Letica v. Russell et al

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Judge Noce's report and recommendation is adopted and sustained in its entirety. IT IS FURTHER ORDERED that Petitioner Ines Letica's Petition for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment in accordance with this Memorandum and Order is entered this same date.. Signed by District Judge Rodney W. Sippel on 9/29/17. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
INES LETICA,
Petitioner,
v.
TERRY RUSSELL,
Respondent.

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Case No. 4:14 CV 1446 RWS

MEMORANDUM AND ORDER
This matter is before me on Petitioner Ines Letica’s petition for writ of
habeas corpus pursuant to 28 U.S.C. ' 2254. I referred this matter to United States
Magistrate Judge David D. Noce for a report and recommendation on all
dispositive matters pursuant to 28 U.S.C. ' 636(b). Judge Noce filed his
recommendation that Letica’s habeas petition should be denied. Letica filed
objections to Judge Noce=s report. I have conducted a de novo review of Letica’s
claims and have carefully reviewed the record in this case. Based on that review, I
agree with Judge Noce that Letica’s petition should be denied.
Background
Letica was convicted of felony assault in the first degree and armed criminal
action. He was sentenced to two concurrent terms of fifteen years imprisonment.
Letica’s conviction was based on a fight he participated in on December 7, 2007,

outside a bar. On direct appeal the Supreme Court of Missouri reciting the facts1 of
the case noted that Letica approached victim in the bathroom of the bar and stated
that he wanted to talk to victim outside. (Resp. Ex. I, p. 2) The victim told
Lecita’s cousin that he wanted to be left alone and did not want to fight Lecita.
The victim and Lecita went out the back door and after a short verbal exchange
Lecita cut the victim’s throat and neck with a knife. The victim sustained more
knife cuts to his chin, chest, knee, and abdomen for a total of fifteen cuts. The
victim went back inside the bar and collapsed. (Id.) No one witnessed the fight.
Letica’s first two trials resulted in mistrials. The first mistrial was based on
a lack of prospective jurors in the jury pool. The second mistrial was based on a
deadlocked jury with one juror “holding out” and refusing to find Letica guilty
based on the lack of a third-party witness to the fight.
Legal Standard
Letica’s grounds for relief in his habeas petition are all based on ineffective
assistance of counsel claims. To prevail on a claim alleging ineffective assistance
of counsel, a defendant must satisfy the two-part test of Strickland v. Washington,
466 U.S. 668 (1984). For a convicted defendant to prove that his counsel was
ineffective, the defendant must first show that the counsel's performance was
deficient. Strickland, 466 U.S. at 687. This requires the defendant to show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
1

The Missouri Supreme Court’s determination of the facts of this case are presumed to be correct. 28 U.S.C. §
2254(e).
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guaranteed the defendant by the Sixth Amendment." Id. A defendant can
demonstrate that counsel's performance was deficient where counsel's performance
"'fell below an objective standard of reasonableness.'" Wiggins v. Smith, 539 U.S.
510, 522 (2003) (quoting Strickland, 466 U.S. at 688). But "[s]trategic choices
made after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable." United States v. Rice, 449 F.3d 887, 897 (8th Cir.
2006) (quoting Strickland, 466 U.S. at 690). And "[t]here is a 'strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance.'" Id. (quoting Strickland, 466 U.S. at 689). If the defendant fails to
show that his counsel was deficient, the court need not address the second prong of
the Strickland test. Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002).
Second, a defendant must demonstrate that the deficient performance was
"so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687. "The defendant 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.
The Eighth Circuit has described the Strickland test as follows: the questions
a court must ask are "[w]hether counsel's performance was in fact deficient and, if
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so, whether the defendant was prejudiced by the inadequate representation. If we
can answer 'no' to either question, then we need not address the other part of the
test." Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). When
evaluating counsel's performance, the court "must indulge in a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689. Considered objectively, counsel's
performance is gauged by "whether it was reasonable 'under prevailing
professional norms' and 'considering all the circumstances.'" Fields, 201 F.3d at
1027 (quoting Strickland, 466 U.S. at 688). "[W]e avoid making judgments based
on hindsight." Id. A reviewing court's "scrutiny of counsel's performance must be
highly deferential." Strickland, 466 U.S. at 689.
A federal district court’s power to review state court criminal decisions in a
federal habeas corpus proceeding is limited. Harrington v. Richter, 562 U.S. 86,
92 (2011)(“Under 28 U.S.C. § 2254(d), the availability of federal habeas relief is
limited with respect to claims previously “adjudicated on the merits” in state-court
proceedings.”). “As a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 102.
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Discussion
Letica asserts three grounds for relief.
In his first ground for relief Letica claims that his counsel was
constitutionally ineffective for not calling two of Letica acquaintances as witnesses
in the third trial.2 They both testified briefly at the second trial. The first witness
testified that he had witnessed a physical confrontation between Letica and the
victim outside the same bar around March 2007, nine months before the assault at
issue, which started as a shoving match. The second witness, a “close friend” of
Lecita’s, testified that he saw Letica and the victim get into an altercation at a
different bar at an unknown date or year.3 A scuffle broke out between Letica and
the victim and the victim and his friends were escorted out of the bar.
Letica’s trial counsel at the third trial did not call these witnesses. Neither of
these witnesses saw the incident at issue in this case. Letica presented a theory of
self-defense at trial. He testified about the two altercations he had with the victim
described by his witnesses at the second trial. The victim also admitted that he and
Letica had altercations in the past. Letica asserts that his counsel was ineffective
for failing to call Letica’s acquaintances to testify at the third trial because they
would have supported Lecia’s testimony of previous run-ins with the victim.
Letica raised this claim in his motion for post-conviction relief. The trial
2

In his objections to Judge Noce’s report Letica asserts that these were “disinterested” witnesses. (Obj. p. 12) That
is not supported by the record. The first witness drove Letica home and stayed there for 30 to 45 minutes. The
second witness was a “close friend” of Letica’s.
3
The witness, Senad Fale, when ask if the incident took place in 2007 stated, “It could be. Could not be. How do I
know what year it was”. (Resp. Ex. B, p. 415).
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judge denied the claim. The Missouri Court of Appeals affirmed that ruling. The
court noted that Letica’s trial counsel was aware of the content of these witnesses’
testimony and chose not to call them as witnesses. They were not present when the
victim was stabbed by Letica. The court noted that the decision to not call a
witness as a matter of trial strategy is virtually unchallengeable. (Resp. Ex. N, p 7
citing Worthington v. State, 166 S.W.3d 566, 577 (Mo. 2005)).
In his objection to Judge Noce’s report, Letica argues that the court of
appeals’ decision was an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. It was not. As a result, Letica’s
first ground for habeas relief will be denied.
In his second ground for relief, Letica asserts his trial counsel was
ineffective for failing to make a detailed argument in order to properly preserve a
reverse-Batson challenge to a venire person who ended up serving on the jury.
Letica’s counsel sought to use a preemptory challenge to strike a young white
female because: she was young; she wore glasses; she did not interact much during
voir dire; and trial counsel did not have a “good vibe” about her. The trial court
sustained the state’s reverse-Batson challenge based on the juror’s youth and
seated her on the jury. On direct appeal the Missouri Supreme Court found the
trial court’s decision based on the juror’s youth to be improper. However, the
Court found the error to be harmless. It noted that there is no federal constitutional
right to preemptory challenges and that a state may withhold them altogether.
Moreover, the subject juror was otherwise-qualified to sit on the jury and Letica
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failed to demonstrate that she was unfit to serve on the jury.
In its ruling on Letica’s post-conviction motion, the court of appeals noted
the Missouri Supreme Court’s ruling of the issue on direct appeal and found that
Letica has “not alleged or established that any juror who served on the jury at his
trial was not a qualified juror.” (Resp. Ex. N, p. 6)
In his objections to Judge Noce’s report, Letica argues that the court of
appeals decision was an unreasonable application of federal law as determined by
the United States Supreme Court and an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. However, Letica
fails to identify any additional information or detailed argument that trial counsel
should have preserved to prevail on the reverse-Batson challenge. As a result,
Letica’s second ground for habeas relief will be denied.
In his third ground for relief, Letica argues that his trial counsel was
ineffective for failing to object to a hypothetical question presented to the venire
panel by the state prosecutor during voir dire. The question was asked by the
prosecutor in an apparent reaction to the mistrial in the second trial where one
hold-out juror declined to convict because of the lack of third-party eyewitness
testimony of the assault. The prosecutor asked the panel to imagine they were
taking out the trash at night by themselves and that they were robbed. They would
be the only witness to the robbery. The prosecutor then asked the panel to agree
that sometimes the only witness to a crime may be the victim.
On direct appeal the Missouri Supreme Court, applying plain error review,
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found this line of questioning to be permissible. It held that the use of a
hypothetical unrelated to the facts of the case during voir dire to test potential juror
bias did not rise to the level of manifest injustice amounting to plain error. (Resp.
Ex. I, P.14) In reviewing Letica’s post-conviction motion, the court of appeals
held that Letica failed to show that he was prejudiced by trial counsel’s decision
not to object the prosecutor’s use of the hypothetical.
In his habeas petition, traverse, and objections to Judge Noce’s report, Letica
argues that the prosecutor’s use of the hypothetical was an improper but never
clearly or concretely states why it was improper. The closest Letica comes to
stating the basis for this ground for relief is in his traverse at pages 28-29 when he
cites to the case of Hobbs v. Lockhart, 791 F.2d 125 (8th Cir. 1986). Letica quotes
the following line from that case, “although there are no constitutional provisions
directly addressing the use of hypothetical questions during voir dire, there may be
circumstances where a party’s manner of conducting voir dire renders a jury
impartial and thereby triggers a Sixth Amendment violation.” Id. at 129.
Following this quote, Letica states in his traverse that “[i]t is exactly that
underlying Sixth Amendment violation that Petitioner has complained of and that
his counsel has let occur with his deficient performance.” (Traverse p. 29)
However, Letica fails to specify why the hypothetical at issue rendered the jury
“impartial.”
The hypothetical did not ask the venire panel to step in the shoes of the victim
in this case and picture themselves as the victim of a stabbing. It did not include a
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set of facts to be proven at trial. The hypothetical was not framed in such a way
that jurors seated from the venire panel had committed themselves to convict
Letica if the evidence were to develop in a certain manner. It merely led the panel
to understand that in some cases a perpetrator and a victim may be the only
witnesses to an offense. This hypothetical did not render the venire panel
impartial. As a result, this ground for relief will be denied because Letica’s trial
counsel’s failure to object to the hypothetical was neither deficient nor prejudicial.
Certificate of Appealability
I have considered whether to issue a certificate of appealability in this
matter. To grant a certificate of appealability, I must find a substantial showing of
the denial of a federal constitutional right. 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)
(citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994).
I believe that Letica has not made such a showing on the grounds raised in
his petition. Therefore, I will not issue a certificate of appealability.
Accordingly,
IT IS HEREBY ORDERED that Judge Noce=s report and recommendation
is adopted and sustained in its entirety.
IT IS FURTHER ORDERED that Petitioner Ines Letica’s Petition for Writ
of Habeas Corpus is DENIED.
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IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate judgment in accordance with this Memorandum and Order is
entered this same date.

_________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September, 2017.

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