McCoy v. Steele

Filing 11

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc. No. 1 ], is denied. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 6/16/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARCUS P. MCCOY
Petitioner,
vs.
TROY STEELE,
Respondent.

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) Case No: 4:14CV1192 HEA
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OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. 1] on July 20, 2014. On September 25, 2014, Respondent filed his
Response to the Court’s Order to Show Cause Why Relief Should Not be Granted
[Doc. 8]. Thereafter, on October 8, 2014, Petitioner filed his Traverse. Pursuant to
Rule 8 of the Rules Governing Section 2254 cases in the United States District
Courts, this Court has determined that there are no issues asserted that give rise to
an evidentiary hearing and therefore one is not warranted. For the reasons set forth
below, the Response to the Order to Show Cause Why Relief Should not be
Granted is well taken and the petition will be denied.
Procedural Background
On March 4, 2011, Petitioner was convicted by jury of Assault First Degree
(class A felony), two counts of Armed Criminal Action, Assault First Degree (class

B felony). The Twenty-Second Circuit Court trial court, on April 22, 2011,
sentenced him to concurrent terms of 20 years, 15 years, 15 years, and twelve
years, imprisonment in the Missouri Department of Corrections. The Missouri
Court of Appeals, Eastern District of Missouri, affirmed his convictions on June
12, 2012. The Petitioner is currently within the custody of the Missouri
Department of Corrections under the previously referenced sentences.
Petitioner filed his motion for post-conviction relief, pursuant to Rule 29.15,
relative the case on July 26, 2012. Thereafter, on February 27, 2013, the Missouri
state trial court entered findings of fact and conclusions of law denying the postconviction relief motion of Mr. McCoy. Plaintiff/Movant filed his notice of
appeal, on October 23, 2013, to the Missouri Court of Appeals. On appeal
Petitioner argued trial counsel was ineffective for failing to call McCoy to testify
on his own behalf, failing to include a claim that the trial court erred in overruling
McCoy’s motion to quash the jury panel in his motion for a new trial, and
withdrawing a request for mistrial. The Missouri Court of Appeals affirmed the
trial court after applying the Strickland standard relating to claims of ineffective
assistance of counsel and found all three claims failed to meet the two-part test.
The appellate court also found that McCoy’s second claim was not properly raised
in his post-conviction proceedings and issued its mandate on April 15, 2014.

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Petitioner filed this Petition for Writ of Habeas Corpus against Respondent
on July 20, 2014. Petitioner alleges that 1) trial counsel was ineffective for failing
to call Petitioner to testify at his trial after he told his counsel he wished to do so;
2) counsel was ineffective for withdrawing his request for mistrial; 3) trial counsel
was ineffective for failing to preserve for appellate review a claim that the trial
court erred in overruling the motion to quash the jury panel; 4) the trial court
plainly erred in submitting instruction 6 to the jury, because the instruction
contained a fatal variance between count 1 as charged, count 1 as submitted to the
jury, in that the charging document alleged Petitioner “shot at” the victim and the
instruction required the jury to find Petitioner “actually shot” the victim.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254
(“AEDPA”) applies to all petitions for habeas relief filed by state prisoners after
the statute’s effective date of April 24, 1996. When reviewing a claim that has
been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
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law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.
28 U.S.C. § 2254(d).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
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A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
States Supreme Court did on materially indistinguishable facts. Id. A decision may
only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Statute of Limitations
Congress provides a one-year window in which a habeas applicant can file a
petition for writ of habeas corpus. That window opens at the conclusion of direct
review. The window closes a year later. Failure to file within that one year window
requires the court to dismiss the petition for writ of habeas corpus. 28 U.S.C.
§2244(d) (1) (A); See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir.), cert.
denied, 540 U.S. 971 (2003).
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Discussion
Petitioner was convicted of two counts of first-degree assault and two
counts of armed criminal action, as the result of shootings in 2008, in St. Louis
City. Notably, there were two trials in the Twenty-Second Circuit Court for the
City of St. Louis. The first trial ended as a mistrial. The second trial commenced
on the same day as the mistrial in the initial trial was declared. Petitioner was
found guilty in the second trial and was duly sentenced. On appeal Petitioner
asserted the trial court plainly erred in submitting the verdict director for Count I,
the class A felony of first-degree assault, because it contained a “fatal variance”
between Count I of the indictment and Count I of the verdict director. Since he
failed to object at the trial, the Missouri Court of Appeals conducted plain error
review of his claim, and affirmed his convictions and sentences.
He filed his post- conviction relief motion which was denied after a hearing
on the allegations of the motion. This ruling was appealed and he argued trial
counsel was ineffective for failing to call Petitioner to testify on his own behalf
during the second trial, failing to include a claim that the trial court erred in
overruling his motion to quash the jury panel in his motion for a new
trial, and withdrawing a request for second mistrial. The Missouri Court of
Appeals affirmed the denial of his motion for post-conviction relief. In applying
the Strickland standard relating to claims of ineffective assistance of counsel the
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Missouri Court of Appeals concluded all three claims failed to meet the Strickland
two-part test. Additionally the appellate court found Petitioner did not properly
raise his second claim in the post-conviction proceedings. Petitioner now asserts
the same claims in this proceeding.
Claims of Ineffective Assistance of Counsel
Petitioner’s claims are governed by AEDPA and the standards set forth in
Strickland v. Washington, 466 U.S. 668 (1984). He must therefore show both that
counsel's performance was deficient and that the deficiency prejudiced the
defendant. Id. at 687. In considering whether this showing is met, “[j]udicial
scrutiny of counsel's performance must be highly deferential.” Id. at 689. There is a
“strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance” and this Court should evaluate counsel's
performance at the time of his representation. Id.
Petitioner argued that his trial counsel was ineffective for failing to call him
to testify at his second trial after he told his counsel he wished to do so, and his
counsel was ineffective for withdrawing his request for mistrial for the second trial.
The appellate court properly identified that the two-part test required by Strickland,
and found he failed to demonstrate that his trial counsel’s conduct was
unreasonable.

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A review of the appellate court ruling and analysis supports the conclusion
that deference to the credibility determinations by the motion court was proper.
The Missouri Court of Appeals found that the motion court’s determination of the
claim was supported by the record. The Court noted:
Moreover, while Movant claims that he wanted to testify at the second
trial, the record reflects that he was given ample opportunity to
express this wish to the trial court, yet failed to do so. During a recess
at the second trial, the trial court explained to Movant that if
Dillingham was unavailable to testify, her prior defense testimony
could be read to the jury. Movant acknowledged this option was
available to the defense. At no time, however, did Movant indicate to
the trial court that he wanted to testify.
Further, at the sentencing hearing, when the trial court specifically
asked Movant whether there were any witnesses that he wished
counsel had called on his behalf, Movant did not indicate that counsel
should have called Movant as a witness. The trial court also asked
Movant if there was anything that counsel said or did during the trial
with which Movant disagreed. Again, Movant raised no complaints
regarding counsel's failure to call him as a witness.
Even assuming arguendo, that Movant had been called to testify, he
fails to show that the outcome of his jury trial would have been
different. To satisfy Strickland's prejudice prong, the movant must
show there is a reasonable probability that, but for counsel's alleged
deficiencies, the result of the trial would have been different. Johnson
v. State, 189 S.W.3d 640, 645 (Mo.App.W.D.2006). “[S]imply
showing that the alleged error had a conceivable effect on the trial
outcome is not sufficient; instead the [movant] must show that, absent
the error, there is a reasonable probability that he would have been
found not guilty.” Id. Although Movant did not testify, the jury still
heard arguments and testimony based on the same alibi defense
presented at the first trial—that Movant could not have committed the
shootings because he was living in another state when the crimes
occurred. Thus, Movant was not deprived of the opportunity to
present his alibi defense.
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The Court ultimately concluded the motion court did not err in denying the
claim. The Missouri Court of Appeals also denied his claim that counsel was
ineffective for withdrawing his motion for mistrial after the second trial.
The determination of these issues by the state court was reasonable and
entitled to deference under §2254(d). The record belies the assertions and
arguments of the Petitioner.
There is no allegation or demonstration of how the decision of the Missouri
Court of Appeals was 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.” 28 U.S.C. § 2254(d)(1) and (2), as defined by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000).
On appeal from the post-conviction motion hearing Petitioner also asserted
trial counsel was ineffective for failing to preserve for appellate review a claim that
the trial court erred in overruling his motion to quash the jury panel. The Missouri
Court of Appeals held that his claim was not cognizable under Rule 29.15. The
court held that to the extent Petitioner argued that his counsel’s inaction affected
his ability to appeal by neglecting to preserve the issue for review; the claim was
not cognizable under Rule. 29.15. It was an alternative holding but it does not lift
the procedural default. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (noting
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that a state court addresses the merits of a federal claim in an alternative holding,
the adequate and independent state-ground doctrine will still preclude federal
habeas review).
As to the instruction issue, the Missouri Court of Appeals only reviewed his
claim of trial court error for plain error review under Mo. Sup. Ct. R. 30.20,
thereby imposing the procedural default. In this instance, a habeas petitioner is
not entitled to an independent determination by a federal habeas court after plain
error review by a state court. Hayes v. Lockhart, 766 F.2d 1247, 1252–53 (8th Cir.
1985) (stating that because the burden of justifying federal habeas relief for state
prisoners is greater than the plain error showing required on direct appeal,
petitioner was not entitled to a determination by federal habeas court on whether
the giving of a jury instruction was “plain error”).
Petitioner fails to demonstrate that this Court’s failure to consider this claim
would result in the conviction of one who is actually innocent. See Schlup v. Delo,
513 U.S. 298, 327 (1995)(“Without any new evidence of innocence, even the
existence of a concededly meritorious constitutional violation is not in itself
sufficient to establish a miscarriage of justice that would allow a habeas court to
reach the merits of a barred claim.”). He, likewise, fails to show that some
objective factor external to the defense impeded his efforts to comply with state

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procedural requirements. Coleman, 501 U.S. at 750-52. The facts were available to
him at the time he could seek out remedies for deficiencies.
Upon careful review, the determination of the Missouri Appeals Court is
reasonable and entitled to deference under §2254(d). Counsel was not ineffective
in any regard as claimed. The Missouri Court of Appeals’ resolution of the
Petitioner’s claims was not based on “an unreasonable determination of the facts in
light of the evidence” or an unreasonable application of “clearly established
Federal law.” 28 U.S.C. § 2254(d)(1) and (2). See Ellis v. Norris, 232 F.3d 619,
622 (8th Cir. 2000) (federal habeas court must defer to state court's interpretation
of state law), cert. denied, 532 U.S. 935 (2001); McDonald v. Bowersox, 101 F.3d
588, 596 (8th Cir. 1996) (federal habeas corpus relief may not be granted unless
the alleged trial error was “gross, conspicuously prejudicial or of such import that
the trial was fatally infected”) (citation and quotation marks omitted), cert. denied,
521 U.S. 1127 (1997); Mack v. Caspari, 92 F.3d 637, 641 (8th Cir.1996) (federal
court may grant habeas corpus relief on a claim that has been rejected by a state
court on plain-error review “only if manifest injustice resulted from the alleged
errors”) (quotation marks omitted), cert. denied, 520 U.S. 1109 (1997). See also
Robinson v. LaFleur, 225 F.3d 950, 954 (8th Cir.2000) (regarding state criminal
convictions, “[j]ury instructions involve questions of state law, and [a federal

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habeas corpus petitioner] has the burden of showing that the instructions used
constituted a fundamental defect that resulted in a miscarriage of justice”).
Conclusion
The state courts’ rulings with respect to Petitioner’s prayer for relief were
neither contrary to, nor unreasonable applications of, clearly established federal
law. Thus, Petitioner is not entitled to any relief.

Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
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297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
find this case is timely filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786.
Hence, no certificate of appealability will be issued.
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc. No. 1], is denied.
IT IS FURTHER ORDERED that no certificate of appealability shall
issue.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 16th day of June, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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