Smith v. Bowersox
MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the petition of Julius Smith for a writ of habeas corpus relief is DENIED. IT IS FURTHER ORDERED that a certificate of appealability shall not be issued. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 3/8/2018. (NEP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No. 4:14CV01922 AGF
MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Julius Smith for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 15,
2009, Petitioner was convicted by a jury of first-degree murder and armed criminal action
for the November 8, 2007 shooting death of Jonathan Walker. Petitioner was sentenced
to life without parole on the murder charge, and a concurrent sentence of five years’
imprisonment for armed criminal action. His convictions and sentences were affirmed on
direct appeal. Petitioner’s motion for state post-conviction relief was denied following an
evidentiary hearing, and this denial was affirmed on appeal.
Petitioner raises eight claims for habeas relief: (1) the trial court abused its
discretion in admitting the testimony of an investigator (Michael Graves) for the
prosecution and a police officer (James Stagge) regarding gang activity in the area of the
crimes; (2) the trial court erred in admitting photo exhibits showing gang graffiti in the
area; (3) the trial court erred in admitting the testimony of one of the two eye witnesses
(Corey McCanery) who testified that he had known Petitioner for approximately seven
years, and also testified that Petitioner had shot him in June 2007, a crime for which
Petitioner was never charged, and which, according to Petitioner, he did not commit; (4)
defense counsel was ineffective in failing to call two individuals (Kesha Johnson and
Gloria Johnson) as alibi witnesses; (5) defense counsel was ineffective in failing to ask
Petitioner at trial where he was at the time of the murder; (6) defense counsel was
ineffective in failing to introduce evidence showing that Petitioner was not the shooter in
the June 2007 incident (namely, photographic evidence that in June 2007, he did not have
dreadlocks), thereby undermining the credibility of McCanery’s identification of
Petitioner as Walker’s murderer; (7) defense counsel was ineffective in failing to request
clarification as to what evidence the jury asked to see during deliberations; and (8)
defense counsel was ineffective in failing to request a mistrial after the jury indicated it
was at an impasse and before the trial court gave a “hammer” instruction.
Respondent argues that Petitioner’s last claim was procedurally defaulted, and that
the state courts’ adjudication of the remaining claims was factually and legally
reasonable. For the reasons set forth below, federal habeas relief will be denied.
During voir dire, both the State and Petitioner told the venire panel that there
would be evidence that the victim and Petitioner were associated with criminal street
gangs. Venirepersons who indicated a tendency to presume guilt based on Petitioner’s
association with a gang were struck for cause. McCanery, who was 18 years old at the
time of trial, testified that on November 8, 2007, at approximately 6:30 p.m., he was
walking on the 4900 block of Aldine Place in the City of St. Louis when he encountered
two friends, Donovan Wilson and Walker. As McCanery was talking to Wilson and
Walker, a car drove down the street and stopped a short distance from the three young
men. McCanery testified that Petitioner was driving the car and an individual named
Edward Hughes was also in the car; that Petitioner started firing at the three men with a
semi-automatic handgun; that McCanery dropped to the ground and hid behind a car; that
as Wilson and Walker attempted to run away, they were both shot; that Petitioner fired a
final shot to where McCanery was hiding, and drove away. McCanery testified that he
ran toward Walker, saw that he was bleeding, and called the police.
McCanery testified further that approximately three hours later, during an
interview at the police station, he told the police that he saw the shooting from a distance,
that he was sure the person in the passenger seat of the car was Hughes, but that he was
not sure that the driver – the person who fired the shots – was Petitioner. These
statements were recorded and the recording was played for the jury and admitted into
evidence. 1 McCanery testified at trial that he made these statements to the police because
he was nervous and shaken up. ECF No. 9-1 at 44-45, 50-51.
McCanery testified that he had known Petitioner for about seven years before the
murder, and that Petitioner had previously shot him on June 11, 2007. McCanery
testified that in June 2007, Petitioner had dreadlocks, whereas at the time of the
The recording has not been made a part of the record in this habeas case, but the
parties do not dispute its contents, i.e., what McCanery told the police during his
interview on November 8, 2007.
November 8, 2007 shooting he had a “low haircut,” which was one of the reasons
McCanery initially told police he was not sure the driver of the car was Petitioner.
McCanery testified that a “couple of months” after the November 8, 2007
shooting, he identified Petitioner to the police from a photo lineup as the person who
killed Walker. He also identified Petitioner in the courtroom as the murderer. On crossexamination, defense counsel brought out the inconsistencies between McCanery’s initial
videoed statements to the police and his trial testimony, as well as inconsistencies
between his trial testimony and a deposition defense counsel had taken. The deposition
was not admitted into evidence.
Wilson testified consistent with McCanery, except that Wilson testified that he did
not see who the men in the car were. He further testified that he never told the police that
Petitioner was the shooter. Wilson testified that he was involved in gang life as a “4900
Aldine Blood,” and that he was aware that Petitioner (referred to as “JuJu”) was a
member of a rival “Crips” gang. The State introduced evidence that Walker died at the
scene of the shooting from a gunshot wound to the chest.
Graves testified that as an investigator for the Circuit Attorney’s Office of the City
of St. Louis, he was member of a “gang unit,” and that in July 2017, he spoke to Wilson
about Walker’s murder, and Wilson told him that “JuJu” was the person who shot and
killed Walker. Id. at 57. Graves also identified six photo exhibits depicting gang graffiti
in the neighborhood of the murder taken after the murder. Stagge testified that he had
special training and was an expert on criminal gangs. He explained to the jury what a
gang is, and testified at some length about gangs’ propensities for violence and cycles of
retaliation, and how some of the graffiti shown in the photographs indicated that the two
local gangs mentioned earlier were engaged in an ongoing dispute that involved
reciprocal killings of members of each gang. There was no physical evidence linking
Petitioner to the murder.
Petitioner was the only witness for the defense. The only question, other than his
identity, that defense counsel asked him was whether he had killed Walker, to which
Petitioner answered, “No, sir.” On cross-examination, Petitioner testified that he was not
a member of the Crips gang referenced by Wilson, that he did not know McCanery,
Wilson, or Walker, and that McCanery and Walker made up their stories about what
happened at the shooting.
The first-degree murder charge was submitted to the jury on the theory of
transferred intent. The verdict director instructed the jury that if it found that Petitioner
caused Walker’s death by shooting at McCanery and hitting Walker, that it was
Petitioner’s purpose to cause McCanery’s death, and that Petitioner did so after
deliberation, then the jury was to find Petitioner guilty of first-degree murder. In closing
argument, defense counsel stressed the lack of any physical evidence against Petitioner,
McCanery’s changing stories in identifying the shooter, and the State’s burden of proof.
After the jury was escorted to the jury room, the trial court questioned Petitioner about
his satisfaction with defense counsel’s performance. Petitioner stated that he did not help
counsel in the preparation of his defense in that counsel did not call two individuals
Petitioner wanted him to all as alibi witnesses – his girlfriend Kesha Johnson and her
mother Gloria Johnson. Defense counsel stated that he had contacted them both but that
as a matter of trial strategy, he decided not to call them, and that he discussed this with
Petitioner. Petitioner responded that he did not agree with counsel on the matter and that
he told counsel he specifically wanted him to call Gloria Johnson. Petitioner
acknowledged that he knew counsel had withdrawn the notice of alibi defense and that he
was not going to call alibi witnesses. The discussion ended with the court asking
Petitioner if he was happy with counsel’s representation of him, and Petitioner
responding, “Yes, sir.” Id. at 95-96.
During deliberations, the jury requested to see “deposition of Corey McCanery,”
and “transcript of Detective Graves.” Defense counsel argued that he believed the jury
was confused between the videotape of McCanery’s statement to the police (in which
McCanery stated that he was not sure that Petitioner was the driver of the car and the
shooter) and McCanery’s deposition. The trial court did not agree, saying the jury asked
for McCanery’s deposition, not the videotape of his statements to the police. Counsel
made a record that he requested that the videotape be given to the jury; the court denied
the request. The court sent an answer to the jury that they could not review McCanery’s
deposition or Grave’s transcript. Id. at 96-97.
After deliberating for two hours and 45 minutes, the jury told the trial court that
they were at an impasse and the court gave the following “hammer” instruction, over
defense counsel’s objection:
I have one more Instruction that that I am going to read to you and
then I am going to send you upstairs to continue to deliberate on the case.
This will be Instruction number 13.
You should make every reasonable effort to reach a verdict, as it is
desirable that there be a verdict in every case. Each of you should respect
the opinions of your fellow jurors as you should have them respect yours,
and in a spirit of tolerance and understanding endeavor to bring the
deliberations of the whole jury to an agreement upon a verdict. Do not be
afraid to change your opinion if the discussion persuades you that you
should. But a juror should not agree to a verdict that violates the
Instructions of the Court, not should a juror agree to a verdict of guilty
unless he is convinced of the defendant’s guilt beyond a reasonable doubt.
I will ask you to go upstairs and continue to deliberate.
ECF No. 9-1 at 97. Approximately 40 minutes later, the jury returned its verdict
On direct appeal, Petitioner raised the first three claims he now presents for federal
habeas relief: that the trial court erred in admitting (1) Grave’s and Stagge’s testimony
about gangs, (2) the photos of gang graffiti in the neighborhood of the shooting, and (3)
evidence that Petitioner had previously shot McCanery, a crime for which Petitioner was
never charged. As the appellate court noted, in his motion for a new trial, Plaintiff did
not challenge the admission of Graves’ testimony about gangs. The appellate court stated
that Petitioner, therefore, had not preserved this particular point for appellate review. The
court proceeded to consider the matter for plain error, and concluded that no “evident,
obvious, and clear error” existed concerning the admission of this testimony. ECF No. 96 at 7.
The Court then considered whether the trial court erred in admitting Stagge’s
gang-related testimony and the photos of gang graffiti, matters that had been properly
preserved for review. The court noted that generally, evidence of a defendant’s affiliation
with a gang is improper character evidence, but here, Stagge’s testimony and the photos
were relevant to explain the State’s theory that an ongoing dispute between the local
Bloods and Crips gangs was Petitioner’s motive for the shooting. The appellate court
also believed that the gang-related evidence helped to establish Petitioner’s identity as the
shooter by corroborating McCanery and Wilson’s testimony and by showing that
Petitioner had a reason to shoot at them and Walker. Lastly, the court held that “any
potential prejudice resulting from references to gang activity was minimal” because both
the Sate and Petitioner introduced the gang issue to the venire panel before trial began,
and any venireperson who indicated a tendency to presume guilt based on Petitioner’s
association with a gang was struck from the jury. Id. at 11. The Missouri Court of
Appeals also rejected Petitioner’s third point on appeal, holding that McCanery’s
testimony that Petitioner shot him approximately five months before Walker’s murder
was relevant to establishing the identity of Walker’s murderer.
State Postconviction Proceedings
For state postconviction relief, Petitioner asserted the ineffective assistance of
counsel claims that comprise Grounds (4) through (7) of his habeas petition, as set forth
The motion court held an evidentiary hearing at which defense counsel, Gloria
Johnson, Kesha Johnson, and Petitioner testified. Defense counsel testified that prior to
this case, he had been a public defender for nine years and had been defense counsel in
four first-degree murder cases. He testified that he decided not to present an alibi
defense because he thought the State’s case was weak and Petitioner’s alibi was “weak at
best” and would distract the jury from the burden of proof, which was on the State. ECF
No. 14-1 at 7. Instead, his trial strategy was to discredit McCanery who had changed his
story as to who the shooter was, and who defense counsel believed was not a credible
witness in general.
Defense counsel further testified that his investigator interviewed Kesha Johnson
(Petitioner’s girlfriend at the time of the murder) and Gloria Johnson (Kesha’s mother).
The interviews took place approximately six and one half months after Walker’s murder.
Counsel testified that the investigator’s notes stated that Gloria told the investigator that
Kesha and Petitioner picked Gloria up from work at about 4:30 or 5:00 on the evening in
question, that they all went to the Burlington Coat Factory, and that after dropping Gloria
off, Kesha and Petitioner spent the night at Gloria’s sister’s house. Counsel testified that
the investigator’s notes indicated that Gloria also told the investigator that while she was
still at work, she heard breaking news that there had been a shooting in the Kingshighway
area, and she called Kesha to let her know so that Kesha could take another route to pick
Counsel read from the investigator’s notes that quoted Kesha as saying, “It’s been
a long time. I really can’t remember.” The notes further stated, “[Kesha] does, however,
recall that she and [Petitioner] went to pick up her mother, Gloria Johnson, from work.
Her mother told them that someone had been shot. [Kesha] really didn’t have anything
else to offer.” Id. at 45.
Defense counsel testified that he did not speak to either potential alibi witness
personally because it was not his practice to do so lest that would make him a witness in
the case. He acknowledged that Petitioner told him he wanted an alibi defense, and
wanted counsel to call Kesha and Gloria Johnson as witnesses, and that both were willing
to testify at trial. But counsel decided not to call them, because in his view presenting
them as alibi witnesses “was going to hurt and not help,” id. at 17. He testified that he
believed the alibi defense was weak. Kesha’s story was vague and “all over the place,”
and would have easily been challenged on cross-examination. And Gloria’s story was
not credible, appeared inaccurate, and also would have been subject to challenge on
cross-examination. Counsel believed injecting a weak alibi defense into the case would
have diverted the jury’s attention from the State’s weak case, and risk a comparison of
stories, which could cause the jury to lose sight that the State bore a significant burden.
Counsel further testified that Petitioner’s own alibi story conveyed to counsel was that he
went with Kesha and Gloria to a store to buy junk food, with no mention of Burlington
Coat Factory. Counsel reiterated that his trial strategy was to show that McCanery was
not credible due to his inconsistent identifications, as “there was nothing else . . . to tie
[Petitioner] to the shooting.” Id. at 39-40.
When asked why he did not ask Petitioner on the stand where he was at the time of
the murder, counsel explained that if Petitioner testified that he did not commit the
crimes, and if he did not commit the crimes “and wasn’t there, he would have no reason
to know when it happened or – he knows he didn’t shoot the guy. So obviously, he
wasn’t there. . . . it’s like proving a negative. It’s difficult to know where you were when
you weren’t doing something.” Defense counsel continued that if he asked Petitioner his
whereabouts, it would have opened him up to “a whole bunch of cross-examination,”
which may have confused the issues, and taken the focus away from what little evidence
the State had that showed Petitioner to be guilty. Id. at 18-19.
Counsel was then asked why he did not present photographic evidence that in June
2007 Petitioner did not have dreadlocks – evidence that would have discredited
McCanery’s testimony that one reason he did not identify Petitioner at first was because
Petitioner had dreadlocks in June 2007, whereas as the person who shot Walker had short
hair. Counsel testified that he did not recall Petitioner giving him a photograph or
medical records showing that Petitioner had short hair June 2007. But counsel did
remember talking about the hair-length issue with Petitioner and counsel acknowledged
that he at least should have asked Petitioner on the stand about the length of his hair in
June 2007, as that would have discredited McCanery’s identification to some extent. Id.
Defense counsel testified that after the trial court rejected his request to send the
videotape to the jury, he did not think to ask the court to ask the jury for clarification as to
what they wanted to see. On cross-examination, defense counsel stressed that it was his
trial strategy to rely on the weakness of the State’s case, and that he believed presenting
Kesha and Gloria Johnson as alibi witnesses would have hurt Petitioner’s case.
Gloria Johnson testified at the evidentiary hearing that on the evening in question,
Petitioner and Kesha picked her up from work in the Central West End at about 4:30 p.m.
and from there they went to Burlington Coat Factory on South Kingshighway. About a
half hour before they picked her up, she called her daughter and told her she had heard on
the news that there was a shooting on Kingshighway and Petitioner and her daughter
should take a different route to pick her up. Gloria first said that she, Kesha, and
Petitioner were at Burlington Coat Factory “for a minute,” but then said they were there
until about 6:00 or 7:00 p.m. She testified that Kesha and Petitioner then dropped her off
at home close to 7:00 p.m., and that she did not know where they were headed
afterwards, but then stated that they were going to the home of Gloria’s sister. Gloria
testified that she did not remember the date or day of the week of those events, and that
Kesha picked her up from work every day, Monday through Friday, and a majority of the
time Petitioner was with Kesha. Nor did Gloria she remember when she heard about
Walker’s murder or when she learned that Petitioner was arrested.
Kesha Johnson testified that she and Petitioner picked up her mother from work
the evening of the murder, and the three of them went to Burlington Coat Factory. She
testified that she did not know what they did after leaving the store, but then stated that
after leaving the store and dropping her mother at home, she and Petitioner went to her
aunt’s house, but again stated, “I don’t recall.” Id. at 63. Kesha could not remember
when Petitioner was arrested for the shooting, whether it was two days, two months, or
one year after their trip to Burlington Coat Factory.
Petitioner testified that had defense counsel asked him on the stand where he was
at the time of the murder, he would have testified that he was with Kesha and Gloria
Johnson at Burlington Coat Factory. He testified that on the second day of trial, he
showed defense counsel a photograph of himself taken in May 2007 at the hospital after
he had some surgery, in which he had a low-cut haircut. He also told counsel that he had
medical records showing that he was in the hospital in May 2007 when the photo was
taken, and brought the photo and records with him to trial. The photograph and records
are part of the record before this Court. Petitioner acknowledged on cross-examination
that he changed the notation on the back of the photo, adding “07” to show the date it was
taken. He explained that he made this notation while he was in jail, awaiting trial on the
charges in this case, in order to reflect what he was trying to say. Id. at 77-78.
Decision Affirming the Denial of Post-Conviction Relief
In affirming the motion court’s denial of post-conviction relief, the Missouri Court
of Appeals first concluded that neither Gloria Johnson’s nor Kesha Johnson’s testimony
would have provided a viable defense, and that consequently, defense counsel’s decision
to employ “other strategies” was reasonable. The court reasoned that it could not be
determined from the record whether the shooting on Kingshighway to which Gloria
Johnson referred was the shooting in the underlying case or a different shooting, and that
if it were the shooting involved in the underlying case, then Gloria’s account of when
Petitioner and Kesha picked her up from work and took her shopping “is drastically off,
and cannot account for [Petitioner’s] whereabouts at the time of the shooting.” The court
determined that Kesha’s “vague and inconsistent testimony would have neither
unqualifiedly supported [Petitioner] nor provided him with an alibi. Likewise, Gloria’s
inconsistent testimony and questionable account of time would have neither unqualifiedly
supported the movant nor provided him with an alibi.” ECF No. 9-10 at 6-7.
The court noted that Petitioner did not tell counsel before trial that he was
shopping at Burlington Coat Factory with Kesha and Gloria. Rather, Petitioner told trial
counsel a different story of his whereabouts, involving a trip to a store to buy junk food.
Noting that the shooting of Walker occurred at about 6:45 p.m., the court reasoned that
“Gloria, of course, could not account for [Petitioner’s] whereabouts after he dropped her
at home, either after being at Burlington Coat Factory for ‘a minute’ sometime after 4:30
or ‘going on’ 7:00.” Id. at 8.
The appellate court addressed the claim of failure to ask Petitioner at trial where
he was at the time of the murder, as follows:
Trial counsel reasoned that if the movant did not commit the crime, then
obviously the movant was somewhere else when it happened. Trial counsel
did not want to open the movant to cross-examination on his whereabouts,
primarily because it might seem odd that the movant would specifically
remember where he was when he did not do something. And trial counsel
specifically expressed concern that such questioning could have distracted
the jury from focusing on weaknesses in the State’s case. Under the
circumstances, trial counsel’s strategic decision was reasonable.
Id. at 8.
The Missouri Court of Appeals next rejected Petitioner’s claim that had defense
counsel presented photographic evidence to establish that Petitioner did not have
dreadlocks in June 2007, it would have shown that McCanery identified the wrong person
as the shooter both in June 2007 and in the present case. The court concluded: “To
prevail on his claim, [Petitioner] must demonstrate that a reasonably competent attorney
would submit evidence that the defendant had obviously altered and produced in the
middle of trial. We reject such a proposition, and will not deem trial counsel ineffective.”
Id. at 9-10.
Petitioner’s claim that counsel was ineffective for failing to request the trial court
to ask the jury for clarification about the evidence it wanted to see when it asked for
McCanery’s deposition and a transcript of Graves fared no better. The appellate court
concluded that defense counsel had no basis to request a clarification when the jury
“stated quite plainly” what it wished to see. Id. at 11. Lastly, the appellate court
concluded that in the circumstances of Petitioner’s trial, giving the hammer instruction
was not improper, and that defense counsel was, therefore, not ineffective for failing to
move for a mistrial after the jury told the court that the jury had reached an impasse.
Federal Habeas Petition
As noted above, Petitioner raises eight claims for habeas relief, three claims of
trial court error that deprived him of a fair trial (admitting police testimony regarding
gang activity in the area of the crimes; admitting photo exhibits showing gang graffiti in
the area; and admitting McCanery’s testimony that he recognized Petitioner because
Petitioner had shot him in June 2007); and five claims of ineffective assistance of defense
counsel (failing to call Kesha and Gloria Johnson as alibi witnesses, failing to ask
Petitioner at trial where he was at the time of the murder, failing to introduce evidence
showing that in June 2007 Petitioner did not have dreadlocks, failing to request
clarification as to what evidence the jury asked to see during deliberations, and failing to
ask for a mistrial when the jury indicated it had reached an impasse).
Standard of Review
Federal habeas relief is available to a state prisoner “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). Where a claim has been adjudicated on the merits in state court, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that
application for a writ of habeas corpus cannot be granted unless the state court’s
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
28 U.S.C. § 2254(d).
A state court “unreasonably applies” clearly established federal law when it
“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.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). “[A] determination of a factual issue made by a State
court shall be presumed to be correct,” 28 U.S.C. § 2254(e)(1), and the petitioner has the
burden of rebutting this presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). A habeas petitioner meets the demanding standard for relief “only
when he shows that the state court’s decision was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Dunn v. Madison, 138 S. Ct. 9, 11 (2017) (citation
Claims of Trial Court Error
The Court first concludes that the state appellate court reasonably held that
admission of gang-related evidence was not error. “In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States,” and it is not within “the province of a federal habeas
court to reexamine state-court determinations on state-law questions,” such as the
admissibility of evidence at trial. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(citations omitted); see also Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006).
“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, 436
F.3d at 1018. A habeas petitioner must show that alleged errors in the admission of
evidence rendered the trial fundamentally unfair, such that there is reasonable probability
that error affected the outcome of trial. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th
Here, as the state appellate court held, the prosecution’s theory was that the crimes
were gang related, and the gang-related evidence was relevant to prove motive and
identification. See, e.g., Melvin v. Sec’y, Dep’t of Corr., No. 8:13-CV-1201-T-23AEP,
2016 WL 6166914, at *13 (M.D. Fla. Oct. 24, 2016) (“Evidence of gang affiliation is
admissible when it is relevant to show motive . . . .”). It might have been better had the
trial court limited the extent of the gang evidence presented by Stagge, but this Court
concludes that, in light of the evidence of guilt against Petitioner, the evidentiary errors
alleged were not so prejudicial as to amount to a denial of due process.
Similarly, the Court rejects Petitioner’s third ground for federal habeas relief – that
Petitioner was unfairly prejudiced by the admission of McCanery’s testimony that he
recognized Petitioner at the time of the murder, in part, because Petitioner had shot him
in June 2007. The Court cannot say that the Missouri Court of Appeals’ adjudication of
this claim was factually or legally unreasonable based on the evidence at trial. Evidence
concerning the June 2007 shooting was fairly limited in the context of the whole trial,
was relevant to the question of identification, as well as motive, and was, thus, not merely
improper propensity evidence.
Claims of Ineffective Assistance of Defense Counsel
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, a habeas petitioner must show both that “[his] counsel’s
performance was deficient” and that “the deficient performance prejudiced [his]
defense.” Strickland, 466 U.S. at 687. Counsel is presumed competent, and decisions
based on a reasonable trial strategy do not demonstrate incompetence. Id. at 689-91.
“Strickland’s first prong sets a high bar. A defense lawyer navigating a criminal
proceeding faces any number of choices about how best to make a client’s case. The
lawyer has discharged his constitutional responsibility so long as his decisions fall within
the ‘wide range of professionally competent assistance.’” Buck v. Davis, 137 S. Ct. 759,
775 (2017) (quoting Strickland, 466 U.S. at 690).
To show prejudice, a 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; see also Booth v. Kelley, ___ F.3d ___, 2018 WL 987740, at *2
(Feb. 21, 2018).
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.” See Williams v. Roper, 695 F.3d 825, 831 (8th
Cir. 2012) (citation omitted). 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 v. Cone, 535 U.S. 685, 698-99 (2005). “Rather, he
must show that the [state court] applied Strickland to the facts of his case in an
objectively unreasonable manner.” Id. at 699.
Here, this Court’s careful review of the record convinces the Court that the state
appellate court’s adjudication of Petitioner’s claims of ineffective assistance of defense
counsel did not result in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law or that was based on an unreasonable
determination of the facts in light of the evidence presented at trial and the postconviction
hearing. The state court reasonably found that defense counsel’s failure to call Kesha
and/or Gloria Johnson as alibi witnesses was reasonable trial strategy in light of their
vague and inconsistent statements to defense counsel’s investigator. The Court further
notes that their statements were inconsistent with Petitioner’s alibi story that he conveyed
to defense counsel. See Haidul v. Steele, No. 4:14-CV-817-SPM, 2017 WL 4310264, at
*4 (E.D. Mo. Sept. 28, 2017) (finding that it was not unreasonable trial strategy for
defense counsel not to call an individual as an alibi witness where counsel’s notes
indicated the individual could not recall with certainly what day he had lunch with the
In considering the value of the testimony of uncalled witnesses in an ineffective
assistance claim, the Eighth Circuit has stated a habeas court should consider “(1) the
credibility of all witnesses, including the likely impeachment of the uncalled defense
witnesses; (2) the interplay of the uncalled witnesses with the actual defense witnesses
called; and (3) the strength of the evidence actually presented by the prosecution.”
Armstrong v. Kenna, 590 F.3d 592, 596 (8th Cir. 2010). Applying these standards here,
the state court’s determination cannot be faulted. See, e.g., Crayton v. Steele, No. 4:14CV-1038 (CEJ), 2017 WL 1355484, at *10 (E.D. Mo. Apr. 13, 2017).
With respect to the failure to ask Petitioner where he was at the time, the Court is
not persuaded by defense counsel’s reasoning that asking Petitioner where he was at the
time of the murder would have been like trying to prove a negative. Such logic would
support not asking any criminal defendant where he was at the time of the charged crime,
even if alibi evidence were strong. Another reason given by defense counsel for not
asking Petitioner the question at issue – that it would have distracted the jury from
focusing on the weakness of the State’s case – was based on defense counsel’s belief that
McCanery’s identification of Petitioner as the person who shot Walker was weak in light
of McCanery’s changing stories. While also problematic, 2 the Court cannot say that the
state court’s finding that defense counsel made a reasonable strategic decision on this
matter was objectively unreasonable, especially coupled with defense counsel’s
testimony that he did not ask Petitioner his whereabouts at the time of the murder because
this would have opened Petitioner up to harmful cross-examination.
Having found that defense counsel’s strategy was reasonable, the state court did
not consider the second prong of the Strickland analysis. This Court now concludes that
the second prong also is not satisfied, that is, the Court concludes that that there is no
reasonable probability that, but for counsel’s presumed unprofessional error, the result of
the trial would have been different. See Haidul, 2017 WL 4310264, at *4;
With respect to the photograph showing Petitioner with short hair in May 2007,
Defense counsel testified at the post-conviction hearing that he did not recall seeing such
photographic evidence. There is no indication that the photo was not from May 2007.
However, where, as here, Plaintiff presented the photograph mid-trial, and admitted at the
evidentiary hearing that he had altered the date on the back of the photo, something that
was evident to the State’s counsel at the evidentiary hearing, the Court cannot say that the
state appellate was unreasonable in its determination that Petitioner failed to show that a
reasonably competent defense attorney would have introduced the photo.
And even if Defense counsel’s performance on this matter was below standard, the
Counsel does not appear to have taken into account Detective Graves’ testimony that
Wilson also identified Petitioner as the person who shot and murdered Walker. Thus, this
was arguably a case of not one eyewitness identifying a defendant, but of two eye
witnesses doing so. But the Court notes that at trial, Wilson denied making this statement
to Graves, and testified that he could not identify the shooter.
Court concludes that had the jury heard evidence (either photographic or testimonial) that
Petitioner did not have dreadlocks in June 2007, there does not exist a reasonable
probability that the result of the trial would have been different. McCanery testified that
prior to the murder, he had known Petitioner for about seven years. Thus, McCanery’s
possible misidentification of Petitioner as the person who shot him in June 2007 was not
critical to the State’s identification evidence. While the hair-length evidence might have
been helpful to Petitioner’s case, the absence of this evidence does not undermine the
Court’s confidence in the verdict.
The Court finds that the Missouri Court of Appeals based its rejection of
Petitioner’s last two claims of ineffective assistance of defense counsel on the correct
legal principles and on a fair reading of the record. There is nothing in the record to
suggest that the jury was not in fact seeking the deposition of McCanery that had been
discussed in cross-examination. Further, it seems clear that a request by defense counsel
to ask the jury for clarification would have been rejected by the trial court, given the trial
court’s stated belief that the terms of the jury’s request were clear. Additionally, even if
defense counsel asked the court to ask the jury for clarification, the court granted the
motion, and the jury then asked for McCanery’s videotaped statement, the Court cannot
say that the result of the trial would have been different. The Court does not believe that
habeas relief can be predicated on these multiple degrees of speculation.
With regard to Petitioner’s last claim, the Court first notes that Respondent treats it
as a claim of trial court error, and argues that the claim was procedurally defaulted
because Petitioner did not raise it on direct appeal. A fair reading of the habeas petition,
however, shows that Petitioner is primarily claiming that defense counsel was ineffective
in failing to ask for a mistrial after the jury conveyed its impasse to the trial court and the
trial court gave the hammer instruction. Considering both aspects of the claim – denial of
due process due to trial court error, and ineffective assistance – the claim fails.
The Supreme Court has recognized that “[a]ny criminal defendant . . . being tried
by a jury is entitled to the uncoerced verdict of that body.” Lowenfield v. Phelps, 484
U.S. 231, 241 (1988). To determine whether a trial court improperly coerced the jury, a
court “consider[s] the supplemental charge given by the trial court in its context and
under all the circumstances.” Id. at 237 (citation omitted). Due to the fact-intensive
nature of the inquiry into jury coercion, federal habeas review is particularly deferential
to the findings of the state court. Early v. Packer, 537 U.S. 3, 11 (2002); see also
Stallings v. Delo, 117 F.3d 378, 381 (8th Cir. 1997) (stating that a state court’s factual
finding that jury coercion did not occur is entitled to a presumption of correctness). Here
the state appellate court considered the totality of the circumstances and reasonably
concluded that the trial court’s instruction was proper and not coercive. And the
appellate court’s corollary conclusion that defense counsel’s failure to ask for a mistrial is
also objectively reasonable.
In this case the evidence of guilt is not overwhelming. Furthermore, the jury
initially could not reach a guilty verdict. Nevertheless, for the reasons stated above, the
Court does not believe that Petitioner is entitled to federal habeas relief. The Court also
does not believe that reasonable jurists might find the Court’s assessment of the issues
presented in this case debatable or wrong, for purposes of issuing a Certificate of
Appealability under 28 U.S.C. § 2254(d)(2). See Buck v. Davis, 137 S. Ct. 759, 773
(2017) (standard for issuing a Certificate of Appealability) (citing Miller–El v. Cockrell,
537 U.S. 322, 336 (2003)).
IT IS HEREBY ORDERED that the petition of Julius Smith for a writ of habeas
corpus relief is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability shall not be
A separate Judgment shall accompany this Memorandum and Order.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 8th day of March, 2018.
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