Lee v. Russell

Filing 14

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Brandon Lee for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue in this case. Signed by District Judge Audrey G. Fleissig on 07/31/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BRANDON LEE,
Petitioner,
vs.
TERRY RUSSELL,
Respondent.

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No. 4:14CV01168 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Brandon Lee for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner pled
guilty to one count of unlawful possession of a firearm, and a jury convicted him of one
count of first-degree robbery, one count of armed criminal action, one count of unlawful
use of a weapon, and one count of resisting arrest. Petitioner was acquitted of one count
of first-degree assault and one additional count of armed criminal action.

All charges

arose out of an incident in St. Charles, Missouri, on August 3, 2009, in which Petitioner
robbed a woman at gunpoint, threatened others with the firearm, and then led police on a
high speed chase. Petitioner was sentenced to a total of 25 years’ imprisonment.
In his petition for habeas relief, Petitioner claims that he received ineffective
assistance of trial and appellate counsel in that they “collaborat[ed] with St. [Charles]
County Court official[s]” to convict Petitioner on his prior criminal history and they
failed to investigate Petitioner’s version of his encounter with the victim. He also claims

that the trial court erred in allowing witnesses to testify who had not been deposed before
trial, in allowing admission of an audio recording which mentioned prior criminal activity
unrelated to the charges being tried, and in admitting evidence of these prior, uncharged
crimes without giving a limiting instruction to the jury.
Respondent argues that Petitioner’s claims of ineffective assistance of counsel and
trial court error regarding witnesses that were not deposed were procedurally defaulted
and without merit, and that the state courts’ adjudication of all of Petitioner’s remaining
claims in his petition was reasonable. For the reasons set forth below, habeas relief will
be denied.
BACKGROUND
Trial
Petitioner’s trial commenced on August 3, 2010. In opening statement, the
prosecutor presented the state’s theory of the case, that the evidence presented a clear
instance of robbery followed by the suspect leading police on a high speed chase. The
prosecutor also cast doubt on Petitioner’s version of events – that he spoke with the
victim on the phone to arrange to meet her to sell her illegal drugs, and that upon meeting
her, she tried to take the drugs without paying for them so he took her purse to recover
his property. The prosecutor highlighted inconsistencies and gaps in the story Petitioner
relayed to the police, including Petitioner’s failure to provide the police with sufficient
identifying information to locate a person named Craig who, according to Petitioner,
arranged the drug deal between Petitioner and the victim and gave Petitioner the gun he
used in the robbery. In her opening statement, defense counsel argued that Petitioner’s
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version of events was credible, that Petitioner did provide the police with enough
identifying information to locate Craig, and that the police failed to adequately
investigate his story.
The evidence adduced at trial established the following. On August 3, 2009,
Petitioner drove into a Walgreen’s parking lot in a vehicle his girlfriend rented from a car
rental agency. Petitioner was alone. He circled the lot before parking. Victoria
Doppieri, who was eight months pregnant at the time, was walking through the parking
lot on her way home. Petitioner exited his vehicle and followed Doppieri into a nearby
mobile-home park where she lived, pulled a gun on her, pointed it at her stomach, and
demanded her purse. She initially refused to let go of her purse but relinquished it after
Petitioner fired a shot into the ground. Doppieri screamed for help as Petitioner fled with
the purse. Neighbors, responding to the screaming, chased Petitioner to the Walgreen’s
parking lot and demanded he return the purse. Petitioner yelled at them to get back and
pointed his gun at one of the pursuers as Petitioner got into his car and backed out of the
parking spot. Petitioner sped out of the parking lot. Witnesses called 911.
A police dispatcher issued a call reporting that a black suspect had discharged a
gun and left the area in a silver Mazda 6. An officer responding to the call spotted
Petitioner’s car that met the description, and pursued it. Petitioner then led the police on
a chase with speeds exceeding 120 miles per hour. Petitioner lost control of his vehicle
and crashed into an embankment. He attempted to flee on foot but was quickly
apprehended by the police. The police found a loaded gun and Doppieri’s purse in the
crashed vehicle. A shell casing found at the scene of the robbery was later matched to the
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gun found in the vehicle. Petitioner was brought back to the scene by police where he
was identified by witnesses before being hospitalized for injuries sustained during the
crash. He was questioned in the hospital two days later where he alleged that his
interaction with Doppieri was actually a drug deal that went wrong.
Witnesses who testified at trial included Doppieri, three neighbors who witnessed
the incident and responded to her scream, and the police officers who responded to the
dispatcher’s call. During the testimony of one of the pursuing officers, the state played
an audio recording of the police dispatcher in which she read off the license plate of the
vehicle the perpetrator was driving and then stated, “I believe this was the plate given out
earlier on a drive off for gas.” ECF No. 12. Defense counsel asserted at a side bar that
this statement referenced prior criminal acts in violation of Petitioner’s motion in limine
to exclude such evidence, and she moved for a mistrial. The prosecution argued that the
comment referenced the vehicle Petitioner was driving, and did not specifically identify
Petitioner himself as having committed any prior bad acts. The court denied Petitioner’s
motion for a mistrial, and the trial continued. ECF No. 9, Resp. Ex. A at 127-28. Later
testimony from another police officer established that the vehicle driven by Petitioner had
been rented by his then girlfriend from a rental car agency. Id. at 188.
On cross-examination of the state’s witnesses, particularly police officers, defense
counsel drew attention to the fact that the police failed to investigate Petitioner’s version
of his encounter with Doppieri. She questioned their failure to test drugs found near
Petitioner’s wrecked car, their failure to attempt to identify a man named Craig who

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Petitioner claimed was the individual who connected him with Doppieri, and their failure
to test Doppieri or her newborn child’s blood for the presence of narcotics.
After the state concluded its case, the trial judge informed Petitioner of his right to
testify and directly asked him if he would like to take the stand in his own defense.
Petitioner informed the judge that he did not wish to testify. Id. at 212-14. The defense
rested without presenting any evidence.
To rebut the defense’s suggestion that police should have tested the blood of
Doppieri or her newborn child for drugs, in closing statement the prosecution suggested
that had the police done so, it would have constituted harassment, which is “what causes
people not to like the police.” Id. at 225. Defense counsel did not object. Defense
counsel’s closing statement again faulted the police for failing to investigate Petitioner’s
story and in not trying to locate Craig.
As stated above, Petitioner pleaded guilty to one count of unlawful possession of a
firearm, and the jury convicted Petitioner of one count of first-degree robbery, one count
of armed criminal action, one count of unlawful use of a weapon, and one count of
resisting arrest. Petitioner was acquitted of one count of first-degree assault and one
additional count of armed criminal action. Petitioner was sentenced to a total of 25 years’
imprisonment.
Direct Appeal
On direct appeal, Petitioner argued that (1) the trial court abused its discretion in
overruling Petitioner’s motion for a mistrial after the jury heard evidence of Petitioner’s
prior bad acts as discussed by the police dispatcher on the tape; and (2) the trial court
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plainly erred by submitting the verdict director on the charge of unlawful use of a weapon
to the jury because the instruction failed to specify a specific instance underlying the
charge.
The Missouri Court of Appeals rejected the first claim, concluding that the
dispatcher’s statement on the tape was not inadmissible evidence in that it did not
“directly or definitely associate [Petitioner] with a crime.” ECF No. 9, Resp. Ex. E at 10.
The court noted that the comment in question referred to the license plate of the vehicle
Petitioner was driving and not Petitioner himself, and the jury heard evidence that the
vehicle was not owned by Petitioner. The court concluded that the “isolated reference to
a drive-off for gas could not have prejudiced [Petitioner] in light of the overwhelming
evidence of his guilt,” and the fact that the jury acquitted Petitioner on some counts
suggested they did not view him as necessarily predisposed to crime. Id. at 10-11. As
such, the court concluded that the drastic remedy of a mistrial was not warranted under
the circumstances. The second claim was rejected on the rationale that if a different
instruction had been given, there was no “reasonable probability” that a different verdict
on the charge of unlawful use of a weapon would have resulted, given the circumstances
of the case. Id. at 14.
State Postconviction Proceedings
For state postconviction relief, Petitioner asserted that defense counsel was
ineffective for failing to object to the prosecutor’s statement during closing argument
regarding the police’s decision not to test Doppieri or her baby’s blood for drugs which,
according to Petitioner, was “improper personalization.” Petitioner argued that had
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defense counsel objected to the prosecutor’s personalizing statements, the court may have
declared a mistrial. Petitioner also argued that defense counsel was ineffective for failing
to call him to testify in his own defense. The motion court denied both arguments
without a hearing, and the state appellate court affirmed the trial court on both issues.
Federal Habeas Action
As noted above, Petitioner raises four grounds for federal habeas relief: (1)
defense counsel and direct appeal counsel were ineffective; (2) the trial court erred in
allowing witnesses who had not been deposed to testify at trial; (3) the trial court erred in
admitting the audio recording of the police dispatcher mentioning Petitioner’s prior bad
act into evidence; (4) the trial court erred in admitting evidence regarding Petitioner’s
prior crimes or bad acts without giving the jury a limiting instruction. Petitioner cites
“ineffective representation” as the reason why he did not raise claims one, two, and four
before the state courts.
DISCUSSION
Standard of Review
Where a claim has been adjudicated on the merits in state court, the AntiTerrorism and Effective Death Penalty Act (“AEDPA”) provides that federal habeas
corpus relief cannot be granted unless the state court’s adjudication
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
proceedings.
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28 U.S.C. § 2254(d).
The “contrary to” clause is satisfied if a state court has arrived at a conclusion
opposite to that reached by the Supreme Court on a question of law, or confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent but arrives
at the opposite result. Lockyer v. Andrade, 538 U.S. 63, 73 (2003); Strong v. Roper, 737
F.3d 506, 510 (8th Cir. 2013). A state court “unreasonably applies” clearly established
federal law when it “identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
Procedural Default
“Ordinarily, a federal court reviewing a state conviction in a federal habeas corpus
proceeding may consider only those claims which the petitioner has presented to the state
court in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082,
1086-87 (8th Cir. 2012) (citation omitted). A petitioner may bring procedurally defaulted
claims if he can show cause to excuse his failure and “actual prejudice resulting from the
alleged constitutional violation.” Davila v. Davis, 137 S. Ct. 2058, 2062. In addition, the
“fundamental miscarriage of justice exception” may allow a claim to be heard on the
merits despite a procedural bar if a petitioner can make “a credible showing of actual
innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013). Here, Petitioner
asserts that he failed to raise three of his claims before the state courts because of
ineffective assistance of counsel, without specifying which counsel. Rather than address
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the issue of procedural default, the Court will instead address all of Petitioner’s claims on
the merits. See 28 U.S.C. § 2254(b)(2); Padavich v. Thalacker, 162 F.3d 521, 522 (8th
Cir. 1998) (holding that a federal habeas court may deny a claim on its merits rather than
address issues of procedural default).
Assistance of Defense and Direct Appeal Counsel (Claim 1)
For Petitioner’s first claim, he asserts that his trial and appellate counsel
collaborated with St. Charles County Court officials “to convict petitioner on his [past]
criminal history.” ECF No. 1 at 5. Petitioner alleges that he told police, trial counsel,
and appellate counsel about a phone call between Petitioner and the victim to arrange a
meeting with her. In treating Petitioner’s pro se petition liberally, the Court will view
this as a claim that defense counsel was ineffective in failing to adequately investigate the
case and in failing to move for a limiting instruction regarding the audio tape after the
trial court denied defense counsel’s motion for a mistrial, and that direct appeal counsel
was ineffective in failing to argue on appeal that Petitioner’s right to a fair trial was
violated in connection with these matters. 1
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must
show that counsel’s performance was deficient, and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“The first prong requires a showing ‘that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment.’ The second prong requires a showing that ‘there is a reasonable

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Petitioner offers no evidence, whatsoever, that his attorneys “collaborated” with St.
Charles County Court officials to deny Petitioner his rights.
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probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’”
White v. Dingle, 757 F.3d 750, 752-53 (8th Cir. 2014) (quoting Strickland, 466 U.S. at
687, 694). What is required is a “probability sufficient to undermine confidence in the
outcome” of the trial; it is not enough to show “some conceivable effect on the outcome.”
Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation omitted). There is a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Tunstall v. Hopkins, 306 F.3d 601, 606 (8th Cir. 2002) (quoting Strickland,
466 U.S. at 689).
The Court finds no basis for holding that defense counsel’s failure to move for a
limiting instruction constituted ineffective assistance. Because there was no evidentiary
hearing regarding the performance of Petitioner’s trial counsel, the Court will address any
prejudice to Petitioner under Strickland’s second prong. See Owens v. Dormire, 198 F.3d
679, 682 (8th Cir. 1999) (declining to address Strickland’s first prong when there was no
showing of prejudice to the habeas petitioner to satisfy the second prong). Under the
second prong, counsel’s failure to move for a limiting instruction was not unfairly
prejudicial in light of the strong evidence establishing Petitioner’s guilt. See Fenske v.
Thalacker, 60 F.3d 478, 481-82 (8th Cir. 1995) (holding that counsel’s failure to request
a limiting instruction, even if it constituted deficient performance under Strickland’s first
prong, did not prejudice the petitioner in light of the other evidence at trial).
As to Petitioner’s claim that counsel improperly failed to investigate Petitioner’s
contention that the incident in question was the result of a drug deal, this, too, is without
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merit. Even if counsel’s performance was deficient, Petitioner has failed to establish a
reasonable probability that “but for counsel’s unprofessional errors, the result of the
[trial] would have been different,” in light of the overwhelming evidence establishing his
guilt. See Strickland, 466 U.S. at 694. Defense counsel did present Petitioner’s version
of events to the jury by means of her opening and closing statements and questioning the
police witnesses regarding their failure to investigate the veracity of Petitioner’s story.
Even if one assumes counsel may have located Craig with further investigation – which
Petitioner has not shown – Craig was not an eyewitness to the encounter between
Doppieri and Petitioner and he could offer little evidence that would have rebutted the
testimony of Doppieri and the other eyewitnesses as to the robbery itself. See Owens v.
Dormire, 198 F.3d at 682-83 (holding that petitioner’s claim that if counsel adequately
investigated the matter he would have located a particular witness failed under
Strickland’s second prong where the purported testimony, “if believed by the jury, would
prove only that [the petitioner] was not with one of the other co-defendants some fifty
minutes before the attempted robbery and murder”). Furthermore, it is too speculative to
assume Craig would have agreed to testify to the facts Petitioner alleged, to warrant
habeas relief on this ground. And Petitioner’s belief that Doppieri owed him money,
even for a drug deal, would not have provided a defense to robbery at gunpoint.
Any claims that direct appeal counsel’s representation of Petitioner was deficient
also fail under Strickland’s second prong as Petitioner has failed to establish that had his
direct appeal counsel advanced different arguments, there is a reasonable probability that
the result of his appeal would have been different. Petitioner claims he was wrongfully
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convicted based on his past criminal history. The dispatcher’s mention of the drive-off
for gas is the only evidence of prior bad acts in Petitioner’s trial, yet the record shows that
direct appeal counsel did argue that the trial court erred by not declaring a mistrial after
the jury heard the evidence of the drive-off. The appellate court reasonably held that
evidence of the drive off was not prejudicial in light of the other evidence in the case.
Thus there is no support for the contention that a different argument from appellate
counsel regarding that evidence would have yielded a different outcome of the appeal.
See Bear Stops v. United States, 339 F.3d 777, 782 (8th Cir. 2003) (holding that appellate
counsel’s failure to challenge the improper admission of evidence did not satisfy
Strickland’s second prong when admission of the evidence was harmless).
Trial Court’s Alleged Errors (Claims 2, 3, and 4)
For his second claim, Petitioner asserts that the trial court erred in allowing the
testimony of “new” witnesses who were not deposed prior to trial. He further asserts that
the absence of such depositions deprived him of his due process rights in that the
testimony of these witnesses was not preserved. By this, the Court assumes Petitioner is
asserting that his constitutional right to a fair trial was violated because the deposition
testimony of certain witnesses was not available for review prior to trial and for use at
trial.
Petitioner, however, fails to present, nor has the Court’s review of the record
uncovered, any support for the proposition that testimony from new witnesses not
previously deposed was admitted. Petitioner does not state which witnesses were “new”
nor specifically how his rights were violated by not having deposition transcripts
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available. At no point during the trial did defense counsel object to any particular witness
nor request a continuance in light of a new witness called by the prosecution. Habeas
relief is not warranted on this claim. See Scott-Bey v. Waters, 70 F.3d 112 (4th Cir. 1995)
(rejecting habeas petitioner’s claim based on the trial court allowing a surprise undeposed witness to testify where the petitioner made bare assertions with no factual
support that his counsel was unable to effectively cross-examine a surprise witness
allowed to testify at trial).
Petitioner next asserts that the trial court erred in admitting evidence of prior bad
acts or crimes when it allowed the playing of the tape which mentioned Petitioner’s
vehicle being sighted driving off without paying for gas. The Court finds the state
appellate court’s adjudication of this claim to be reasonable. The victim’s purse and a
gun were discovered inside the vehicle Petitioner was driving, and the gun was later
matched to a shell casing found at the scene of the robbery. Witnesses identified
Petitioner as the man they saw robbing the victim, and the jury heard evidence that the
car was not owned by Petitioner. In light of this evidence, it was reasonable to conclude
that the brief mention of the drive-off in the audio tape did not unfairly prejudice
Petitioner. See Pfau v. Ault, 409 F.3d 933, 941 (8th Cir. 2005) (holding that admission of
evidence of a petitioner’s gang affiliation did not prejudice the petitioner in light of the
overwhelming evidence of guilt despite the possibility that the evidence of gang
affiliation may have been erroneously admitted).
For Petitioner’s last claim, he asserts that the trial court abused its “discretionary
powers in collaborating with the state prosecution system by allowing the state to present
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evidence of crimes that petitioner was not ever [charged] for and not telling the jury to
disregard any circumstantial evidence that is not part of this case.” ECF No. 1 at 10. The
reference to the alleged drive-off for gas is the only evidence the Court finds in the record
regarding a prior bad act that may have warranted a limiting instruction.
As discussed above, the state appellate court reasonably held that in light of the
overwhelming evidence in the case of Petitioner’s guilt, the brief mention of the drive-off
did not prejudice Petitioner. This Court additionally finds that a failure to issue a limiting
instruction regarding the mention of the drive-off also did not prejudice Petitioner such
that habeas relief would be warranted. See, e.g., Williams v. Armontrout, 912 F.2d 924,
930 (8th Cir. 1990) (holding that a court’s failure to give a limiting instruction regarding
a previous murder conviction when defense counsel failed to move for one did not
constitute a violation of petitioner’s due process rights); Christian v. Housewright, 721
F.2d 240, 242 (8th Cir. 1983) (holding that a trial court’s failure to issue a limiting
instruction regarding evidence of petitioner’s prior convictions was harmless error).
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief.
Furthermore, the Court does not believe that reasonable jurists might find the Court’s
assessment of the procedural or substantive issues presented in this case debatable or
wrong, for purposes of issuing a Certificate of Appealability under 28 U.S.C.
§2254(d)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (standard for issuing a
Certificate of Appealability) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Accordingly,
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IT IS HEREBY ORDERED that the petition of Brandon Lee for a writ of habeas
corpus is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability shall not issue
in this case.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 31st day of July, 2017.

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