Schallon v. Russell

Filing 13

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Kristen E. Schallon's Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus By a Person in State Custody (ECF No. 1 ) is DENIED. IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89, 142 L. Ed. 2d 70 (1998). A judgment dismissing this case is filed herewith. Signed by District Judge Ronnie L. White on July 5, 2017. (BRP)

UNITED STATES DISTRJCT COURT
EASTERN DISTRJCT OF MISSOURJ
EASTERN DIVISION
KRISTEN E. SCHALLON,
Petitioner,
vs.
TERRY RUSSELL,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:14CV1601 RLW

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Kristen E. Schallon Petition under 28 U.S.C.
§2254 for Writ of Habeas Corpus By a Person in State Custody (ECF No. 1 ("Motion")).
Because this Court has determined that Schallon's claims are inadequate on their face and the
record affirmatively refutes the factual assertions upon which Schallon's claims are based, this
Court decides this matter without an evidentiary hearing. 1
BACKGROUND

A St. Louis County jury found Schallon guilty of thirteen counts of statutory sodomy,
three counts of forcible rape, one count of first-degree statutory rape, twelve counts of
second-degree statutory sodomy, and nine-counts

1

of first-degree

sexual misconduct.

"A district court does not err in dismissing a movant' s motion without a hearing if ( 1) the
movant's 'allegations, accepted as true, would not entitle' the movant to relief, or '(2) the
allegations cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact."' Buster v. US, 447 F.3d 1130, 1132
(8th Cir. 2006) (quoting Sanders v. US, 341 F.3d 720, 722 (8th Cir. 2003)(citation and quotation
marks omitted); Tejada v. Dugger, 941 F.2d 1551 , 1559 (11th Cir. 1991) (in a§ 2254 case,
holding that "[a] petitioner is not entitled to an evidentiary hearing .. . when his claims are . . .
contentions that in the face of the record are wholly incredible.").

(Respondent's Exhibit E, p. 1-2).

The trial court ordered all counts to run concurrently for a

total of thirty years' imprisonment in the Department of Corrections.
On September 11, 2014, Schallon filed this Motion seeking relief based upon the
following grounds:
(1)

The trial court committed error when it denied Schallon' s motion for a mistrial;

(2)

Schallon' s appellate attorney was ineffective for failing to raise some claims on appeal.

Both claims were presented to the Missouri Court of Appeals, which denied relief.

ST AND ARD OF REVIEW

Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the Constitution or laws or treaties of the United
States."

28 U.S.C. § 2254(a). "[I]n a§ 2254 habeas corpus proceeding, a federal court's review

of alleged due process violations stemming from a state court conviction is narrow."

v. Goeke, 44 F.3d 675 , 679 (8th Cir. 1995).

Anderson

"[A]n application for a 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 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."
U.S .C. § 2254(d).

28

"'A state court's decision is contrary to ... clearly established law if it applies

a rule that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set
of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless

arrives at a [different] result."' Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (quoting
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)).

The Supreme Court has emphasized the

phrase "Federal law, as determined by the Supreme Court," refers to "the holdings, as

opposed

to the dicta, of this Court's decisions," and has cautioned that§ 2254(d)(l) "restricts the source of
clearly established law to [the Supreme] Court's jurisprudence."

Williams, 529 U.S. at 412.

A

State court "unreasonably applies" federal law when it "identifies the correct governing legal rule
from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state
prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] 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."

Williams, 529 U.S. at 407.

A State court decision may be

considered an unreasonable determination "only if it is shown that the state court's presumptively
correct factual findings do not enjoy support in the record."

Ryan v. Clarke, 387 F.3d 785, 791

(8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(l)).

DISCUSSION
I. Denial of Motion for Mistrial
Schallon alleges that the trial court committed error by refusing to grant his motion for a
mistrial. (ECF No. 1 at 5). Schallon contends that the mistrial should have been granted because
the state allegedly failed to comply with the discovery order when it did not disclose an inculpatory
statement made by Schallon, and a witness testified about the statement at trial.
The Missouri Court of Appeals considered Schallon' s argument and denied relief holding:
In his first point on appeal, Schallon asserts that the trial court abused its
discretion in overruling his request for a mistrial after Victim testified to an
inculpatory statement made by Schallon that was not disclosed to the defense. We
disagree.
The decision whether to impose a sanction, including mistrial, for
noncompliance with discovery rules rest within the "sound discretion" of the trial
court. State v. Wallace, 43 S.W.3d 398, 402 (Mo.App. E.D.2001). We review a trial

court's decision for abuse of discretion, and will reverse only when there is a
reasonable likelihood that the discovery violation affected the result of the trial. Id.
at 402-03.
The trial court here did not abuse its discretion in denying a mistrial,
because there was no reasonable likelihood that Victim's testimony affected the
result of the trial. Id. The court ordered the jury to disregard Schallon's statement
made during a confrontation with Victim's boyfriend in which he suggested his
guilt by saying, "Please take a shot at me. I deserve it." However, the record also
included both Schallon's confession of guilt to police, which was admitted without
objection, and a letter Schallon wrote to Victim in which he apologized for his
"inappropriate behavior." Further, Schallon's confession to the police corroborated
Victim's properly admitted testimony describing Schallon's years of abuse.
Although his statement saying he deserved to be hit should have been
disclosed to the defense before trial in accordance with the discovery order, the
statement was cumulative to properly admitted evidence and there was no prejudice
to Schallon. State v. Edwards, 116 S.W.3d 511 , 534-35 (Mo. bane 2003) (when
statement in violation of discovery rules was cumulative to similar statements
already in record, its admission did not prejudice defendant; thus, court's order for
jury to disregard statement was reasonable sanction). Because the statement did not
affect the result of the trial, the trial court did not abuse its discretion in ordering the
jury to disregard the statement rather than granting a mistrial. Id.
Point denied.

State v. Schallon, 341 S.W.3d 795, 798- 99 (Mo. Ct. App. 2011).
The Court holds that Schallon has not demonstrated, by clear and convincing evidence, that
the presumptively correct determination by the Missouri Court of Appeals is not reasonable and
not entitled to deference. 28 U.S.C. §2254(e)(l).
First, to the extent that Schall on complains about the admissibility of his inculpatory
statement, such state evidentiary law issues are not reviewable by this Court. State evidence law
claims are not reviewable by this Court. See Estelle v. McGuire , 502 U.S. 62, 67- 68 (1991) ("we
reemphasize that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions . In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States"). If
Schallon' s claims that his inculpatory statement should not have been admitted because it was a

violation of the discovery order and the Judge should have granted a mistrial, then such claim is
not reviewable in a federal habeas action because it raises only state law questions.
Second, even if this issue is reviewable in federal habeas action, then Schall on is not
entitled to relief. As noted by the Missouri Court of Appeals, the complained of statement was
cumulative because the jury heard Schallon' s confession to the police and heard about the
so-called apology letter Schallon wrote to his victim. The trial court also instructed the jury to
disregard the statement. See United States v. Urick, 431 F.3d 300, 304 (8th Cir. 2005) (quoting

United States v. Coleman, 349 F.3d 1077, 1087 (8th Cir.2003) (quoting United States v. Muza, 788
F.2d 1309, 1312 (8th Cir.1986)) (the admission of a prejudicial statement is '"ordinarily cured by
striking the testimony and instructing the jury to disregard the remark. "'). The Court defers to
that the Missouri Court of Appeals' findings, determined that Schallon' s claim is meritless, and
denies relief on this ground.
II. Ineffective Appellate Counsel

Schallon argues that appellate counsel was ineffective because appellate counsel did not
raise sufficiency of the evidence claims based upon what Schallon described as "a mistaken
belief."
To support an ineffective assistance of counsel claim, a convicted movant must first show
"that his counsel's performance was deficient, and that he suffered prejudice as a result."

Paul

v. United States, 534 F.3d 832, 836 (8th Cir. 2008) (citing Strickland v. Washington , 466 U.S .
668, 687 (1984)).

The movant must also establish prejudice by showing "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different."
2008).

Strickland, 466 U.S . at 694; Malcom v. Houston , 518 F.3d 624, 626 (8th Cir.

A reasonable probability is less than "more likely than not," Kyles v. Whitley, 514 U.S.

419, 434 (1995), but more than a possibility. White v. Roper, 416 F.3d 728 , 732 (8th Cir. 2005).

A reasonable probability "is a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694. "The applicable law here is well-established: post-conviction relief
will not be granted on a claim of ineffective assistance of trial counsel unless the petitioner can
show not only that counsel's performance was deficient but also that such deficient performance
prejudiced his defense."

United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir.

2005) (citations omitted).
The Court holds that the opinion of the Missouri Court of Appeals did not result 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 result in a decision that
was based on an unreasonable determination of the facts in light of the evidence.
The Court of Appeals held as follows:
Following adjudication of his direct appeal, the movant sought
post-conviction relief on five bases. He asserted that appellate counsel was
ineffective for failing to challenge on direct appeal the sufficiency of the evidence
on 12 counts of second-degree statutory sodomy. He claimed that trial counsel was
ineffective for failing to object to an incorrect definition of "deviate sexual
intercourse" in the verdict-directing instructions for all 15 counts of second-degree
statutory sodomy, for failing to request a lesser-included offense instruction for one
of the counts of second-degree statutory sodomy, and for failing to move to dismiss
22 of the various charges based on the statute of limitations. The movant also
claimed that the written sentence and judgment contained multiple clerical errors.
The motion court conducted an evidentiary hearing at which appellate
counsel testified. Appellate counsel summarized her actions in preparing the brief,
including compiling the statutes in effect at the time of each offense. She stated,
however, that "without having my file here, I don't know ifl can fully answer the
question [about preparing the brief] but those [things] are what I remember." She
observed that the movant's brief took her longer to prepare than five average
appeals combined. After refreshing her recollection with the brief, appellate
counsel was able to summarize the points raised on direct appeal. She recalled, after
reviewing this Court's opinion, that the State conceded reversible error on three of
her four points, and that this Court granted relief on those issues.
Post-conviction counsel allowed appellate counsel to review the file briefly
before the hearing, but denied her the opportunity to have all of her notes before her
while she testified. Appellate counsel stated that she reviewed every count, took
notes on each, and made some determination about whether to include them in the

direct appeal. However, she could not remember precisely what that determination
was with regard to the 12 counts at issue here. She stated three times that she could
only speculate.
In an offer of proof, post-conviction counsel stated that she gave appellate
counsel the opportunity to review the file more than two months earlier, and again
immediately before the hearing. Post-conviction counsel acknowledged that she
brought to the hearing only some of appellate counsel's notes.
In its order, the motion court observed that post-conviction counsel would
not allow appellate counsel to consult her file from the appeal, including her notes
made during preparation of the brief, and that appellate counsel "was not able to
recall and provide probative answers regarding this claim." The motion court
declined to find appellate counsel ineffective when post-conviction counsel "would
not permit her to provide proper answers regarding her handling of the appeal." The
motion court also noted that the evidence at trial would allow the jury to infer that
the movant's conduct in connection with these offenses involved more than
touching and that penetration occurred.

***
The movant appeals only the motion court's denial of relief for his claim of
ineffective assistance of appellate counsel. Our review of a motion court's denial of
a Rule 29 .15 motion for post-conviction relief is limited to a determination of
whether the findings of fact and conclusions of law are clearly erroneous. Rule
29.15(k); Johnson v. State, 388 S.W.3d 159, 162- 63 (Mo. bane 2012); Davidson v.
State, 308 S.W.3d 311 , 316 (Mo.App. E.D.2010). A motion court's findings and
conclusions are clearly erroneous only if, after a full review of the record, this
Court is left with a definite and firm impression that a mistake has been made.
Johnson, 388 S.W.3d at 163; Davidson, 308 S.W.3d at 316.
The movant alleges ineffective assistance of appellate counsel. To prevail,
the movant must establish that counsel failed to raise a claim of error that was so
obvious that a competent and effective attorney would have recognized and
asserted it. Tisius v. State, 183 S. W.3d 207, 215 (Mo. bane 2006). The alleged error
must have been sufficiently serious so as to create a reasonable probability that, had
it been raised, the outcome of the appeal would have been different. Id. The movant
has the burden to prove a claim for post-conviction relief by a preponderance of the
evidence. Rule 29.15(i); Holman v. State, 88 S.W.3d 105, 109 (Mo.App.
E.D.2002). " [A] court must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance; that is, the
[movant] must overcome the presumption that, under the circumstances, the
challenged action ' might be considered sound trial strategy."' Id. at 110 (quoting
Stricklandv. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984)). Appellate counsel has no obligation to present every issue asserted in the
motion for new trial when she makes a strategic decision to cull some arguments in
favor of others. Id.

In the 12 counts at issue here, the State charged the movant with committing
second-degree statutory sodomy by touching the victim's vagina with his hand
between August 7, 1996 and August 6, 1999, when the victim was between the ages
of 14 and 16. Section 566.064.1 at that time provided that " [a] person commits the
crime of statutory sodomy in the second degree if being twenty-one years of age or
older, he has deviate sexual intercourse with another person who is less than
seventeen years of age." During this time, "deviate sexual intercourse" meant "any
act involving the genitals of one person and the mouth, tongue, or anus of another
person or a sexual act involving the penetration, however slight, of the male or
female sex organ or the anus by a finger, instrument or object done for the purpose
of arousing or gratifying the sexual desire of any person." Section 566.010(1).
The movant argues that the statute in effect at the time of the charged
offenses did not define "deviate sexual intercourse" to include hand-to-genital
contact that did not result in penetration. Because "deviate sexual intercourse" is an
essential element of second-degree statutory sodomy, contact that at the time in
question did not meet the statutory definition of "deviate sexual intercourse" could
not constitute second-degree statutory sodomy. The movant contends that the
evidence was insufficient to support his conviction of 12 of the counts of
second-degree statutory sodomy. Appellate counsel did not raise this issue on
direct appeal, and the movant asserts that appellate counsel was thus ineffective.
When faced with a challenge to the sufficiency of the evidence, we accept
as true all evidence favorable to the State, including all favorable inferences drawn
from the evidence, and we disregard all evidence and inferences to the contrary.
State v. Grim, 854 S.W.2d 403 , 405 (Mo. bane 1993). We limit our review to
determining whether there is sufficient evidence from which a reasonable juror
might have found the defendant guilty beyond a reasonable doubt. Id. The motion
court ruled only "that a submissible case likely can be made, or was made, as to
these counts." This ruling does not adequately address the question of
submissibility. We have reviewed the evidence to determine whether sufficient
evidence exists to support the movant's convictions for the 12 counts of
second-degree statutory sodomy at issue here.
The victim testified to numerous incidents when the movant touched her vagina
with his fingers. She described awakening at night to find the movant's fingers
already in her vagina. Sergeant Owens testified that the movant admitted putting
his finger inside the victim's vagina, and abusing the victim on a daily basis from
the time she was eight years old until she left home at age 16. The movant told
Sergeant Owens that abuse occurred inside the house, both in the living room and
the victim's bedroom, in his car parked on the street, in his car in the garage, and in
the park, locations that corresponded to the victim's account of specific incidents.
Viewing the evidence and inferences therefrom in the light most favorable to the
verdict, we hold that the evidence was sufficient to support the movant's conviction
of each of the 12 counts of second-degree statutory sodomy at issue. Consequently,
appellate counsel could not be ineffective for failing to challenge the sufficiency of
the evidence on these counts on direct appeal.

Furthermore, the motion court conducted an evidentiary hearing at which
appellate counsel testified. Appellate counsel characterized her review of the file
shortly before the hearing as "hasty at best." She explained that she had asked to
have all of her notes when she testified, and she repeated that request while on the
stand. She stated that post-conviction counsel had not warned her that she would
not have all her notes available at the evidentiary hearing. In an offer of proof,
post-conviction counsel acknowledged that she brought to the hearing only some of
appellate counsel's notes.
Appellate counsel could not remember the details of the case with any
precision. When asked why she did not challenge the sufficiency of the evidence on
the 12 counts at issue, appellate counsel stated:
I remember specifically, and my notes reflect-looking at each and
every count. ... So I took notes on the issue and I did not raise them
[sic]. I must have made some determination, but, no, I do not recall
what that determination was exactly ... .
She stated three times that she was speculating about her decisions and reasoning
with regard to the direct appeal, and she stated that she could not answer some
questions without having access to her notes. Appellate cmmsel explained that she
had numerous discussions with the movant and his significant other about which
issues to address on appeal. But without her notes, appellate counsel stated that she
could not testify whether they discussed the specific issue involved here.
We again observe that the movant was convicted of a total of 45 counts
involving six different sexual offenses committed over an eight-year period, during
which time some of the relevant statutes changed multiple times. Appellate counsel
testified that, because of the complexity of the case, the movant's appeal took her
longer to prepare than five average appeals combined. This Court issued its opinion
on the direct appeal 16 months before the evidentiary hearing; thus, appellate
counsel worked on the appeal long before she testified without benefit of her
complete file and notes at the evidentiary hearing.
We evaluate the challenged conduct from appellate counsel's perspective at
the time. Holman, 88 S.W.3d at 110. The game-playing in which post-conviction
counsel engaged impairs our review. Post-conviction counsel denied appellate
counsel access to her complete file and notes, which would have allowed appellate
counsel to meaningfully testify to her handling of the direct appeal-her reasoning,
decisions, and strategy-at the time she prepared the appeal. Without this critical
information, appellate counsel was forced to speculate. Forcing appellate counsel
to speculate about her reasoning and decisions robbed her testimony of its
probative force, leaving the motion court and this Court with nothing substantial to
evaluate. The movant bears the burden to rebut the presumption that counsel
provided reasonable professional assistance, and that counsel made all decisions as
part of her reasonable strategy. Id. On the record before us, this presumption is not
overcome. Appellate counsel may have reasonably decided not to challenge certain

counts that had no effect on the overall sentence the movant faced when the
evidence on those counts was not clearly insufficient.

Schallon v. State, 435 S.W.3d 120, 122- 26 (Mo. Ct. App. 2014)

The Court of Appeals determined that Schallon was not prejudiced by his appellate counsel's
performance, particularly given the amount of evidence against him.

Also, Schallon was not

prejudiced by appellate counsel' s performance, given the presumption of reasonableness in
Strickland. The Court holds that Schallon provided no material that demonstrates that the

Missouri Court of Appeals' decision was unreasonable.
Schallon has not shown a reasonably probability that the result of the proceeding would
have been different and, therefore, the Court denies his habeas motion on this claim.

See

Armstrong v. Kemna, 534 F.3d 857, 866 (8th Cir. 2008) ("To demonstrate Strickland prejudice,

Armstrong 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.") (internal citation omitted).
'"Absent contrary evidence,' we assume that appellate counsel's failure to raise a claim was an
exercise of "sound appellate strategy." Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998) (quoting
Sidebottom v. Delo, 46 F.3d 744, 759 (8th Cir. 1995)).

As noted by the appellate court, during the evidentiary hearing, appellate counsel testified
only that she had difficulty recalling all of her specific reasons for not bringing that claim because
she was not permitted her notes. The Court notes that the burden is on Schallon to prove that his
appellate counsel' s performance was deficient. Appellate counsel' s mere failure, without her
notes, to recall the basis for her decision is insufficient to meet the Strickland standard for deficient
performance. Further, the Court holds that Schallon was not prejudiced because there was
sufficient evidence to convict him. At trial, the victim testified about repeated and egregious

abuse that worsened over time. (Respondent's Exhibit A, at 197 (saying the abuse "progressed, it
progressed worse"). The victim testified that when she was twelve years old she woke up to find
Schallon's fingers were in her vagina. (Respondent's Exhibit A, at 197). The victim further
testified that Schallon frequently rubbed all over her vagina with his fingers . (Respondent's
Exhibit A, at 197-98). The victim discussed an incident, after she lost her virginity at age 14,
when Schallon started to insert his fingers into her vagina. (Respondent's Exhibit A, at 198-200,
210-15). The police detective who interviewed Schallon testified that Schallon admitted that the
victim allowed him to put his fingers into her vagina. (Respondent's Exhibit A at 416-17).
Schallon told the police detective that the abuse happened so many times that he could not estimate
the number of incidents and that some of the abusive behavior had been repeated every day.
(Respondent's Exhibit A, at 418-19). Based upon this cumulative testimony, the Court holds that
the evidence was sufficient to sustain his convictions. Thus, the Court holds there was sufficient
evidence and Schallon was not prejudiced by his appellate counsel' s performance on appeal. The
Court denies relief on this ground.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Kristen E. Schallon' s Petition under 28

U.S.C. §2254 for Writ of Habeas Corpus By a Person in State Custody (ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing

of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834, 119 S. Ct. 89, 142 L. Ed.

2d 70 (1998).
A judgment dismissing this case is filed herewith.

Dated this 5th day of July, 2017.

~~

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE