White v. Wallace

Filing 29

MEMORANDUM AND ORDER: For the reasons discussed above, the Court concludes that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly e stablished federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make a substantial showing of the denial o f a constitutional right. Therefore, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). A judgment in accordance with this Memorandum will be entered separately. Signed by District Judge Carol E. Jackson on 4/17/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEWAYNE WHITE,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
IAN WALLACE,
Respondent.

No. 4:14-CV-1357 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the petition of DeWayne White for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
I.

Procedural Background

Petitioner DeWayne White is presently incarcerated at the Southeast
Correctional Center pursuant to the sentence and judgment of the Circuit Court of
St. Louis County.

On December 1, 2010, a jury found petitioner guilty of two

counts of statutory sodomy in the first degree, in violation of Mo. Rev. Stat. §
566.062; child molestation in the first degree, in violation of Mo. Rev. Stat. §
566.067; endangering the welfare of a child in the first degree, in violation of Mo.
Rev. Stat. § 568.045; and two counts of furnishing pornography to a minor, in
violation of Mo. Rev. Stat. § 573.040.

Resp.’s Ex. D at 50–55.

The trial court

sentenced petitioner as a prior offender to concurrent terms of life on the statutory
sodomy charges, fifteen years on the child molestation charge, seven years on the
endangerment charge, and one year on each charge of furnishing pornography to a
minor. Resp.’s Ex. D at 63–67. Petitioner appealed his conviction, and on January

17, 2012 the Missouri Court of Appeals affirmed. State v. White, 356 S.W.3d 880
(Mo. Ct. App. 2012); Resp.’s Ex. E.
Petitioner filed a timely motion for post-conviction relief pursuant to Missouri
Supreme Court Rule 29.15, which the post-conviction court denied without holding
an evidentiary hearing. Resp.’s Ex. H. On November 19, 2013, the Missouri Court
of Appeals affirmed the denial of post-conviction relief. White v. State, 414 S.W.3d
49 (Mo. Ct. App. 2013); Resp.’s Ex. L. On August 4, 2014, petitioner timely filed
this petition for relief pursuant to 28 U.S.C. § 2254.
II.

Factual Background

The factual findings of the state court are as follows:
On June 26, 2009, O.C. was visiting her friend K.W.’s house for a sleepover.
Resp.’s Ex. A, Tr. 140–41. O.C. and K.W. were both 12 years old at the time. Tr.
139–40, 173. K.W.’s mother was in the hospital, and petitioner, K.W.’s 32-year old
stepfather, was responsible for the care of O.C., K.W., and K.W.’s 6-year old
brother. Tr. 140, 174. Petitioner picked up his 22-year old nephew Lee Magee that
afternoon and they barbequed and drank beer outside. Tr. 124, 241.

Petitioner

told Magee that O.C. liked him. Tr. 125.
Later on that evening, petitioner, Magee, K.W. and O.C. were sitting on a
couch in the living room watching a movie when petitioner instructed O.C. to sit
closer to Magee until she was sitting on his lap. Tr. 143–44. Petitioner then told
Magee to take her to a bedroom and “fuck her up.” Tr. 144. After O.C. told Magee
she was uncomfortable, they returned to the living room.

Magee asked O.C. to

hold his beer and petitioner told her to drink some of it. Tr. 146. Magee asked

2

petitioner permission to take O.C. back into the bedroom. Petitioner told Magee he
could “use his hands and tongue, but not his dick.” Tr. 128, 147, 212.
In the bedroom, Magee laid O.C. on the bed, pulled down her pants, kissed
her on the mouth, touched her breasts, inserted his fingers into her vagina, and
used his mouth on her genitals. Tr. 148. K.W. knocked on the door twice while
Magee was with O.C. in the bedroom, interrupting them. Tr. 129, 177. Magee left
the room to tell petitioner that O.C. “wanted it all” and that “her pussy was wide.”
Tr. 212. Petitioner told Magee that this wasn’t the way it was supposed to happen
and Magee needed to leave.

Petitioner drove Magee home in the middle of the

night. Tr. 151. Petitioner apologized to O.C. in the car ride back to K.W.’s house,
stating that “this wasn’t the way it was supposed to go” and he would train her how
to have sex the next time she came over to K.W.’s house. Tr. 169, 212. Petitioner
made O.C. swear she wouldn’t tell anyone about what happened that night and
threatened her. Tr. 153–54.
Back at the house, petitioner turned the television to a channel with
pornography while K.W. and O.C. were with him in the living room.

Tr. 151.

Petitioner touched O.C.’s breasts and told her he was horny, but then fell asleep.
Tr. 152–53. The next day O.C. texted her older cousin about what had happened
and her cousin encouraged her to tell her mother. O.C. stated that she was trying
to find a way to go to the doctor by herself.
Megan Marietta, a forensic interviewer with the Children’s Advocacy Center
(CAC), also testified at trial. Tr. 197–98. On June 30, 2009, Marietta interviewed
O.C. Tr. 203. The interview was recorded and a portion of it was played at trial.
Tr. 212–17. O.C. told Marietta that while she was at her friend K.W.’s house the

3

week before, petitioner had touched her breast and Magee had performed sex acts
on her facilitated by petitioner.

Tr. 207–08.

Petitioner warned O.C. not to tell

anyone about what happened, stating that he was involved with the Blood gang,
had stabbed people, had spent ten years in the penitentiary and had been shot at
in the past. Tr. 208.
Petitioner testified on his own behalf that he did not instruct Magee to have
sexual contact with anyone and did not see Magee do something he considered to
be wrong. Tr. 236. Petitioner stated that he took Magee home late in the evening
on June 26th, because his stepdaughter K.W. asked him to do so. Tr. 236–37. He
did not know why she had asked him to. Petitioner also testified that he had turned
the television to pornography while he was flipping through channels, but he
immediately turned it off. Tr. 239. He stated that he never touched O.C.’s breast
or told her that he was horny.
Additional facts will be included as necessary to address petitioner’s claims.
III.

Legal Standard

When a claim has been adjudicated on the merits in state court proceedings,
habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court’s determination:
(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 proceeding.
28 U.S.C. § 2254(d)(1)–(2).

4

A state court’s decision is “contrary to” clearly established law if “it applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or
if it confronts a set of facts that is materially indistinguishable from a decision of
[the Supreme Court] but reaches a different result.”

Brown v. Payton, 544 U.S.

133, 141 (2005). “The state court need not cite or even be aware of the governing
Supreme Court cases, ‘so long as neither the reasoning nor the result of the statecourt decision contradicts them.’” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir.
2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to’ analysis
of the state court’s decision, [the federal court’s] focus is on the result and any
reasoning that the court may have given; the absence of reasoning is not a barrier
to a denial of relief.” Id.
A decision involves an “unreasonable application” of clearly established law if
“the state court applies [the Supreme Court’s] precedents to the facts in an
objectively unreasonable manner,” Payton, 125 S. Ct. at 1439; Williams v. Taylor,
529 U.S. 362, 405 (2000), or “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where it
should apply.”

Id. at 406.

“Federal habeas relief is warranted only when the

refusal was ‘objectively unreasonable,’ not when it was merely erroneous or
incorrect.” Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quoting Williams,
529 U.S. at 410–11).
IV.

Discussion

Petitioner presents four grounds for relief:

(1) the trial court violated his

“right to be tried only for the crime charged” when K.W. testified that petitioner was

5

training O.C. “like he was training me”; (2) trial counsel was ineffective for failing to
object and request a mistrial after the prosecutor presented evidence of his codefendant’s guilty plea as substantive evidence of petitioner’s guilt; (3) trial counsel
was ineffective for failing to effectively advocate for a more favorable sentencing
disposition at his sentencing proceeding; and (4) appellate counsel was ineffective
for failing to assert on direct appeal that the trial court erred in admitting, over
defense counsel’s objection, evidence of petitioner’s alleged gang affiliation.
A. Ground One: K.W.’s Testimony
Petitioner first argues that the trial court erred in overruling his motion for a
mistrial based K.W.’s testimony at trial that petitioner stated he was “going to train
[O.C.] just like he was training me.”

Tr. 180.

Trial counsel objected to K.W.’s

testimony as it related to any sexual contact petitioner had with K.W. as part of a
separate felony case and moved for a mistrial. The trial court denied the motion for
a mistrial, but offered to instruct the jury to disregard that portion of K.W.’s
testimony. Tr. 181. Defense counsel declined the trial court’s offer, opining that
repeating the statement would be even worse. Petitioner raised this claim on direct
appeal. Resp.’s Ex. B.
In its decision, the appellate court first noted that a trial court’s decision not
to grant a mistrial is given “enormous discretion” on appeal. State v. Benedict, 319
S.W. 483, 487 (Mo. Ct. App. 2010).

Also, the appellate court noted that a trial

court’s rulings on admissibility of evidence are reviewed for an abuse of discretion.
Id.

Discretion is abused “when a ruling is clearly against the logic of the

circumstances and is so unreasonable as to indicate a lack of careful consideration.”
State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). Furthermore, the appellate

6

court noted that it is not uncommon for witnesses to unexpectedly volunteer
inadmissible statements and then set forth five factors Missouri courts generally
examine in analyzing the prejudicial effect of an uninvited reference to other crimes
evidence. State v. Scott, 996 S.W.2d 745, 749 (Mo. Ct. App. 1999) (including “1)
whether the statement was, in fact, voluntary and unresponsive to the prosecutor's
questioning if the prosecutor asked the question or whether the prosecution
deliberately attempted to elicit the comments; 2) whether the statement was
singular and isolated, and whether it was emphasized or magnified by the
prosecution; 3) whether the remarks were vague and indefinite, or whether they
made specific reference to crimes committed by the accused; 4) whether the court
promptly sustained defense counsel's objection to the statement, and instructed the
jury to disregard the volunteered statement; and 5) whether in view of the other
evidence presented and the strength of the state's case, it appeared that the
comment played a decisive role in the determination of guilt”).
In reaching its decision, the appellate court found that: (1) K.W.’s statement
was voluntary and the objectionable part was unresponsive to the prosecutor’s
question on direct examination; (2) the prosecutor had not expected K.W. to offer
to the objectionable statement, did not emphasize it, and the statement was
singular and isolated; (3) K.W.’s statement was fairly vague and indefinite because
the word “training” did not specifically refer to any sexual acts and no readily
apparent inference could have been made by the jury since K.W. did not testify to
witnessing any sexual acts committed against O.C. nor did she testify as to any
sexual acts committed against herself; (4) the trial court offered to instruct the jury
to disregard the statement, but defense counsel refused this curative measure; and

7

(5) the isolated comment did not play a decisive role in the determination of
petitioner’s guilt in light of the evidence presented in its totality, including O.C.’s
own corroborating testimony that petitioner had told her he was going to “train”
her. Resp.’s Ex. E.
The appellate court’s determination that the trial court did not abuse its
discretion in overruling the defense attorney’s request for a mistrial was not
contrary to or an unreasonable application of clearly established federal law, nor
was it an unreasonable determination of the facts. Federal courts on habeas review
“will reverse a state court evidentiary ruling only if the petitioner shows that the
alleged improprieties were so egregious that they fatally infected the proceedings
and rendered his entire trial fundamentally unfair.”

Anderson v. Goeke, 44 F.3d

675, 679 (8th Cir. 1995) (internal quotations omitted). “To carry that burden, the
petitioner must show that there is a reasonable probability that the error
complained of affected the outcome of the trial—i.e., that absent the alleged
impropriety the verdict probably would have been different.”

Id. (internal

quotations omitted).
K.W.’s testimony regarding petitioner’s “training” of her was a single,
unsolicited statement not referenced during the remainder of the trial.

The trial

court offered to give a limiting instruction to the jury, but petitioner’s trial counsel
declined the offer.
supported

Furthermore, the totality of the evidence presented at trial

petitioner’s

conviction

regardless

of

K.W.’s

statement.

O.C.

independently testified that petitioner told her he would “train” her “next time” and
Magee testified that petitioner had instructed him to take O.C. into the bedroom
and only use specific body parts. As such, petitioner is unable to show that K.W.’s

8

statement fatally infected the proceedings or that there is a reasonable probability
her statement affected the outcome of trial. Petitioner thus is not entitled to relief
on ground one.
B. Grounds Two, Three, and Four:
Counsel

Ineffective Assistance of

Petitioner’s remaining claims for relief involve allegations of ineffective
assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that his attorney’s performance fell below an
objective standard of reasonableness and that he was prejudiced thereby.
Strickland v. Washington, 466 U.S. 668, 687 (1984).

With respect to the first

Strickland prong, there exists a strong presumption that counsel’s conduct falls
within the wide range of professionally reasonable assistance. Id. at 689. In order
to establish prejudice, petitioner “must show that there is 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; see also Paulson v. Newton

Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (“Merely showing a conceivable
effect is not enough; a reasonable probability is one sufficient to undermine
confidence in the outcome.”) (quoting Worthington v. Roper, 631 F.3d 487, 498
(8th Cir. 2011)).
“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 (U.S. 2011)).
First, under Strickland, the state court must make a predictive
judgment about the effect of the alleged deficiencies of counsel on the
outcome of the trial, focusing on whether it is “reasonably likely” that
9

the result would have been different absent the errors. Strickland,
466 U.S. at 696 . . . . To satisfy Strickland, the likelihood of a
different result must be “substantial, not just conceivable.”
[Harrington v. Richter, 131 S. Ct. 770, 792 (U.S. 2011).] Under
AEDPA, [federal courts] must then give substantial deference to the
state court’s predictive judgment. 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. at 785. 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. at 786.
Id. at 831–32.
1.

Admission of co-defendant’s guilty plea

In his second ground for relief, petitioner asserts that his trial counsel was
ineffective for failing to object and request a mistrial after the prosecutor presented
evidence of his co-defendant’s guilty plea. During trial, the prosecutor referred to
Magee’s guilty plea in her opening statement and Magee testified on direct
examination that he had pleaded guilty to statutory sodomy and child molestation
with respect to his conduct with O.C. Resp.’s Ex. A, Tr. 113, 126. Petitioner raised
this claim in his motion for post-conviction relief. Resp.’s Ex. G, Ex. J. The Missouri
Court of Appeals evaluated and rejected this claim on appeal of the denial of that
motion. Resp.’s Ex. L.
The appellate court concluded that the record adequately showed that
petitioner had failed to establish that he was prejudiced by trial counsel’s failure to
object. The jury had heard testimony from both Magee and O.C. about the sexual
acts committed by Magee that plainly constituted sodomy and child molestation.
Given the fact that Magee admitted to having sexual contact with O.C. at trial, the
appellate court was not persuaded that the additional testimony that Magee had

10

pleaded guilty as a result of committing those acts had any substantial impact on
the jury. Ex. L at 6.
The

appellate

court’s

decision

was

not

based

on

an

unreasonable

determination of the facts, nor was it contrary to or an unreasonable application of
Strickland. Petitioner is unable to show a reasonable probability that, but for his
trial counsel’s failure to object, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694. Independent of the references to Magee’s
guilty plea, Magee, O.C. and K.W. testified to facts sufficient to support petitioner’s
conviction. Accordingly, petitioner is not entitled to relief on ground two.
2.

Failure to advocate for favorable sentence

In his third claim, petitioner asserts that his trial counsel was ineffective for
“failing to effectively advocate for a more favorable sentencing disposition.” Pet. at
8.

Petitioner contends that trial counsel should have argued that the trial court

consider sentencing petitioner consistent with the recommendations made in the
sentencing assessment report (SAR). Pet.’s Reply at 50 [Doc. #19]. The Missouri
Court of Appeals rejected this claim on appeal from the denial of petitioner’s postconviction motion.

Resp.’s Ex. L.

Specifically, the appellate court rejected

petitioner’s contention that a request for a lesser sentence by his trial counsel
would have had an impact on the sentencing court. The trial court knew of the SAR
recommendations, the appellate court noted, but consciously chose to reject the
recommendations and impose a sentence that exceeded even the aggravating
sentence recommended on the SAR.
The appellate court’s decision of this claim was neither contrary to or an
unreasonable application of clearly established federal law, nor was it based on an

11

unreasonable determination of the facts in the light of the evidence presented in
the state court proceeding.

As noted by the appellate court, the motion court,

which was the same as the trial court, “forcefully” stated that it was “‘inconceivable
that any argument by trial counsel would have been persuasive to the Court since
the Court’s sentence exceeded the aggravating sentence of twenty years as
recommended on the SAR.’”

Resp.’s Ex. L at 7 (quoting the motion court).

As

such, petitioner is unable to show that, but for his counsel’s allegedly deficient
advocacy at sentencing, the outcome of the sentencing proceeding would have
been different. Accordingly, petitioner is not entitled to relief on ground three.
3.

Evidence of alleged gang affiliation on direct appeal

In his fourth ground for habeas relief, petitioner claims that appellate counsel
was ineffective for failing to assert on direct appeal that the trial court erred in
admitting evidence of petitioner’s gang affiliation.

Petitioner contends that the

evidence and repeated references to gang affiliation constituted inadmissible
evidence of prior uncharged wrongful acts that were irrelevant and highly
prejudicial at trial. Pet.’s Reply at 56.
During O.C.’s direct examination at trial, petitioner’s trial counsel objected to
O.C. testifying as to petitioner’s former gang affiliation. Tr. 155. The trial court
overruled the objection. O.C. then testified as to petitioner’s prior statements to
her that he was a gang member, had stabbed people, and had been shot at by
others. Tr. 156. O.C. stated that petitioner had made her swear she would not tell
anyone about what happened that night. Later in the trial, petitioner’s trial counsel
objected to the presentation of a portion of the recording of the CAC interview with
O.C. pertaining to petitioner’s alleged gang affiliation. Tr. 194–95. Petitioner’s trial

12

counsel argued that this evidence was more prejudicial than probative.

The

prosecutor argued that the evidence was probative, because it showed how O.C.
felt threatened by petitioner and why O.C. did not report the sexual contact with
Magee and petitioner to her mother. Tr. 196. The prosecutor also noted that in the
defense attorney’s opening statement, she had asked the jury to consider why, if
the events as described had happened to O.C., she had not told her mother. Tr.
197. The trial court found that the evidence was probative under the circumstances
and permitted its admission.
The Missouri Court of Appeals denied this claim on appeal from the denial of
petitioner’s post-conviction motion.

Resp.’s Ex. L.

The appellate court first

explained that while evidence of prior uncharged misconduct is inadmissible for the
purpose of showing the propensity of a defendant to commit wrongful acts, such
evidence may be admissible when it is part of the surrounding circumstances
relating to the charged crime so that it presents a complete and coherent picture of
the events as they transpired. State v. Watson, 391 S.W.3d 18, 21 (Mo. Ct. App.
2012). Also, the appellate court explained, the prosecution is allowed to present
otherwise inadmissible evidence to explain or counteract a negative inference raised
by defense counsel.

State v. Pierce, 932 S.W.2d 425, 431 (Mo. Ct. App. 1996).

The appellate court thus determined that the trial court properly admitted the
evidence as presenting a complete picture of the events that transpired and as
counteracting defense counsel’s attack on O.C.’s credibility in her opening
statement. Resp.’s Ex. L at 9.
The appellate court’s decision did not involve an unreasonable application of
federal law or an unreasonable determination of facts based on the evidence

13

presented at trial.

See Smith v. Robbins, 528 U.S. 259, 289 (2000) (applying

Strickland to a claim of ineffective assistance of appellate counsel).

Additionally,

petitioner has not shown that appellate counsel’s performance fell outside the wide
range of professionally reasonable assistance. See Jones v. Barnes, 463 U.S. 745,
751 (1983) (“Neither Anders nor any other decision of this Court suggests,
however, that the indigent defendant has a constitutional right to compel appointed
counsel to press nonfrivolous points requested by the client, if counsel, as a matter
of professional judgment, decides not to present those points.”); see also Smith v.
Robbins, 528 U.S. 259, 288 (2000) (citing Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986) for the principle that “[g]enerally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective assistance of
counsel be overcome”).

Petitioner furthermore is unable to show a reasonable

probability that trial court’s evidentiary ruling affected the outcome of trial,
rendering his entire trial fundamentally unfair. Anderson, 44 F.3d at 679. Thus,
petitioner is not entitled to relief on ground four.
V.

Conclusion

For the reasons discussed above, the Court concludes that petitioner has
failed to establish that he is entitled to relief based on state court proceedings that
were contrary to, or an unreasonable application of, clearly established federal law,
or based upon an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also
failed to make a substantial showing of the denial of a constitutional right.
Therefore, the Court will not issue a certificate of appealability. See Cox v. Norris,
133 F.3d 565, 569 (8th Cir. 1997).

14

A judgment in accordance with this Memorandum will be entered separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 17th day of April, 2017.

15