Clayton v. Russell

Filing 32

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the Petition of Kenneth Clayton for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1 ) is DENIED. IT IS FURTHER ORDERED that the Petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not issue a Certificate of Appealability. A separate judgment in accordance with this Order is entered on this same date.. Signed by District Judge Ronnie L. White on 3/16/2018. (NEP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KENNETH CLAYTON,
Petitioner,
v.
TROY STEELE, 1
Respondent.

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No. 4:14CV1878 RLW

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Kenneth Clayton for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. The Petition is fully briefed and ready for disposition.

I. Procedural History
Petitioner Kenneth Clayton is currently incarcerated at the Eastern Reception, Diagnostic
and Correctional Center located in Bonne Terre, Missouri ("ERDCC") pursuant to the judgment
and sentence of the Circuit Court of St. Louis City, Missouri. (Resp't's Ex. D pp. 51-54) On
February 11, 2009, a jury found Petitioner guilty of assault in the first degree and armed criminal
action. (Resp't's Ex. B p. 48) On April 3, 2009, the court sentenced him to concurrent terms of
twenty-five (25) years' imprisonment on each count. (Resp't's Ex. D pp. 51-54) Petitioner filed
a direct appeal, and on April 6, 2010, the Missouri Court of Appeals affirmed the judgment of
the trial court. (Resp't's Ex. E) Petitioner then filed Motions to Vacate, Set Aside, or Correct
Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp't's Ex. F pp. 5-

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Troy Steele is now the warden of Eastern Reception, Diagnostic and Correctional Center, where
Petitioner is housed. Under Rule 2(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, "the petition must name as respondent the state officer who has custody."
Therefore, Troy Steele's name is substituted as the named respondent in this action. Future
pleadings shall reflect this change in the caption.

18) Appointed counsel filed an amended Rule 29.15 motion on February 8, 2010. (Id. at pp. 3049) On September 27, 2010, Petitioner filed a pro se amended Rule 29 .15 motion to be added to
the motion. (Id. at pp. 50-66) On October 9, 2011, the motion court denied Petitioner's motion
for post-conviction relief. (Id. at pp. 67-71) The Missouri Court of Appeals affirmed the
judgment of the motion court in a decision dated November 5, 2013. (Resp't's Ex. I) On
November 5, 2014, Petitioner filed the present petition for habeas relief in federal court.

II. Factual Background2
On August 29, 2005 at approximately 2:00 a.m., Chauncey Walker ("Walker" or
"Victim") was walking to a store located a few blocks from his home. A man driving a Taurus
approached Walker, and Walker declined what he perceived was an offer to sell him drugs. The
man stated, "dude up the street tripping off you" and drove away. Walker then decided to return
home. While walking home Petitioner rode a bicycle toward Walker and was holding a revolver.
Petitioner asked Walker what he was doing, and Walker answered that he was going to the store.
Walker began running away, and Petitioner shot him in the right forearm. At the hospital,
Walker provided information to the police about the incident and who he believed shot him.
Based on conversations with a neighborhood friend, Walker thought the shooter's name was
Kenneth Smith. Walker also informed the detective that he and a friend Brian Mabins
encountered the shooter a week and half before, and the shooter was driving the same Taurus
Walker saw on the day of the incident. Walker was shown two photo line-ups. The first included
a photograph of a Kenneth Smith. Walker was unable to identify the shooter in that line-up.
However, during the second line-up, Walker positively identified Petitioner as the shooter.

The Court sets forth the facts as stated in the Missouri Court of Appeals' Memorandum
Supplementing Order Affirming Judgment Pursuant to Rule 84.16(b). (Resp't's Ex. I)

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III. Petitioner's Claims
In his Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, Petitioner raises
three claims for federal habeas relief. Petitioner argues in Ground One that the trial court erred
in admitting evidence of prior bad acts and uncharged crimes and that trial counsel was
ineffective for failing to object to admission of this evidence. In Ground Two, Petitioner asserts
that the trial court erred in admitting identification testimony procured through impermissibly
suggestive law enforcement procedures and that trial counsel was ineffective for failing to object
to the identification evidence. Ground Three alleges that the trial court erred in allowing the
prosecuting attorney to use a peremptory strike to remove an African-American venireperson.

IV. Legal Standards
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts
review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681
(8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus ...
only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254(a). Further, a federal court may not grant
habeas relief unless the claim adjudicated on the merits in state court "'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."' Owens, 198 F.3d at 681(quoting28
U.S.C. § 2254(d)(l)). Findings of fact made by a state court are presumed to be correct, and the
petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(l). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court
factual findings presumed to be correct where fairly supported by the record).

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"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of
law or ifthe state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With
regard to the "unreasonable application" clause, "a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also

Bucklew v. Luebbers 436 F.3d 1010, 1016 (8th Cir. 2006); Rousan v. Roper, 436 F.3d 951, 956
(8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather that application must also be
unreasonable." Williams, 529 U.S. at 411.
To preserve a claim for federal habeas review, a petitioner must present the claim to the
state court and allow that court the opportunity to address petitioner's claim. Moore-El v.

Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation omitted). "Where a petitioner fails to
follow applicable state procedural rules, any claims not properly raised before the state court are
procedurally defaulted." Id. A federal court will consider a defaulted habeas 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.

V. Discussion
In the instant case, Respondent contends that all three grounds are barred from federal
habeas review because they are procedurally defaulted. Further, Respondent asserts that the
claims are without merit.

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A. Ground One
At the outset, the Court notes that Petitioner appears to raise two separate claims: (1) trial
court error in admitting evidence of prior bad acts and uncharged crimes; and (2) ineffective
assistance of counsel for failing to object to the admission of this evidence. As such, the Court
will discuss each separately.
Respondent contends that Petitioner's claim of trial court error is procedurally barred
from federal review because he failed to raise this claim on direct appeal. In his Traverse,
Petitioner does not address Respondent's procedural default argument with respect to the
admission of evidence of prior bad acts by the trial court. The Court finds that this claim is
procedurally defaulted. Petitioner did not raise a claim of trial court error regarding the
admission of prior bad acts in his direct appeal. Petitioner's evidentiary claims challenged the
sufficiency of the evidence and the identification testimony, not the admission of prior bad acts.
(Resp't's Ex.Epp. 2-5, 11-13) Failure to present claims to the Missouri courts at any stage of
the direct appeal or post-conviction proceedings constitutes procedural default. Sweet v. Delo,
125 F .3d 1144, 1149 (8th Cir. 1997). A federal court lacks the authority to reach the merits of
procedurally defaulted claims unless petitioner can show cause and prejudice for the default or
demonstrate a fundamental miscarriage of justice. Schlup v. Delo,_ 513 U.S. 298, 314-15 (1995).
Petitioner does not address his procedural default in his Traverse or otherwise claim cause and
prejudice or actual innocence. Therefore, this claim is procedurally barred and will be denied.
With respect to his claim that counsel was ineffective for failing to object to the
admission of evidence of uncharged crimes or other bad acts, Respondent asserts that Petitioner
procedurally defaulted on this claim because he did not properly raise the claim in his Rule 29.15
motion and thus failed to preserve the issue for appellate review. The record shows that the

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Missouri Court of Appeals reviewed this claim because Petitioner's various post-conviction
motions challenged the testimony by Brian Mabins ("Mabins"), a witness for the State. The
appellate court reasoned, "[b] ecause both Movant' s point on appeal and his 2 9 .15 motion
arguments are based on the same testimony and the same general assertion that the challenged
testimony constituted evidence of uncharged bad acts, we will review Movant's ineffective
assistance allegation as it relates to Mabins' testimony as though it were properly reviewed."
(Resp't's Ex. Ip. 11) The appellate court found, however, that the claim was not preserved as it
pertained to the victim Walker's testimony. (Id.)
With respect to Mabins' testimony, the Missouri Court of Appeals concluded:
Movant fails to allege facts to support his assertion that Mabins' testimony
constituted evidence of uncharged bad acts. Movant contends that the challenged
testimony "that tended to connect [Movant] with drug dealing had not place at
trial." However, Mabins' testimony did not connect Movant to illegal activity.
Mabins testified that he and Victim were attempting to purchase marijuana when
they encountered Movant, who informed them that he did not have marijuana.
Contrary to Movant's assertion, Mabins' testimony tends to demonstrate that
Movant was not involved in drug dealing, as he refused to provide drugs to
Victim and Mabins. In the absence of a specific connection to a crime, Movant' s
encounter with Victim and Mabins is insufficient to suggest Movant's
involvement in prior bad acts. Sheridan, 188 S.W.3d at 65. Because Mabins'
testimony about his and Victim's encounter with Movant was not evidence of
prior bad acts, trial counsel was not ineffective for failing to object. See Davidson
v. State, 308 S.W.3d 311, 319 (Mo. App. E.D. 2010).
Furthermore, Mabins' testimony was relevant to Victim's identification of
Movant. One of Movant's theories of defense at trial was that Victim
misidentified the shooter. To develop this defense, during cross-examination of
Victim, trial counsel challenged Victim's identification of Movant as the person
who shot him. He elicited testimony that the incident occurred "really fast," that
Victim was focusing on Movant's gun, clothes, hat, and bicycle during the short
confrontation, and that the incident occurred when it was dark outside. Victim
testified that on the night of the shooting, he recognized the Taurus as the same
Taurus that Movant had driven during their encounter a week and a half earlier.
He also testified that he recognized Movant from that encounter. Accordingly,
Victim's testimony was relevant to his identification of Movant, and Mabins'
testimony further supported the identification of Movant as the shooter. See State
v. Lewis, 874 S.W.2d 420, 426 (Mo. App. W.D. 1994). "Failure of trial counsel
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to make a non-meritorious objection does not constitute ineffective assistance of
counsel." Littleton v. State, 372 S.W.3d 926, 931 (Mo. App. E.D. 2012). Point
denied.

(Id. at pp. 11-12)
To establish ineffective assistance of counsel, Petitioner must demonstrate that counsel's
performance was "deficient" and that such deficient performance "prejudiced" his defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). "Judicial scrutiny of counsel's performance
is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide
range ofreasonable professional judgment." Bucklew, 436 F.3d at 1016 (citing Strickland, 466
U.S. at 689). The prejudice prong requires Petitioner to prove that but for counsel's deficiency,
the outcome of his trial would have been different absent counsel's error. Id. at 694; Bucklew,
436 F.3d at 1016. In other words, Petitioner must demonstrate "that counsel's errors were so
serious that they rendered the proceedings fundamentally unfair or the result unreliable."

Bucklew, 436 F.3d at 1016 (citation omitted). The question of whether counsel's performance
prejudiced the trial need not be addressed if counsel's performance was not deficient; conversely,
a court need not reach the question of deficient performance where a petitioner has failed to
show prejudice. Green v. Steele, No. 4:04-CV-0610 CEJ TCM, 2007 WL 2199644, at *10 (E.D.
Mo. July 27, 2007) (citations omitted).
As previously stated, habeas relief may not be granted unless the claim adjudicated on the
merits in state court '"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."' Owens, 198 F.3d at 681(quoting28 U.S.C. § 2254(d)(l)). "Therefore, we will
not grant [petitioner's] habeas petition unless the state court's decision in this case was contrary
to, or an unreasonable application of, the standard articulated by the Supreme Court in

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Strickland." Id.; see also Bucklew, 436 F.3d at 1016 (where state court correctly identifies
Strickland as the controlling authority, federal courts "address whether the state court
unreasonably applied that precedent and whether the state court unreasonably determined the
facts in light of the evidence presented.").
Here, Petitioner has failed to demonstrate that trial counsel's performance was deficient
and prejudiced the defense. The record shows that Mabins' s mention of trying to purchase
marijuana from Petitioner was not evidence of uncharged crimes that deprived Petitioner of a fair
trial. As noted by the Clayton court on post-conviction appeal, "[g]enerally, the State may not
introduce evidence of uncharged crimes or other bad acts of the defendant to demonstrate the
defendant's predisposition to commit crimes." (Resp't's Ex. Ip. 10); State v. Sheridan, 486
S.W.3d 358, 362 (Mo. Ct. App. 2015). "However, '[w]here the defendant's involvement in the
other crime is speculative, when the defendant is not identified as the perpetrator, or where the
other crime is attributed to someone other than the defendant the necessary connection does not
exist for application of the rule. State v. McMilian, 295 S.W.3d 537, 540 (Mo. App. W.D.
2009). "(Resp't's' Ex. I. p. 10)
The Court finds that the state court's determination that Mabins' testimony was not
evidence of prior bad acts and was relevant to his identification of Petitioner was not contrary to
or an unreasonable application of Strickland. As found by the Missouri Court of Appeals,
Mabins' testimony demonstrated Petitioner's refusal to sell drugs, not that he was a drug dealer,
and showed no connection to a crime. Indeed, Petitioner does not assert any connection to a
crime but merely speculates that the jury may have inferred Petitioner was a neighborhood drug
dealer. (Pet.'s Traverse pp. 9-10, ECF No. 26) Further, the testimony supported Walker's
identification of Petitioner, as Petitioner's defense at trial was misidentification. "Counsel's

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decision not to object to the evidence does not lie outside the wide range of 'professionally
competent assistance' under Strickland, because the evidence was, in fact, admissible." Williams

v. Lawrence, No., 2011 WL 6097127, at *6 (E.D. Mo. Dec. 7, 2011) (citation omitted); see also
Deck v. Steele, 249 F. Supp. 3d 991, 1029 (E.D. Mo. 2017) ("Post-conviction counsel cannot be
ineffective for failing to pursue a non-meritorious claim.").
"Based on the foregoing and the other evidence of record, and considering defense
counsel's conduct based on his perspective at the time, [the Court] find[ s] that the strong
presumption that defense counsel's performance 'falls within the wide range ofreasonable
professional assistance' is not overcome." Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004)
(quoting Strickland, 466 U.S. at 689). Because counsel's performance was not deficient, the
Court need not consider the prejudice prong of Strickland. Id. Thus, the Court finds that
Petitioner has failed to demonstrate that trial counsel was ineffective, and this ground is denied
on the merits.
Finally, Petitioner contends that trial counsel was ineffective for failing to object to the
victim Walker's testimony which allegedly mentioned uncharged crimes. As noted above, the
Missouri Court of Appeals did not address this claim because Petitioner failed to properly raise it
in his Rule 29.15 motion. (Resp't's Ex. Ip. 11) Petitioner acknowledges in his Traverse that the
claim is procedurally defaulted. However, Petitioner argues that he can show cause and
prejudice for the default based on post-conviction counsel's ineffective assistance for failure to
raise the claim.
In Martinez v. Ryan, the United States Supreme Court held, "[i]nadequate assistance of
counsel at an initial review collateral proceedings may establish cause for a prisoner's procedural

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default of a claim of ineffective assistance of counsel." 132 S. Ct. 1309, 1315 (2012). When, as
in Missouri,
a State requires a prisoner to raise an ineffective-assistance- of-trial-counsel claim
in a collateral proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral proceeding for a
claim of ineffective assistance at trial. The second is where appointed counsel in
the initial-review collateral proceeding, where the claim should have been raised,
was ineffective under the standards of Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
Id at 1318. In addition, to overcome the procedural default, "a prisoner must also demonstrate
that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit." Id
Here, to overcome Petitioner's procedural default, Petitioner must establish that counsel
on collateral review was ineffective under Strickland and that the ineffective assistance of trial
counsel claim is meritorious. The Court finds that Petitioner is unable to demonstrate cause
sufficient to overcome the default. As stated above, Petitioner's claims that Mabins' testimony
regarding the attempted purchase of marijuana from Petitioner was not evidence of uncharged
crimes and was admissible as identification evidence. Petitioner's objection to Walker's
testimony is based upon the same encounter and assertion that the challenged testimony was
evidence of uncharged bad acts. As with Mabins, Petitioner's allegations fail to demonstrate
deficient performance on the part of post-conviction counsel. Because Petitioner's does not have
a meritorious ineffective assistance of trial counsel claim, his post-conviction counsel was not
ineffective for not raising the issue in Petitioners' Rule 29.15 motion. Therefore, Petitioner is
unable to establish cause to overcome the procedural bar. See Dykes v. Koster, No., 2013 WL
6096887, at *6 (E.D. Mo. Nov. 20, 2013) (finding petitioner was unable to rely on Martinez to
establish cause for his procedural default where petitioner's claims of ineffective assistance of
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trial counsel lacked merit). As such, ground one of Petitioner's habeas petition is denied in its
entirety.
Ground Two
For his second ground, Petitioner asserts that (1) the trial court erred in admitting
identification testimony procured through impermissibly suggestive law enforcement procedures
and (2) that trial counsel was ineffective for failing to object to the evidence. According to the
Petition, the victim Walker initially gave a detective the name "Kenneth Smith" as the shooter.
However, when shown the first photo lineup which included Kenneth Smith, Walker did not
identify anyone as the shooter. Walker continued to share information with the detective that he
heard from other people. After being released from the hospital, Walker was shown a second
photo lineup and identified the Petitioner as the shooter. Mabins also identified Petitioner as a
person he encountered prior to the shooting. Petitioner contends that the photo arrays of suspects
shown to Walker and Mabins were unduly suggestive and unlawful.
Petitioner did not include this argument in a motion for a new trial, and thus the Missouri
Court of Appeals reviewed the claim for plain error. (Resp't's Ex. E p. 11) The appellate court
noted that "[t]he defendant bears the burden of demonstrating the pretrial identification
procedure was impermissibly suggestive" and if defendant meets this burden, the court moves to
the second step to '"determine whether the suggestive procedures have so tainted the
identification as to lead to a substantial likelihood that the pretrial identification was not
reliable."' (Id.) (quoting State v. McE!vain, 228 S.W.3d 592, 601 (Mo. Ct. App. 2007)).
The Missouri Court of Appeals then found that the trial court did not commit error, plain
or otherwise, with respect to the admission of identification evidence. The court reasoned:
Appellant provides four reasons why he believes the police procedures
resulted in an unduly suggestive pretrial identification. Appellant claims the
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detective wrongfully: ( 1) failed to conduct any independent investigation; (2)
failed to place Appellant in a live physical line up or interview him; (3) acted as
the person who prepared and showed the lineup to Walker; and (4) used different
pictures of Appellant when showing the photo lineup to Walker and Mabius [sic].
Appellant does not elaborate on the third reason why he believes ths police
procedures were unduly suggestive in his argument portion of the brief. This
Court will deem abandoned any issues identified in the point relied on that are not
supported by argument in the argument portion of the brief. 8000 Maryland, LLC
v. Huntleigh Fin. Serv. Inc., 292 S.W.3d 439, 445 (Mo. App. E.D. 2009).
Moreover, Appellant fails to cite any authority to support his argument with
respect to the other three reasons to demonstrate these were improper and resulted
in an unduly suggestive identification. "A point is considered abandoned if a
party fails to support a contention with relevant authority or argument beyond
conclusions." State v. Edwards, 280 S.W.3d 184, 190 (Mo. App. E.D. 2009) ....
As such, we find Appellant failed to carry his burden of demonstrating the
police procedures used during identification were unduly suggestive. We need
not address the second prong of the analysis with respect to whether the police
procedures so tainted the identification as to lead to a substantial likelihood that
the pretrial identification was unreliable. Accordingly, we cannot say the trial
court committed error, plain or otherwise, with respect to the admission of this
evidence. Point denied.
(Resp't's Ex. E p. 13)
As with the state courts, Petitioner has failed to provide any facts or law to support his
allegation that the photo identification procedures were unduly suggestive.3 In any event, the
Court first notes that the claim of trial court error for admitting the identification evidence is
procedurally barred, as Petitioner failed to raise the claim in his motion for a new trial. The

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Petitioner is represented by counsel in this matter. The record shows that counsel requested,
and was granted, six extensions of time for filing Petitioner's Traverse giving Petitioner nearly 6
months' additional time to file a Traverse. However, the 20-page Traverse addresses only the
first and third grounds raised in the Petition and provides no further factual or legal support for
his claims regarding the photo identification procedures. The Court thus presumes that Petitioner
abandoned these claims. See Williams v. Armantrout, 679 F. Supp. 916, 922 (W.D. Mo. 1988),
ajf'd in part, rev 'din part,, 891 F .2d 656 (8th Cir. 1989), reh 'g granted and opinion vacated
(Feb. 6, 1990), on reh 'g,, 912 F .2d 924 (8th Cir. 1990), and ajf'd,, 912 F .2d 924 (8th Cir. 1990)
(finding claims abandoned where petitioner did not provide any legal or factual support for his
claims in the traverse).
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Missouri Court of Appeals noted that Petitioner conceded that the point was not preserved for
appeal but nevertheless reviewed the claim for plain error. However, under Eighth Circuit law, a
state court's discretionary plain-error review of unpreserved claims cannot excuse a procedural
default. Clarkv. Bertsch, 780 F.3d 873, 877 (8th Cir. 2015); see also Floydv. Griffith, No.
4:15CV1145 JCH, 2016 WL 199078, at *1 (E.D. Mo. Jan. 15, 2016) (finding petitioner's failure
to raise a claim of suggestive identification procedures in a motion for new trial, and the
appellate court's review of the claim only for plain error, constituted a procedural default). Thus,
the Court finds that this claim of trial court error is procedurally defaulted and will be denied.
With respect to the ineffective assistance of counsel claim for failure to object to the
identification evidence, this claim is also procedurally defaulted. The record shows that
Petitioner raised only two points on post-conviction appeal: ineffective assistance of counsel for
failure to object to the introduction of the victim's medical evidence and to testimony regarding
uncharged bad acts. (Resp't's Ex. Ip. 3) As previously stated, to preserve a claim for federal
habeas review, a petitioner must present the claim to the state court and allow that court the
opportunity to address petitioner's claim, and failure to do so renders that claim procedurally
defaulted. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation omitted). Here,
Petitioner did not allow the Missouri Court of Appeals the opportunity to address this claim of
ineffective assistance of counsel. Thus, the Court may not review his claim absent a showing of
cause for the default and actual prejudice or a miscarriage of justice. Id. Here, Petitioner does
not address this procedural default in his Traverse or otherwise claim cause and prejudice or
actual innocence. Therefore, this claim is procedurally barred and will be denied.

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III. Ground Three
Last, Petitioner argues that the trial court erred by failing to evaluate a challenge to the
prosecuting attorney's use of a peremptory strike to remove an African-American venireperson.
During the trial, the prosecuting attorney used a peremptory strike to remove Ebone Jenkins
("Jenkins") from the panel based on her disinterest in the case and bad attitude toward the
prosecutor, along with her lip piercing and hand tattoo. (Pet. p. 9, ECF No. 1) On direct appeal,
the Missouri Court of Appeals found, and Petitioner conceded, that the issue had not been
preserved for review because Petitioner did not raise the issue in his motion for new trial.
(Resp't's Ex. E p. 5) However, the appellate court reviewed the issue for plain error. (Id.) The
Clayton court found that Petitioner properly asserted a challenge under Batson v. Kentucky, 476

U.S. 79 (1986) by objecting to the State's peremptory strike of Jenkins on the basis of her race.
(Id. at p. 7) In response, the State offered a facially race-neutral explanation for striking Jenkins.
(Id.) The court further stated:

Once the State produced a facially race-neutral explanation, the burden
shifted back to Appellant to demonstrate that the prosecutor's proffered
explanation was mere pretext for purposeful discrimination.... One of the four
factors used to determine pretext is the presence of similarly situated white jurors
who were not struck from the venire panel. State v. Pointer, 215 S.W.3d 303, 306
(Mo. App. W.D. 2007). This factor is crucial to determining pretext, although not
conclusive. Id.
Defense counsel did not challenge the prosecutor's reasons as being
pretextual as required by the third step in the Batson analysis. The record reflects
the trial court immediately turned to the pretextual analysis, asking, "Are there
any similarly situated lip-pierced, hand tattooed non-African American females,
[defense counsel]?" Defense counsel answered, "No, Your Honor" and said
nothing further with respect to this juror. The trial court ruled it would allow the
strike.
Appellant argues in his reply brief he was "thwarted" when attempting to
demonstrate the prosecutor's proffered reasons were pretextual because of the
trial court's truncated analysis. This argument is unpersuasive given defense
counsel's late challenge to the makeup of the venire panel. ...
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... It is clear the trial court accepted the prosecutor's explanation in
upholding the strike. Moreover, Appellant did not offer any evidence that the
strike was pretextual when the strike was initially made or when the prosecutor
asked the trial court to clarify its ruling. As such, we cannot say the trial court
committed plain error in overruling Appellant's Batson challenge with respect to
the striking of this juror. Point denied.

(Resp't's Ex.Epp. 7-9)
In his Traverse, Petitioner argues that trial court erred in not conducting a thorough
evaluation of the prosecuting attorney's use of a peremptory strike on Jenkins. Petitioner
contends that the trial court's "flippant dismissal of [Petitioner's] equal protection challenge"
was not a meaningful Batson evaluation. (Traverse p. 17, ECF No. 26)
Failure to raise this issue in his motion for a new trial constitutes a procedural default. As
previously stated, a state court's discretionary plain-error review of unpreserved claims cannot
excuse a procedural default. Clark v. Bertsch, 780 F.3d 873, 877 (8th Cir. 2015). Further, while
Petitioner argues the merits of his case, he does not offer any explanation for his failure to raise
the claim in a motion for new trial that would demonstrate cause and prejudice or a miscarriage
of justice sufficient to overcome the procedural default. Thus, the Court finds Petitioner's third
ground is procedurally defaulted and will be denied.
Accordingly,
IT IS HEREBY ORDERED that the Petition of Kenneth Clayton for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DENIED.

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IT IS FURTHER ORDERED that the Petitioner has not made a substantial showing of
a denial of a constitutional right and this Court will not issue a Certificate of Appealability. A
separate judgment in accordance with this Order is entered on this same date.
Dated this 16th day of March, 2018.

~,L'.~
RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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