Webster v. Cassady

Filing 10

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Webster's petition for writ of habeas corpus [# 1 ] is denied. A separate judgment in accord with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 07/08/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JUSTIN E. WEBSTER,
Petitioner,
vs.
JAY CASSADY,
Respondent.

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Case No. 4:14 CV 1762 CDP

MEMORANDUM AND ORDER
Petitioner Justin E. Webster is currently incarcerated at the Jefferson City
Correctional Center in Jefferson City, Missouri. In 2011, Webster was sentenced
to twenty years imprisonment following his conviction on one count of first degree
assault. The Missouri Court of Appeals afirmed Webster’s conviction on direct
appeal (Resp. Exh. E). The Circuit Court denied Webster’s motion for postconviction relief, and the Missouri Court of Appeals affirmed the denial. (Resp.
Exh. I). Webster now seeks habeas corpus relief under 28 U.S.C. § 2254 on one
ground: ineffective assistance of counsel. Webster’s claim does not entitle him to
habeas corpus relief because the state court’s determination that trial counsel
exercised reasonable strategy in choosing not to request a lesser included offense
instruction is entirely reasonable. Accordingly, I will deny his petition.

Factual Background
The events underlying the conviction took place in September of 2009.
Webster arrived at a location near the victim’s residence to pick up a friend whom
he had dropped off earlier that evening in the same location. The victim appeared
on the scene where Webster had parked his car to await his friend, and the two men
engaged in an altercation. During the course of the fight, Webster claimed the
victim pinned him to the ground face-down, and Webster “defended himself by
flailing his arms backward” while holding a knife that he regularly carried in his
pocket for his job as a roofer. After Webster left the scene, he called 911, and
police later arrested him for the assault.
Webster was charged with first degree assault and armed criminal action.
Webster’s case at trial rested on a self-defense argument. Ultimately, a jury
convicted Webster on both counts: first degree assault and armed criminal action.
Because of an error in the armed criminal action jury instruction, the trial court
immediately set aside the conviction on that count at trial counsel’s request.
Webster received twenty years in prison for first degree assault.
At the close of trial, the trial court judge questioned Webster as to his
satisfaction with counsel’s assistance, and Webster indicated he was dissatisfied
because counsel did not requested a lesser included offense instruction for second
degree assault. Webster had requested counsel to seek a second degree assault
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instruction on several occasions, and counsel declined to do so because he did not
think it was Webster’s best choice for trial strategy. In post-conviction
proceedings, counsel testified he had repeatedly attempted to explain his decision
to Webster. Counsel declined to seek such an instruction because he did not want
to invite the jury to compromise between acquittal and the first degree assault
charge; instead, he chose an “all-or-nothing” strategy in the hopes of obtaining the
former. Counsel believed the lesser included offense instruction would offer a
negligible benefit to Webster. Counsel testified that regardless of whether the jury
convicted Webster of first or second degree assault, it still had the option to convict
him for the armed criminal action charge, which carried a maximum sentence of
life in prison. Because of Webster’s prior criminal history, Counsel believed it
likely that Webster would receive a lengthy prison sentence under the armed
criminal action charge. 1 At that time, counsel also mistakenly believed a
conviction for armed criminal action would automatically require Webster to serve
85 percent of any sentence he received. In counsel’s estimation, this further
decreased any benefit Webster would receive by submitting a second degree
assault instruction to the jury.

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The first degree assault charge also carried a maximum sentence of life in prison, while the
second degree assault charge carried a maximum sentence of ten years. Because the armed
criminal action remained an option for the jury with either assault charge, counsel believed the
possibility of receiving a lengthy sentence remained unchanged even if the jury chose to convict
Webster of second degree assault.
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The Missouri Court of Appeals affirmed the denial of post-conviction relief
and found counsel’s all-or-nothing strategy did not depend on this mistaken belief
about the law, but instead was reasonable trial strategy. (Resp. Exh I at p. 16). The
Court of Appeals further concluded that Webster could not demonstrate any
prejudice from counsel’s decision because the jury’s finding of guilt on the greater
charge demonstrated that there was no reasonable probability that the jury would
have rendered a verdict on the lesser offense.
Petitioner now seeks relief under 28 U.S.C. § 2254. His sole ground for
relief is ineffective assistance of trial counsel. Webster alleges trial counsel erred in
failing to request the lesser included offense instruction because the facts presented
at trial irrefutably supported a conviction for second degree assault, but not first
degree assault. Specifically, Webster believes the evidence showed he acted with
recklessness and not intent.
Standard of Review
A petitioner is entitled to habeas relief under 28 U.S.C. § 2254(d) only if the
state court’s adjudication resulted in a decision,
(1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States”; or

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(2) “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). A state court decision is “contrary to” clearly
established federal law if it either arrives at a conclusion opposite to that reached
by the Supreme Court on a question of law or if the state court arrives at a result
opposite to one reached by the Supreme Court on materially indistinguishable
facts.” Miller v. Dormire, 310 F.2d 600, 603 (8th Cir. 2002) (internal citations
omitted). Factual findings of the state court are entitled to a presumption of
correctness, which may only be rebutted by clear and convincing evidence. §
2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Ineffective Assistance of Counsel
The Sixth Amendment governs a claim for ineffective assistance of counsel.
In order to succeed, a petitioner must prove counsel’s assistance fell below an
“objective standard of reasonableness….under prevailing professional norms.”
Strickland v. Washington, 466 U.S. 668, 688 (1984). The examination requires
great deference to the decisions made by counsel, and the petitioner must be able to
overcome the strong presumption that counsel’s actions are “sound trial strategy.”
Id. at 689. Counsel must have “wide latitude…in making tactical decisions.” Id.
The petitioner must also show a “reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
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reasonable probability is probability sufficient to undermine confidence in the
outcome.” Id. at 694.
Webster fails to show that the Missouri Court’s decision was contrary to
federal law or an unreasonable determination of the facts. The Court cited
Strickland and properly applied it to the facts. Under Strickland counsel’s conduct
meets the objective standard of reasonableness under prevailing professional
norms, despite his mistaken belief about the law. The conclusion that the decision
to not submit the lesser-included offense instruction and to pursue an all-or-nothing
defense was one of reasonable trial strategy is fully supported by federal law. See
Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir. 1997); Oplinger v. State, 350 S.W.2d
474 (Mo. Ct. App. 2011). The post-conviction proceeding record below indicates
counsel made this decision after considering both the costs and the benefits.
Counsel believed Webster gained negligible advantage from submitting the lesser
included offense instruction and simultaneously ran the risk of inviting the jury to
compromise.
Two additional aspects of Webster’s claim bear noting. First, counsel erred
in his understanding of the law surrounding sentencing on an armed criminal
action charge, but the Missouri Court of Appeals found he did not base his choice
of the all-or-nothing strategy on this mistaken belief. Because Webster has
provided no evidence to the contrary, counsel’s mistake does not affect the finding
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that he employed reasonable trial strategy. Second, both Webster and counsel
testified in post-conviction proceedings that Webster had asked counsel on several
occasions to submit the instruction, including just before and during trial. The
Missouri post-conviction court noted this issue and concluded Webster had
produced no legal precedent suggesting counsel was legally required to defer to
him on matters of trial strategy. Professional norms for criminal defense indicate
some decisions “relating to the conduct of the case are ultimately for the accused
and others are ultimately for defense counsel.” ABA Def. Function Gen. Standards
§ 4-5.2(a). “Strategic and tactical decisions” are left to counsel after consultation
with the client. Id. The choice between inviting the jury to compromise and an
all-or-nothing defense qualifies as strategic and tactical decision. See e.g., Driscoll
v. Delo, 71 F.3d 701, 715 (8th Cir. 1995)(describing the all or nothing strategy
under these circumstances is fully supported by the law).
The state court also correctly found that Webster failed to show a reasonable
probability that but for counsel’s error, the outcome of the trial would have
differed. Webster urges that the facts presented at trial demonstrate irrefutable
evidence that he acted with recklessness and not intent in committing the assault.
Thus, he contends, the jury would have convicted him of second-degree assault if
the instruction had been given as requested. The Court of Appeals correctly noted
that under Strickland the court acted according to law and so must have harbored
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no reasonable doubt that Webster acted with the required intent. (Resp. Exh., I at p.
18). The determination of prejudice must include the assumption that the jury was
“reasonably, conscientiously, and impartially applying the standards that govern
the decision.” Id. at 695; Gianokos v. United States, 560 F.3d 817, 821 (8th Cir.
2009). Webster has failed to show he was prejudiced by counsel’s choice of trial
strategy.
Webster has failed to demonstrate that he received ineffective assistance of
counsel during his trial. In denying his petition for habeas relief, the Missouri
Court of Appeals did not unreasonably apply established federal law nor did it base
its decision on an unreasonable determination of the facts in light of the evidence
before it. The petition for relief under 28 U.S.C. § 2254(d) is denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, a petitioner may not appeal a lower court’s
decision under 28 U.S.C. § 2254 to the appellate court unless granted a Certificate
of Appealability. 28 U.S.C. § 2253(c)(1)(A). A Certificate may only be granted if
there is a substantial showing of the denial of a federal constitutional right. §
2253(c)(2); see Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A
substantial showing indicates that issues are debatable among reasonable jurists, a
court could resolve the issues differently, or the issues deserve further proceedings.
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). I find reasonable jurists could
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not differ on Webster’s claim, so I will deny a Certificate of Appealability/
Accordingly,
IT IS HEREBY ORDERED that Webster’s petition for writ of habeas
corpus [#1] is denied.
A separate judgment in accord with this Memorandum and Order is entered
this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 8th day of July, 2015.

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