Torello v. Cassady

Filing 10

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that Sanchez Torello's petition for writ of habeas corpus (1) pursuant to 28 U.S.C. § 2254 is denied. IT IS FURTHER ORDERED that Torello is not entitled to a Certificate of Appealability on any of his claims. A separate judgment in accordance with this memorandum and order is entered this same date. Signed by District Judge Catherine D. Perry on September 7, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SANCHEZ TORELLO,

)
)
Petitioner,
)
)
vs.
) Case No. 4:14 CV 1248 CDP
)
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JAY CASSADY and CHRIS KOSTER, )
)
Respondents.
)
MEMORANDUM AND ORDER
This case is before the Court on the petition of Sanchez Torello for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving multiple
terms of imprisonment following convictions for felonious restraint, armed
criminal action, and attempted rape. Torello asserts he is entitled to habeas corpus
relief because he received ineffective assistance of counsel when trial counsel
elicited and then failed to object to evidence regarding his prior misdemeanor
assault conviction. The Missouri Court of Appeals considered his claim of
ineffective assistance and rejected it on the merits, finding he could not show he
was prejudiced by the conduct of his trial counsel. I conclude that the decision of

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Petitioner has named as respondent the State of Missouri. The proper respondent when a
petitioner is in jail due to the state action he is attacking is the state officer having custody of the
applicant. See Rule 2 of the Rules Governing § 2254 Cases. Because petitioner also challenges
the state's prosecution of his criminal case, the attorney general would appear to be an additional
respondent in this action. Id.

the Missouri Court of Appeals was not contrary to Federal law or based on an
unreasonable determination of the facts. Therefore, I will deny Torello’s petition
for the writ of habeas corpus.
Factual Background
On January 31, 2007, petitioner Torello met with his estranged wife, the
victim in the case, in his S.U.V. parked at her workplace. When the victim sought
to leave the vehicle after this meeting, Torello refused to allow her to exit,
grabbing her wrist and reaching for the console of the vehicle where she was aware
that Torello kept a loaded gun. With the victim still in the passenger seat, Torello
drove away on the highway for hours, occasionally stopping and making
threatening statements to the victim. At one point, Torello forced the victim to lie
in the back seat and remove her pants, attempting to have sex with her and
instructing her to perform oral sex. After this occurrence, Torello drove back
toward the city, eventually stopping near a church where they had previously
received counseling. Torello pulled the gun out of the console, grabbed the victim
by her hair and hit her head with the gun, stating something to the effect of “don’t
make me kill you.” Eventually the victim was able to gain the attention of the
church pastor, who intervened and eventually was able to confiscate Torello’s gun.
The victim then ran into the church, where she hid until Torello left.

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Procedural History
Torello was charged with felonious restraint, armed criminal action, and
attempted forcible rape. At trial, a jury found Torello guilty on all three counts, and
the trial court sentenced him as a misdemeanor prior offender to concurrent terms
of seven years in prison each for felonious restraint and armed criminal action, and
to a consecutive term of twenty-five years in prison for attempted forcible rape.
(Resp. Exh. G, p. 43-44). On direct appeal, the Missouri Court of Appeals
affirmed Torello’s convictions, but remanded the case for re-sentencing based
upon an erroneous finding by the trial court that Torello was a persistent
misdemeanor offender. Torello v. Missouri, 334 S.W. 3d 903 (Mo. Ct. App. 2011)
(Resp. Exh. K). Torello was subsequently resentenced to concurrent terms of five
years each for felonious restraint and armed criminal action, and a consecutive
term of twenty years for attempted forcible rape.
Petitioner filed a motion for post-conviction relief pursuant to Missouri
Supreme Court Rule 29.15. The motion court entered judgment denying
Petitioner’s post-conviction motion. (Resp. Exh. N, p. 138-142). The Missouri
Court of Appeals affirmed the decision of the motion court. Missouri v. Torello,
455 S.W.3d 28 (Mo. Ct. App. 2014) (per curiam) (Unreported Supp. Mem. at
Resp. Exh. R).
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Grounds for Relief
Torello raises a single claim of ineffective assistance of counsel. Although
his petition lists this as three separate claims, all three are simply aspects of his
argument that counsel was ineffective for allowing the jury to hear and consider
the evidence of his prior assaultive behavior.
This evidence was presented in two instances at trial.
The first instance occurred in an exchange between defense counsel and the
victim during cross-examination regarding the gun in the vehicle at the time of the
assault:
Q: And, actually, is this 9-millimeter, this was a gun that you bought. Is that
right?
A: It is.
Q: This is a gun in your name?
A: Because he couldn’t get it in his name because of his criminal history.
Q: And because he had a misdemeanor?
A: Well, assault against a police officer.
(Resp. Exh. C, Tr. P. 333, l. 25 to 334, l.7).
The second instance occurred during an exchange between the State and the
victim during re-direct examination:
Q: Why was it that you signed for the gun instead of him?

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A: Because he was scared that because of his criminal background he
thought that they would kick it back and they wouldn’t let him get
something.
Q: And what was that background, to your knowledge?
A: Assault against a police officer, physical stuff. I don’t know if he had
anything from beating his last girlfriend, but I remember it was assault kind
of stuff.
(Resp. Exh. C, Tr. at p. 369, l. 7 to l. 17).
Discussion
A federal court may grant a writ of habeas corpus for a claim adjudicated on
the merits in state court only when the state court’s decision:
“(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 evidence presented in the State court proceeding.”
Anti-terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (2006). “A
state-court decision is contrary to this Court’s clearly established precedents if it
applies a rule that contradicts the governing law set forth in our cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of this
court but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005).
A state court decision involves an unreasonable application of clearly established
Federal law if the state court applied the Supreme Court’s “precedents to the facts

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in an objectively unreasonable manner.” Id. “Under § 2254(d)(1)’s ‘unreasonable
application’ clause, then, a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S.
362, 411 (2000). Furthermore, when reviewing a state court decision, a federal
court must presume that a state court’s factual determinations are correct; a
petitioner may rebut this presumption only by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
To prevail on a claim of ineffective assistance of trial counsel, a petitioner
must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984).
First, the defendant must show that counsel’s performance was deficient. Second,
the defendant must show that the deficient performance prejudiced the defense. Id.
To show deficiency, the petitioner must prove counsel’s assistance fell below an
“objective standard of reasonableness ... under prevailing professional norms.” Id.
at 688. To demonstrate prejudice, the petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.

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In his motion for post-conviction relief in the trial court, Torello claimed that
his trial counsel was ineffective for soliciting and failing to object to the evidence
in question. At the motion hearing for post-conviction relief, trial counsel testified
that he did not remember the evidence in question being adduced, nor could he
recall any strategic reason for allowing it. The motion court nonetheless found
counsel’s “explanations of trial strategy to comport with the record of the trial of
this case and to be reasonable,” thus finding trial counsel to be credible and trial
strategy sound and reasonable. (Resp. Exh. N, at p. 140). On appeal, however, the
Missouri Court of Appeals disagreed with this portion of the motion court’s
finding, stating “we cannot comprehend how counsel’s testimony supports such a
finding and thus cannot affirm on that basis.” (Resp. Exh. R, Mem. at p. 3). The
Court of Appeals therefore considered only the issue of prejudice, and concluded
that Torello had not shown that he was prejudiced by counsel’s handling of this
evidence.
The Missouri Court of Appeals discussed the appropriate Strickland standard
and stated, “[e]ven assuming – as we must from the PCR hearing transcript – that
counsel’s inaction wasn’t strategic, it also wasn’t so significant, in light of the full
trial record, as to undermine confidence in the outcome. In other words, the
preponderance of the evidence does not prove Movant’s claim of prejudice.” Id.

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The court noted that the evidence of Torello’s guilt was strong even without
this brief portion of the victim’s testimony, and concluded that there was no
reasonable probability that the outcome of his case would have been different if the
jury had not heard this evidence. The court pointed out that the victim’s testimony
was corroborated by the testimony of the pastor, who intervened and eventually
secured Torello’s firearm from the vehicle. Id. at p. 4. Additional evidence
supporting the jury’s finding of guilt included the victim’s ripped coat, photos of
her injuries, and the testimony of other witnesses who took the victim’s statement
and observed her demeanor immediately after the incident. Id. The court stated
that the jury was free to assign weight to the evidence as it sees fit, and that
“evidence of Movant’s guilt was strong notwithstanding the brief references to his
history.” Id.
The Missouri Court of Appeals’ decision to deny Torello relief did not
involve or result in a decision that was contrary to or an unreasonable application
of federal law. The state court cited Strickland and properly applied it to the facts.
In applying Strickland, the state court found that even if Torello could show that
the introduction of prior conviction evidence was an error, he failed to show that he
was prejudiced by this error. This was an entirely reasonable decision based on the
evidence and the law.

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As established above, even if Torello were able to show that his counsel’s
performance was deficient, he has failed to demonstrate prejudice, a necessary
component to prevail on a claim of ineffective assistance of counsel. Accordingly,
his claim for habeas relief based on ineffective assistance of counsel will be
denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order in a § 2254 proceeding unless a circuit justice or judge issues a
Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a
certificate, the justice or judge must find a substantial showing of the denial of a
federal constitutional right. 28 U.S.C. § 2253(c)(2); see Tiedeman v. Benson, 122
F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). I find that reasonable jurists could not differ on any of Torello’s claims, so
I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that Sanchez Torello’s petition for writ of
habeas corpus (1) pursuant to 28 U.S.C. § 2254 is denied.

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IT IS FURTHER ORDERED that Torello is not entitled to a Certificate of
Appealability on any of his claims.
A separate judgment in accordance with this memorandum and order is
entered this same date.

______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 7th day of September, 2016.

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