habeas petitioners are entitled to
evidentiary hearings only under narrow circumstances). See also 28 U.S.C. § 2254(e)(2).
Rowe has failed to make a substantial showing of the denial of a constitutional right
sufficient to justify the issuance of a Certificate of Appealability. See 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 123 S. Ct. 1029, 1040 (2003) (standard for issuing a Certificate of
Appealability) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
IT IS HEREBY ORDERED that the Petition of Hernando D. Rowe for habeas corpus
relief [ECF No. 1] is DENIED.
IT IS FURTHER ORDERED that the Petition may be denied without the need for an
In this regard, the Court notes that the questions at issue were fairly broad were not
specifically limited to the facts relating to Count One – the count of conviction. (Resp. Exh. A at
366, 368, 370) The jury acquitted Rowe on two other counts.
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IT IS FURTHER ORDERED that a Certificate of Appealability will not be issued by
IT IS FURTHER ORDERED that Petitioner’s motion for a ruling on his petition [ECF
No. 15] is DENIED as moot.
A separate Judgment in accordance with this Memorandum and Order is entered this
Dated this 20th day of January, 2016.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
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