McArthur v. Bowersox

Filing 29

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED. IT IS FURTHER ORDERED that Petitioner's Motion to Hold Habeas Corpus Petition in Abeyan ce (Doc. 23) is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order.. Signed by Magistrate Judge Shirley P. Mensah on 3/7/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID A. MCARTHUR,
Petitioner,
v.
MICHAEL S. BOWERSOX,
Respondent.

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No. 4:14-CV-1660-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Missouri state prisoner David A. McArthur’s
(“Petitioner’s”) Petitioner’s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (Doc. 1) and Petitioner’s motion to hold habeas corpus petition in abeyance (Doc. 23).
The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c)(1). (Doc. 15). For the following reasons, both the petition for a
writ of habeas corpus and the motion to hold the petition in abeyance will be denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The following background is taken from the Missouri Court of Appeals’ opinion

affirming the motion court’s denial of Petitioner’s motion for post-conviction relief:
Viewed in the light most favorable to the verdict, the evidence at trial
revealed the following: [Petitioner] lived with his wife and her two children,
Victim One and Victim Two. When Victim One was approximately nine years of
age, [Petitioner] would rub lotion on Victim One’s bottom and insert his penis
into Victim One’s anus. When Victim Two was between four and twelve years of
age, [Petitioner] often woke her at night and inserted his finger in her vagina or
made her suck or rub his penis. Twice, he tried to insert his penis in her vagina
and once, he stuck a pen in her vagina. Eventually, Victims One and Two told
their mother about [Petitioner]’s behavior, and she called the police.
The State charged [Petitioner] with one count of attempted statutory rape
in the first degree and five counts of statutory sodomy in the first degree. The trial
court held a three-day jury trial. During the first stage, Catherine Crowley, the
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assistant prosecuting attorney who tried the case against [Petitioner], presented
the testimony of several witnesses including Victim One, Victim Two, and the
victims’ mother. [Petitioner] testified in his own defense, acknowledging that he
had previously pleaded guilty to endangering the welfare of a child based on
conduct occurring in 2004. He denied the allegations against him in this case,
stating that he never touched either victim inappropriately. On cross-examination,
[Petitioner] again admitted that he had pleaded guilty to endangering the welfare
of a child. At the conclusion of the first stage of trial, the jury found [Petitioner]
guilty of attempted statutory rape in the first degree and four counts of statutory
sodomy in the first degree.
During the punishment stage,[1] Ms. Crowley presented the testimony of
Victim One, Victim Two, the victims’ mother, and [Petitioner]’s biological
daughter. During her opening statement, Ms. Crowley told the jury that
[Petitioner] had previously “pled guilty to endangering the welfare of a child in
the first degree. He had originally been charged with statutory sodomy in the first
degree. There was a plea bargain . . . . The victim in that case was his natural
daughter . . . .” [Petitioner]’s daughter testified that when she was about thirteen
years of age, [Petitioner] touched her vagina and asked if he could “put his mouth
on [her] vagina.” During closing argument, Ms. Crowley asked the jury to
sentence [Petitioner] to life imprisonment because [Petitioner] already “had a
second chance.” Following the presentation of evidence, the jury assessed and
declared punishment as life imprisonment for each conviction.
On April 28, 2010, the trial court orally pronounced its order, judgment,
and sentence, imposing five concurrent terms of life imprisonment.
Resp’t. Ex. I at 1-3 (footnotes omitted). 2
In his direct appeal, Petitioner raised only one point of trial error: that the trial court erred
when it allowed the State to present improper character evidence in the punishment phase that
Petitioner had previously sexually molested his daughter. Resp’t Ex. B at 12. The Missouri Court
of Appeals affirmed the conviction and sentence. Resp’t Ex. E at 1-4. Petitioner subsequently
filed a pro se Rule 29.15 motion for post-conviction relief. Resp’t Ex. F at 6-10. Through

1

Pursuant to Mo. Rev. Stat. § 557.036, the trial proceeded in two stages. In the first stage, the
jury determined whether Petitioner was guilty of the charged offenses; in the second stage, the
jury assessed and determined punishment. See Resp’t Ex. I at 2 n.1.
2

Petitioner’s sentence for attempted statutory rape was later vacated and remanded for resentencing, and Petitioner’s conviction and sentence on one statutory sodomy count were later
vacated. See Resp’t Ex. I at 3-4 n.4. Those decisions are not relevant to the instant petition.
2

appointed counsel, Petitioner subsequently filed an amended motion for post-conviction relief,
asserting one claim of sentencing error and four different claims of ineffective assistance of trial
counsel. Resp’t Ex. F at 32-69. On October 3, 2012, after an evidentiary hearing, the motion
court found the claim of sentencing error to be meritorious and vacated a portion of Petitioner’s
sentence, but it denied Petitioner’s claims of ineffective assistance of trial counsel. Resp’t Ex. F
at 93-98. Petitioner appealed the motion court’s denial of one of his ineffective assistance claims
(failure to move to disqualify the Jefferson County Prosecuting Attorney’s Office), and the
Missouri Court of Appeals affirmed the motion court’s decision. Resp’t Ex. I.
On September 14, 2014, Petitioner filed his pro se petition in the instant action. Petitioner
raised four claims: (1) violation of his due process rights based on the trial court’s decision to
allow the prosecution to present improper character evidence in the punishment phase; (2)
ineffective assistance of trial counsel based on (a) the failure to move to disqualify the Jefferson
County Prosecuting Attorney’s Office and request the appointment of a special prosecutor, and
(b) the failure to call impeachment witness Joan Bryan during the penalty phase of the trial; (3)
prosecutorial misconduct based on the prosecutor’s prejudicial argument and comments during
the penalty phase; and (4) violation of Petitioner’s due process rights based on the trial court’s
failure to instruct the jury that it could convict him of a lesser included offense. Respondent filed
a response (Doc. 17), and Petitioner filed a traverse (Doc. 22).
Petitioner also filed a Motion to Hold Habeas Corpus Petition in Abeyance, in which he
asks the Court to stay this case to permit him to return to state court to present his unexhausted
claims. (Doc. 23). The Court will begin by addressing the motion to hold habeas corpus petition
in abeyance.

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II.

MOTION TO HOLD HABEAS CORPUS PETITION IN ABEYANCE
A petitioner must exhaust his or her state law remedies before a federal court may grant

relief on the merits of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Petitioner acknowledges that some of the claims in his
petition have not been properly presented to the state court, suggests that those claims have not
been exhausted, and asks this Court to stay the present action to permit him to return to state
court to exhaust those claims. Petitioner is apparently asking the Court to use the “stay and
abeyance” procedure outlined in Rhines v. Weber, 544 U.S. 269, 275-76 (2005), under which a
district court confronted with a habeas petition containing both exhausted and unexhausted
claims may stay the federal habeas action to permit the petitioner to present his unexhausted
claims to the state courts before returning to federal court. Id.
No stay and abeyance is appropriate here, because Petitioner has no remaining nonfutile
state court remedies and therefore has satisfied the exhaustion requirement. “[I]f no state court
remedy is available for [an] unexhausted claim–that is, if resort to the state courts would be
futile–then the exhaustion requirement in [28 U.S.C.] § 2254(b) is satisfied,” though the claim
may have been procedurally defaulted in state court. Armstrong v. Iowa, 418 F.3d 924, 926 (8th
Cir. 2005). See also Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas petitioner who
has defaulted his claims in state court meets the technical requirements for exhaustion; there are
no state remedies ‘available’ to him.”); Winfield v. Wallace, No. 4:15-CV-959 CAS, 2015 WL
9489508, at *2-*3 (E.D Mo. Dec. 30, 2015) (denying motion to stay and abey because Petitioner
had no non-futile state court remedies left to exhaust). In such cases, a stay and abeyance is
unnecessary, and the federal district court must instead consider whether the claim has been

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procedurally defaulted and, if so, whether the default may be excused. Armstrong, 418 F.3d at
926.
Here, as to those claims Petitioner did not present to the state courts, there are no currently
available, non-futile remedies by which Plaintiff could obtain review in the state court.
Petitioner’s motion for post-conviction relief and appeal have already been fully resolved by the
state courts, and successive motions for post-conviction relief are not permitted. See Rule
29.15(l). Petitioner suggests that he was “abandoned” by counsel, which would permit the
motion court to reopen a post-conviction judgment. See Spencer v. Missouri, 255 S.W.3d 527
(Mo. Ct. App. 2008) (once thirty days have passed since entry of judgment on motion for postconviction relief, the motion court “has no jurisdiction to consider reopening a post-conviction
judgment, except to address claims of abandonment by post-conviction counsel”).
“Abandonment by post-conviction counsel occurs when: ‘(1) when post-conviction counsel fails
to file an amended motion and the record shows the movant was deprived of meaningful review
of the claims; or (2) when post-conviction counsel files an untimely amended motion.’”
Eastburn v. Missouri, 400 S.W.3d 770, 774 (Mo. 2013) (quoting Moore v. Missouri, 328 S.W.3d
700, 702 (Mo. 2010), see also Gehrke v. Missouri, 280 S.W.3d 54, 57 (Mo. 2009). Here,
however, Petitioner’s post-conviction counsel filed both a timely amended motion and a timely
appeal from the denial of that motion, so no abandonment occurred.
Petitioner also suggests that he needs to return to state court to file a state habeas petition
under Mo. Sup. Ct. Rule 91. However, “Rule 91 is not a part of Missouri’s established appellate
review process and such a petition would not satisfy the exhaustion requirement of 28 U.S.C.
§ 2254.” Winfield, 2015 WL 9489508, at *3 n.5 (citing Poison v. Bowersox, 595 F.3d 873, 875
(8th Cir. 2010)). Moreover, Petitioner has no non-futile claim under Rule 91. “[I]f a petitioner

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fails to raise a claim for relief that could have been asserted in an appeal or in a post-conviction
motion, the petitioner normally is barred from raising the claim in a subsequent petition for writ
of habeas corpus [under Rule 91].” State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo.
2010); see also State ex rel. Green v. Moore, 131 S.W.3d 803, 805 (Mo. 2004). To obtain relief
under Rule 91, a petitioner must show “a jurisdictional defect, cause for failing to timely raise
the . . . constitutional defect and prejudice resulting from the defect, or manifest injustice such as
either a freestanding or a gateway claim of actual innocence.” State ex rel. Woodworth v.
Denney, 396 S.W.3d 330, 337 (Mo. 2013). To demonstrate cause and prejudice, the petitioner
must show “that the factual or legal basis for a claim was not reasonably available to counsel, or
that some interference by officials made compliance impracticable.” Id. (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). See also State ex rel. Clemons v. Larkins, 475 S.W.3d 60, 76
(Mo. 2015). Petitioner does not allege a jurisdictional defect, does not assert that the factual or
legal basis for any claim was not reasonably available to him, and does not suggest any basis for
finding that a manifest injustice would result if his claim were not considered.
Because Petitioner has no non-futile state court remedies by which he can present his
claims, he has met the technical requirements for exhaustion, and a stay and abeyance is not
appropriate. Therefore, the motion to hold this case in abeyance will be denied.
III.

LEGAL STANDARDS
A. Standard for Reviewing Claims on the Merits
Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by AEDPA [the

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Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of
underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28
U.S.C. § 2254). Under AEDPA, a federal court may not grant relief to a state prisoner with
respect to any claim that was adjudicated on the merits in the state court proceedings unless the
state court’s adjudication of a 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.”
28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established Supreme Court
precedent “if the state court arrives at a conclusion opposite to that reached by [the United States
Supreme] Court on a question of law or if the state court decides a case differently than [the
United States Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). A state court decision involves an “unreasonable
application” of clearly established federal law if it “correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08; see also
Bell v. Cone, 535 U.S. 685, 694 (2002). “Finally, a state court decision involves an unreasonable
determination of the facts in light of the evidence presented in the state court proceedings only if
it is shown that the state court’s presumptively correct factual findings do not enjoy support in
the record.” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal
quotation marks omitted); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state
court factual findings are presumed correct unless the habeas petitioner rebuts them through clear
and convincing evidence) (citing 28 U.S.C. § 2254(e)(1)).

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B. Procedural Default
To preserve a claim for federal habeas review, a state prisoner must present that claim to
the state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers,
446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state procedural rules, any claims not properly
raised before the state court are procedurally defaulted.” Id. The federal habeas court will
consider a procedurally defaulted claim only “where the petitioner can establish either cause for
the default and actual prejudice, or that the default will result in a fundamental miscarriage of
justice.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v. Groose, 75
F.3d 408, 41 (8th Cir. 1996) (en banc)). To demonstrate cause, a petitioner must show that “some
objective factor external to the defense impeded [the petitioner’s] efforts to comply with the
State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a
petitioner must demonstrate that the claimed errors “worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). Lastly, in order to assert the fundamental miscarriage of justice
exception, a petitioner must “‘present new evidence that affirmatively demonstrates that he is
innocent of the crime for which he was convicted.’” Murphy v. King, 652 F.3d 845, 850 (8th Cir.
2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
IV.

DISCUSSION
A. Ground One: Improper Character Evidence
In Ground One, Petitioner argues that the trial court abused its discretion by allowing the

prosecution to present character evidence in the punishment phase, in violation of his right to due
process and a fair trial. Specifically, Petitioner objects to the presentation of his daughter’s

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testimony that Petitioner had sexually molested her and to several of the prosecutor’s comments
about that testimony, including the prosecutor’s comments that Petitioner had previously been
charged with statutory sodomy but pleaded to endangering the welfare of a child and that he had
already “had his second chance.” Petitioner raised this claim in his direct appeal, and the
Missouri Court of Appeals considered it and rejected it on the merits. Resp’t Ex. E at 1-4.
To the extent that Petitioner’s claim is that the trial court erred in ruling on an evidentiary
matter or in permitting the prosecutor to make an improper remark, the claim is not cognizable
for purposes of habeas review. “Rules of evidence and trial procedure are usually matters of state
law. A federal issue is raised only where trial errors infringe on a specific constitutional
protection or are so prejudicial as to amount to a denial of due process.” Bucklew v. Luebbers,
436 F.3d 1010, 1018 (8th Cir. 2006) (quoting Adail v. Wyrick, 711 F.2d 99, 102 (8th Cir. 1983)).
The Eighth Circuit has found that “there is no due process violation simply because a trial court
admits evidence of a defendant’s uncharged bad acts.” Harris v. Bowersox, 184 F.3d 744, 752
(8th Cir. 1999). Instead, to show a federal due process violation, the habeas petitioner “must
show that the alleged error rendered the entire trial fundamentally unfair—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. (quoting
Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991)).
The Missouri Court of Appeals’ rejection of this claim was not contrary to, or an
unreasonable application of, clearly established federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. A
review of the record does not suggest that the introduction of the challenged evidence and
argument during the penalty phase rendered Petitioner’s entire trial unfair and rose to the level of

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a due process violation. Missouri law expressly permits the introduction of evidence concerning
“the history and character of the defendant” during the penalty phase of trial. See Resp’t Ex. E at
2 (citing Mo. Rev. Stat. § 557.036.3 (2003)). That evidence may include evidence of criminal
conduct for which a defendant was never convicted, provided that the conduct is proven by a
preponderance of the evidence. Id. at 2 (citing State v. Fassero, 256 S.W.3d 109, 119 (Mo.
2008)). The Missouri Court of Appeals analyzed the facts here in light of this Missouri law and
concluded that the evidence was properly admitted, and this Court cannot second-guess that
decision. See Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012) (“We do not second-guess
the decision of a Missouri state court on Missouri law.”); see also Estelle v. McGuire, 502 U.S.
62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state law questions.”). Moreover, although the evidence about Petitioner’s
daughter may well have been inflammatory, when the record as a whole is considered, Petitioner
cannot show a reasonable likelihood that his sentence would have been different absent the
introduction of that evidence. Petitioner’s daughter was not the only witness to testify in
Petitioner’s case. The jury heard detailed testimony from two other victims and their mother,
both during trial and during the penalty phase. One victim testified that when the victim was
between the ages of nine and twelve, Petitioner rubbed lotion on the victim and inserted
Petitioner’s penis into his anus. Resp’t Ex. A at 268-70. 3 The other victim testified that when
she was between the ages of four and fourteen, Petitioner often woke her at night, inserted his
finger or other objects in her vagina, or made her suck or rub his penis. Id. at 323-42. In light of
all of the detailed testimony from Petitioner’s victims and the nature of his crimes, Petitioner
cannot show a reasonable likelihood that his sentence would have been different absent the
3

For Respondent’s Exhibit A, the page numbers cited refer to the page numbers of the
electronically filed document.
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prosecution’s introduction of evidence regarding the incidents with his daughter, and so he
cannot show that the Missouri Court of Appeals’ adjudication of his claim was contrary to
federal law. Thus, Ground One will be denied.
B. Ground Two: Ineffective Assistance of Counsel—Failure to Move to Disqualify
the Jefferson County Prosecuting Attorney’s Office and Failure to Call
Impeachment Witness During Penalty Phase
In Ground Two, Petitioner claims that his trial counsel was ineffective for two reasons.
First, he argues that his trial counsel was ineffective based on his failure to move to disqualify
the Jefferson County Prosecuting Attorney’s Office (“JCPAO”) due to a conflict of interest and
request a special prosecutor handle the case instead. Second, he argues that his trial counsel was
ineffective based on a failure to call impeachment witness Joan Bryan to testify regarding
statements Petitioner’s daughter made during the penalty phase. The Court will address the two
ineffective assistance claims presented in Ground Two separately.
1. Failure to Move to Disqualify the JCPAO and Request a Special Prosecutor
Petitioner first argues that his trial counsel should have moved to disqualify the JCPAO
because the Jefferson County Prosecutor, Forrest Wegge, represented Petitioner in a previous
case in which he was charged with acts related to allegations of abuse of his daughter. Petitioner
argues that Mr. Wegge gained information through his former representation that his office could
use to Petitioner’s disadvantage. Petitioner raised this claim in his post-conviction motion in state
court, the motion court denied the claim after an evidentiary hearing, and the Missouri Court of
Appeals affirmed the judgment of the motion court. See Resp’t Ex. I.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective assistance of
counsel, Petitioner must show both that “[his] counsel’s performance was deficient” and that “the

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deficient performance prejudiced [his] defense.” 466 U.S. at 687; see also Paulson v. Newton
Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance, Petitioner
must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Judicial
scrutiny of counsel’s performance must be highly deferential,” and Petitioner bears a heavy
burden in overcoming “a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance” and “might be considered sound trial strategy.” Id. at 689
(citation and internal quotation marks omitted). To show 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.
When an ineffective assistance claim has been addressed by the state court, this Court
must bear in mind that “[t]aken 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 (2011)). In the context of a habeas claim, it is not sufficient for
a petitioner to “show that he would have satisfied Strickland’s test if his claim were being
analyzed in the first instance,” Bell, 535 U.S. at 698-99. “Rather, he must show that the [state
court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id. at
699.
A review of the record shows that the Missouri Court of Appeals did not apply Strickland
to the facts of this case in an objectively unreasonable manner. The Missouri Court of Appeals
properly noted that the Strickland analysis applied. Resp’t Ex. I, at 6. With respect to the first
prong, the court first reviewed the record and found that a motion to disqualify under Mo. Rev.

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Stat. § 56.110 would likely have failed, because the evidence showed that Mr. Wegge had
minimal contact with both Petitioner’s prior case and the case at issue and because there was no
evidence that any confidential information from Petitioner’s prior case was (or could have been)
used against Petitioner. Id. at 7-8. This was a reasonable conclusion in light of the record, and in
any case, the Court may not second-guess the state court’s finding that such a motion would have
been unsuccessful under Missouri law. See Arnold, 675 F.3d at 1086; see also Estelle, 502 U.S.
at 67-68. The Missouri Court of Appeals also reasonably found that the decision not to file the
motion constituted a reasonable trial strategy, noting among other things trial counsel’s
testimony that he thought it would be best not to file such a motion because based on his
experience, a special prosecutor would be “much more difficult to deal with” than the JCPAO.
Id. at 9. Finally, with regard to the second prong of Strickland, the Missouri Court of Appeals
reasonably found that Petitioner could not establish prejudice, because Petitioner offered nothing
other than his own speculation that prosecution by a different prosecutor would have led to a
different result. Id. at 10.
Because the Missouri Court reasonably applied Strickland in evaluating this claim, this
portion of Ground Two will be denied.
2. Failure to Call Impeachment Witness During Penalty Phase
Petitioner also argues that his trial counsel was ineffective based on his failure to call Joan
Bryan as a witness during the penalty phase to testify regarding contradicting statements made
by his daughter. Petitioner raised this claim in his motion for post-conviction relief, Resp’t Ex. F
at 45-51, but he did not raise it in the appeal from the denial of that motion, Resp’t Ex. G.
Therefore, it is procedurally defaulted. See Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994)
(“Failure to raise a claim on appeal from the denial of a post-conviction motion erects a

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procedural bar to federal habeas review.”); see also Arnold, 675 F.3d at 1086-87 (“In Missouri,
‘a claim must be presented at each step of the judicial process in order to avoid default.’”)
(quoting Jolly, 28 F.3d at 53)). As discussed above, Petitioner can overcome such a procedural
default only if he can “demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
Reading Petitioner’s pleadings broadly, Petitioner appears to suggest that ineffective
assistance of his post-conviction counsel in not raising this ineffective assistance claim at the
appellate level constitutes “cause” for the procedural default of this claim. That argument is
without merit. Although ineffective assistance of post-conviction counsel may constitute cause
for the failure to raise a claim in an initial post-conviction proceeding, Martinez v. Ryan, 132 S.
Ct. 1309 (2012), ineffective assistance of post-conviction appellate counsel does not constitute
cause to excuse a state procedural default. See Arnold, 675 F.3d at 1087 (“Martinez offers no
support, however, for the contention that the failure to preserve claims on appeal from a
postconviction proceeding can constitute cause.”).
Moreover, even if Petitioner could overcome the procedural bar, this claim would fail on
its merits. The motion court found that Ms. Bryan could not have testified about the information
she obtained from Petitioner’s daughter while working as a guardian ad litem, because she was
bound by court rules from revealing such information. Resp’t. Ex. F at 94-95. It further found
that trial counsel was not ineffective for failing to call Ms. Bryan as a witness, because a
reasonably competent attorney would have recognized that asking Ms. Bryan to violate court
rules and codes of professional conduct by revealing that confidential information would have
been a problem. Resp’t Ex. F at 96. Particularly in light of Strickland’s deferential standards, it

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was not objectively unreasonable for the motion court to find that Petitioner’s trial counsel was
not ineffective for failing to call a witness who could not have testified without violating court
rules.
For all of the above reasons, Ground Two is denied in its entirety.
C. Ground Three: Prosecutorial Misconduct—Prejudicial Comments and Argument
During Penalty Phase
Petitioner argues in Ground Three that the prosecution’s prejudicial comments and
arguments during the penalty phase amounted to prosecutorial misconduct and violated his right
to due process and a fair trial. In particular, Petitioner points to the prosecutor’s statement, “But
most importantly, [Petitioner’s daughter] is going to come in here today and this is for
[Petitioner’s daughter] . . . several years ago justice wasn’t done at all. [Petitioner’s daughter] got
kicked to the curb.” Doc. 1 at 8. Petitioner did not raise this claim in his direct appeal or in postconviction proceedings. Thus, this claim is procedurally defaulted and Petitioner is barred from
raising it on habeas review unless he can demonstrate cause and prejudice or can show that
failure to consider the claim will result in a fundamental miscarriage of justice. See, e.g., Arnold,
675 F.3d at 1087 (“In Missouri, a claim must be presented ‘at each step of the judicial process in
order to avoid default”) (quoting Jolly, 28 F.3d at 53); Skillicorn v. Luebbers, 475 F.3d 965, 976
(8th Cir. 2007) (constitutional claim not properly presented to Missouri courts was procedurally
defaulted and could not be reached by federal habeas court absent a showing of cause and
prejudice).
In a supplement to his traverse, Petitioner appears to argue that cause for the default exists
because during the direct appeal phase, he was in a diagnostic center and did not have access to a
law library and barely had access to a phone and writing materials. See Doc. 27, at 2. However,
Petitioner was represented by counsel, who was fully capable of presenting Petitioner’s
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meritorious claims. Moreover, the correspondence submitted by Petitioner shows that he was
able to communicate with his counsel by letter during the appeals process. See Doc. 27-1. Thus,
Petitioner’s presence in the diagnostic center does not constitute cause for his failure to present
this claim to the state court.
Petitioner also appears to suggest that ineffective assistance of his direct appeal counsel
in not raising the claim of trial error constitutes cause for the procedural default of this claim. He
notes that his attorneys were state public defenders and that “state public defenders will not raise
all claims even if meritable from fear that the state court will chastise their license,” Doc. 27, at
2. Ineffective assistance of direct appeal counsel may constitute “cause” to excuse a procedural
default, but only if the petitioner properly raised the claim of ineffective assistance of direct
appeal counsel in appropriate state court proceedings. See Edwards, 529 U.S. at 450-54. In
Missouri, claims of ineffective assistance of trial or appellate counsel must be brought through a
Rule 29.15 motion for post-conviction relief. Mo. Sup. Ct. Rule 29.15(a). An ineffective
assistance of counsel claim is procedurally defaulted if a petitioner fails to raise it in a Rule 29.15
motion or fails to raise it in the appeal from the denial of such a motion. See Interiano v.
Dormire, 471 F.3d 854, 856 (8th Cir. 2006).
Here, Petitioner raised a claim of ineffective assistance of direct appeal counsel related to
this issue in his pro se motion for post-conviction relief. Resp’t Ex. F at 6-10. However, his postconviction relief counsel did not include it in the amended Rule 29.15 motion for post-conviction
relief, Resp’t Ex. J at 33-51, or in the appeal from the denial of that motion, Resp’t Ex. K at 1113. Therefore, the claim of ineffective assistance of direct appeal counsel was never properly
before the Missouri courts, is procedurally defaulted, and cannot constitute cause for the default
of Ground Three. See Interiano, 471 F.3d at 856-57 (claim included in pro se motion for post-

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conviction relief under Rule 29.15 but not included in amended motion by appointed counsel or
in appeal from denial of that motion is procedurally defaulted); see also Wills v. Missouri, 321
S.W.3d 375, 386-87 (Mo. Ct. App. 2010) (under Missouri law, an amended motion for postconviction relief supersedes a previous pro se motion, and claims included in a pro se motion for
post-conviction relief but not in a subsequent amended motion are “not properly before the
motion court because they [a]re a nullity”).
Even if Petitioner could overcome the procedural bar, this claim would fail on its merits.
“‘As a general rule, prosecutorial misconduct does not merit federal habeas relief unless the
misconduct infected the trial with enough unfairness to render [a] petitioner’s conviction a denial
of due process.’” Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th Cir. 2002) (quoting Louisell v.
Dir. of Iowa Dept. of Corr., 178 F.3d 1019, 1023 (8th Cir. 1999)). “To amount to a due process
violation, improper remarks by a prosecutor must be ‘so egregious that they fatally infect[] the
proceedings and render[] [a defendant’s] entire trial fundamentally unfair.’” Id. (quoting Moore
v. Wyrick, 760 F.2d 884, 886 (8th Cir. 1985)). To satisfy this standard, “[a] 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. (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995)).
As discussed above with respect to Ground One, Petitioner cannot show that the
prosecutor’s comments during the penalty phase concerning his abuse of his daughter were so
egregious that they rendered Petitioner’s entire trial fundamentally unfair or that absent the
remarks, there is a reasonable probability that Petitioner would have received a different
sentence. As discussed above, the evidence from Petitioner’s daughter regarding Petitioner’s past
abuse of her was admissible under Missouri law at the penalty phase, and it was not egregious

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error for the prosecution to discuss that admissible testimony. Moreover, as discussed with
respect to Ground One, although these comments may well have been inflammatory, Petitioner
cannot show any reasonable likelihood that his sentence would have been different absent the
prosecutor’s comments. As noted above, even without the prosecution’s remarks, the jury still
had the victims’ testimony regarding Petitioner’s repeated abuse, the victims’ mother’s
testimony, and all other evidence presented in making their sentencing determination. In light of
all of the detailed testimony from Petitioner’s victims and the nature of his crimes, Petitioner
cannot show a reasonable likelihood that Petitioner’s sentence would have been different absent
the prosecution’s introduction of evidence regarding the incidents with his daughter. Therefore,
Ground Three will be denied.
D. Ground Four: Sentencing Error—Failure to Instruct Jury on Lesser Included
Offense
In Ground Four, Petitioner argues the trial court erred by not informing the jury that they
could make a decision of guilt of a lesser included offense in violation of his due process rights
and fair trial. This claim is procedurally defaulted due to Petitioner’s failure to properly raise it in
his direct appeal. Missouri requires the raising of constitutional claims at the first available
opportunity. See In re J.M.N., 134 S.W.3d 58, 73 (Mo. Ct. App. 2004); Jefferson v. McSwain,
No. 4:13-CV-542-ACL, 2016 WL 160639, at *5 (E.D. Mo. Jan. 14, 2016). Here, Petitioner was
aware of the facts underlying this claim at the time of his trial, and he could have raised this
claim on direct appeal. However, he did not do so. See Resp’t Ex. B. Thus, the claim is
procedurally defaulted and can be addressed only if Petitioner shows cause and prejudice or that
a fundamental miscarriage of justice would result from the failure to address the claim.
As with Ground Two, Petitioner appears to argue that his direct appeal counsel’s failure
to raise this claim constitutes “cause” to excuse the procedural default. See Doc. 27, at 2.
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However, because Petitioner did not raise that claim in in his amended motion for postconviction relief or in the appeal from the denial of his motion for post-conviction relief, Resp’t.
Ex. G, it is procedurally defaulted and cannot constitute cause to excuse a default of another
claim. See Edwards, 529 U.S. 450-54; Interiano, 471 F.3d at 856.
Even if Petitioner could overcome his procedural default, Ground Four would fail on its
merits. The Supreme Court has never held that there is a constitutional requirement that lesserincluded offense instructions be given in noncapital cases. See Carney v. Fabian, 487 F.3d 1094,
1097 (8th Cir. 2007). The Eighth Circuit has “held that ‘the failure to give a lesser-included
offense instruction in a noncapital case rarely, if ever, presents a constitutional question.’” Green
v. Groose, 959 F.2d 708, 709 (8th Cir. 1992) (quoting Pitts v. Lockhart, 911 F.2d 109, 112 (8th
Cir. 1990)). Because Petitioner has not identified any federal right that was violated, this claim
fails. See, e.g., Randell v. Norman, No. 4:12CV01020 AGF, 2015 WL 1456977, at *4 (E.D. Mo.
March 30, 2015) (petitioner’s claim that his constitutional rights were violated by the trial court’s
refusal of his proffered instruction on a lesser included offense failed because there was no
constitutional requirement to give lesser-included offense instructions). Ground Four fails on the
merits and will be denied.
V.

CONCLUSION
For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28

U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28
U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the
petitioner “has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2);
Tiedman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a showing that

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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) (citation
omitted). The Court finds that reasonable jurists could not differ on Petitioner’s claim, so the
Court will not issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Hold Habeas Corpus Petition
in Abeyance (Doc. 23) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 7th day of March, 2016.

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