Moore v. Wallace

Filing 10

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the Petition of Montrell Moore 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 03/12/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MONTRELL MOORE,
Petitioner,
v.
JASON LEWIS, et al., 1
Respondent.

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No. 4:14CV2056 RLW

MEMORANDUM AND ORDER
This matter is before the Court on the Petition ofMontrell Moore 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 Montrell Moore is currently incarcerated at the Southeast Correctional Center
("SECC") pursuant to the judgment and sentence of the Circuit Court of St. Louis City, Missouri.
(Resp't's Ex. 3 pp. 95-100) On August 11, 2010, a jury found Petitioner guilty of second-degree
murder, abuse of a child resulting in death, endangering the welfare of a child in the first degree,
possession of a controlled substance, possession of marijuana under 35 grams, and possession of
drug paraphernalia. (Resp't's Ex. 6 p. 1; Resp't's Ex. 3 pp. 7, 83-88) On September 10, 2010,
the court sentenced him to consecutive terms of life imprisonment on the murder and child abuse
resulting in death convictions; consecutive terms of 7 years' imprisonment on the endangering

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Jason Lewis is now the warden of Western Missouri 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, Jason Lewis' name will be substituted as the named respondent in this action.
Further, because Petitioner challenges future consecutive sentences, Missouri Attorney General
Joshua D. Hawley is also a proper party respondent. 28 U.S.C. § 2254, Rule 2(b). Future
pleadings shall reflect these changes in the caption.

the welfare of a child and possession of a controlled substance counts; and concurrent one year
terms of imprisonment on the marijuana and drug paraphernalia counts. (Resp't's Ex. 3 pp. 95100) Petitioner filed a direct appeal, and on December 13, 2011, the Missouri Court of Appeals
affirmed the judgment of the trial court. (Resp't's Ex. 6) 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. 10 pp. 29-33, 41-48) Appointed counsel filed an amended Rule 29.15
motion on July 16, 2012. (Id. at pp. 50-72) On May 14, 2013, the motion court denied
Petitioner's motion for post-conviction relief. (Id. at pp. 79-86) On May 13, 2014, the Missouri
Court of Appeals affirmed the judgment of the motion court. (Resp't's Ex. 13) On December
15, 2014, Petitioner filed the present petition for habeas relief in federal court.

II. Factual Background2
In June of 2009, Petitioner was living with his girlfriend, L.C., and her two children, S.B.
and R.W., ages 2 and 9 respectively. On June 26, 2009, L.C. gave S.B. a bath and then took him
downstairs around 11 :00 p.m. where he slept on a sectional couch. During the night, L.C. heard
S.B. whining so she went downstairs to check on him. Petitioner was in the kitchen and told
L.C. that nothing was wrong with S.B. During the night, S.B. awoke and was fussy and loud. In
the morning, L.C. woke up around 4:30 a.m. to get ready for work. She tucked in S.B., told him
to go back to sleep, and left for work around 5:00 a.m. L.C.'s fifteen-year-old sister, T.C., was
staying there to help with S.B. She slept on the opposite end of the couch from S.B. and
awakened to knocks at the door from paramedics. Around 8:00 a.m., Petitioner called L.C. to
inform her that S .B. had been taken to the emergency room because his face was peeling.
Petitioner said that he found S.B. drinking a cleaning fluid. When S.B. arrived at the hospital,

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The Court sets forth the facts as stated in the Missouri Court of Appeals' opinion in Moore v.
State, 431 S.W.3d 15 (Mo. Ct. App. 2014).
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S.B. was not breathing and was in complete cardiopulmonary arrest. The ER physician found a
burn on S.B.'s face that was consistent with scalding from a very hot liquid and found no
indication that S.B. had ingested a chemical cleaning fluid. The doctor also found a bruise on
S.B.'s face and large bruises in the shape of hand prints, finger prints, and fist marks along S.B.'s
rib cage.
When the hospital workers informed Petitioner that S.B. could not be resuscitated,
Petitioner started hitting the walls and apologizing. When L.C. arrived at the hospital, S.B. had
already passed away. L.C. hit Petitioner and asked what he did to her son. Petitioner again
apologized. However, he provided inconsistent stories as to how S.B. was injured. He finally
admitted that he struck S.B. several times with his hand, and he wrote an apology letter to L.C.
from jail. The medical examiner found extensive injuries on S.B., including a blunt force injury
on his forehead, broken ribs on both sides, punctured lungs, bruising on his heart, a tear in the
liver, and a lacerated spleen and kidney. Cause of death was ruled as abdominal blunt force
trauma. Moore v. State, 431S.W.3d15, 17-18 (Mo. Ct. App. 2014).

III. Petitioner's Claims
In his Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, Petitioner raises six
claims for federal habeas relief. Petitioner argues in Ground One that the trial court erred in not
striking juror 837 for cause because the juror was biased. In Ground Two, Petitioner asserts that
the trial court erred in allowing witness testimony regarding prior child abuse of S.B. because it
improperly showed a propensity for child abuse. Ground Three alleges that the trial court erred
by admitting autopsy photos. In Ground Four, Petitioner contends that the trial court erred in
denying Petitioner's motion for a new trial because the charges of second degree murder and
abuse of a child resulting in death violated the ban on double jeopardy. Petitioner asserts in

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Ground Five that trial counsel was ineffective for failing to call a potential witness, Tayrean
Smith. Finally, in Ground Six, Petitioner contends that trial counsel was ineffective for failing to
present theory that S.B.'s injuries were caused by someone else.

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 umeasonable 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).
"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 "umeasonable 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 umeasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also

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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 concedes that Petitioner timely filed his petition and
properly raised his claims in state court. Thus, Petitioner's claims are exhausted and are not
procedurally barred from federal review.
A. Ground One
Petitioner argues in ground one that the trial court erred in not striking juror 83 7 for cause
because the juror was biased. Specifically, Petitioner contends that the juror repeatedly made
statements during voir dire that demonstrated bias against Petitioner, depriving him of a fair trial.
Petitioner raised this ground on direct appeal. The Missouri Court of Appeals addressed
Petitioner's claim and found that the trial court did not abuse its discretion in failing to strike the
venireperson for cause. (Resp't's Ex. 6 p. 8) The Moore court extensively quoted the voir dire

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transcript, wherein the juror indicated that she and three female cousins had been abused by an
uncle. (Id. at pp. 4-8) She stated that she would have difficulty listening to the evidence due to
her experience as a mother and the fact that a minor was involved. (Id. at pp. 5-6) However, the
juror also stated that her experience would not affect her ability to listen to the evidence and be
fair to both sides. (Id. at pp. 5-7) The Missouri Court of Appeals addressed Petitioner's claim
that the trial court erred in failing to strike the venireperson because she demonstrated an
inability to remain impartial and found:
Here, venireperson Raymond consistently stated that she would be able to be fair
to both sides and listen to all the evidence before reaching a decision.
Nevertheless, Moore claims that the trial court had a duty to independently
examine venireperson Raymond. However, "the court only has a duty to make an
independent inquiry when the [venireperson] is equivocal about [her] ability to be
fair and impartial." Garvey, 328 S.W.3d at 415. After reviewing the context of
the entire examination of venireperson Raymond, we fail to find she equivocated
about her ability to be fair and impartial. Although her answers indicated that she
may find the trial hard to handle and emotionally difficult, she continuously gave
assurance that she would be impartial and base her decision on the evidence
presented. Accordingly, the trial court did not abuse its discretion in failing to
strike venireperson Raymond for cause. Point one is denied.

(Id. at pp. 7-8)
"The issue of an individual juror's partiality is a question of 'historical fact' for the trial
court, and is entitled to 'special deference."' Reynolds v. Russell, No. 4:14 CV 1060 CDP, 2015
WL 7273322, at *4 (E.D. Mo. Nov. 18, 2015) (quoting Patton v. Yount, 467 U.S. 1025, 1036,
138 (1984)). '"Under 28 U.S.C. § 2254(d), a habeas court must, of course, afford this
determination the presumption of correctness due a state court's factual findings."' Id. (quoting

Logan v. Lockhart, 994 F .2d 1324, 1326-27 (8th Cir. 1993)). '"The question for this court, then,
is whether the state court's conclusion that the juror would be impartial is fairly supported by the
record."' Id. (quoting Logan, 994 F .2d at 1327). Petitioner has the burden of showing "with
clear and convincing evidence ... that the state court incorrectly resolved the factual issue of
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[Petitioner's] bias." McFarlandv. Wallace, No. 4:12CV290 RWS, 2015 WL 1347001, at *25
(E.D. Mo. Mar. 19, 2015).
Here, the state court found that Plaintiff was unequivocal in stating that she could remain
fair and impartial and would base her decision on the evidence presented. (Resp 't' s Ex. 6 pp. 78) Because Petitioner has not presented clear and convincing evidence to the contrary, the Court
"must accept the state court's factual finding that [Ms. Raymond] was not actually biased."

Sanders v. Norris, 529 F.3d 787, 791 (8th Cir. 2008) (citing 28 U.S.C. § 2254(e)(l)). Thus, the
Court finds that Petitioner's first ground for habeas relief lacks merit and is denied.
B. Ground Two

In his second ground, Petitioner claims that the trial court erred in allowing witness
testimony regarding prior child abuse of S.B. because it improperly showed a propensity for
child abuse. Specifically, Petitioner asserts that the testimonies from Tia Coleman and Re'Gan
Wilson regarding Petitioner's prior bad acts violated his right to be tried only for the charged
crimes. The Missouri Court of Appeals addressed this claim and found no prejudice from the
admission of the evidence in light of the substantial evidence against Petitioner. (Resp't's Ex. 6
p. 9) The state court did not find that the admission of Coleman and Wilson's testimony was
inadmissible. However, the court assumed arguendo that those testimonies were inadmissible
and found, "in light of all the evidence which was properly admitted in this case, we conclude
that there is not a reasonable probability that the jury would have acquitted [Petitioner] but for
the allegedly erroneously admitted testimony of Coleman and Wilson." (Id.)
The challenged testimony included Coleman testifying that she saw Petitioner "grab the
victim's head to force it to tum around so the victim would go to sleep" and that "the victim had
scratches all over his body and a scar across his forehead" which the victim attributed to an iron.

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(Id. at p. 8) Wilson testified that she witnessed Petitioner "hit the victim in the leg and arm" and

"spank the victim ifhe ever got off the couch." (Id. at p. 9) In addition, Wilson recalled that she
heard Petitioner "punch the victim in the stomach, causing the victim to throw up." (Id.)
Petitioner argued on appeal, as he does in the present Petition, that the trial court admitted this
testimony for the purpose of showing his propensity for abusing the victim. (Id.) The appellate
court found that Petitioner was not prejudiced by the admission of this testimony. (Id. at p. 11)
"'Questions regarding admissibility of evidence are matters of state law, and they are
reviewed in federal habeas inquiries only to determine whether an alleged error infringes upon a
specific constitutional protection or is so prejudicial as to be a denial of due process.'" Rousan v.
Roper, 436 F.3d 951, 958 (8th Cir. 2006) (quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th

Cir.1993)). "The question of undue prejudice in the admissibility of evidence addresses itself to
the discretion of the trial court." Anderson v. Goeke, 44 F.3d 675, 678 (8th Cir. 1995). Federal
courts on habeas review "will reverse a state court evidentiary ruling only if the 'petitioner ...
show[ s] that the alleged improprieties were so egregious that they fatally infected the
proceedings and rendered his entire trial fundamentally unfair."' Id. at 679 (quoting Hamilton v.
Nix, 809 F.2d 463, 470 (8th Cir. 1987) (internal quotation omitted)). "'To carry that burden, the

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 Hamilton, 809 F .2d at 4 70).
Here, the Court gives appropriate deference to the state court's finding that Petitioner
failed to demonstrate the requisite prejudice. The totality of evidence presented at trial supported
Petitioner's conviction regardless of the witnesses' testimonies. Petitioner changed his story
several times before finally admitting to striking the victim. Upon hearing that S.B. could not be

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revived, he began hitting the walls and apologizing. In addition, he wrote a letter to the victim's
mother stating he was sorry. Further, the medical evidence showed bums consistent with
immersion into a hot liquid and not ingestion of cleaner. In addition, the bruising was consistent
with hand marks from an adult, and the cause of death resulted from a massive amount of force.
Based on this evidence, Petitioner is unable to demonstrate that the testimony of Coleman and
Wilson "fatally infected the proceedings or that there is a reasonable probability that [the
testimony] affected the outcome of the trial." White v. Wallace, No. 4:14-CV-1357 (CEJ), 2017
WL 1374711, at *4 (E.D. Mo. Apr. 17, 2017). Thus, the Court concludes that the appellate
court's determination that the trial court did not err in admitting the testimony of Coleman and
Wilson was not contrary to or an unreasonable application of clearly established federal law.
The Court therefore finds that Petitioner's second ground for habeas relief lacks merit.
C. Ground Three

In his third ground for habeas relief, Petitioner argues that the trial court erred by
admitting autopsy photos. Specifically, he claims that the three photos showed the victim on the
autopsy table with his skin pulled away and internal organs exposed, which caused three jurors to
cry and the judge to remark that the photos "obviously affected" the jurors. Petitioner raised this
claim in state court. According to the appellate court's decision, after introducing the first photo,
Petitioner's attorney approached the bench and stated, "[i]t's clear that at least three jurors are
openly crying. Several others aren't looking at the pictures and looking disgusted by the whole
thing, and several are looking down." (Resp't's Ex. 6 p. 11) The trial judge responded, "I
wouldn't say disgusted, but they are obviously affected." (Id.) The trial court admitted the next
two photos but did not publish them. (Id. at p. 12) On appeal, Petitioner argued that the
"photographs were unduly gruesome and served only to arouse the emotions of the jury and

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prejudice the jury against him in violation of his right to an impartial jury." (Id.) In addition,
Petitioner argued that the photos were unnecessary because Dr. Nanduri, the medical examiner,
testified to the extent of the victim's injuries. (Id.)
The Missouri Court of Appeals found the trial court did not abuse its discretion in
admitting the photos:
The trial court is given broad discretion in the admission of photographs,
and our review is limited to whether the trial court abused that discretion. State v.
Johnson, 244 S.W.3d 144, 161 (Mo. bane 2008). The photographs are not
inadmissible just because other evidence also describes what is shown in the
photograph. Id. If the photograph is relevant, it should not be excluded even if it
is inflammatory. Id. Generally, even gruesome photographs are admissible if
they: (1) show the nature and location of wounds; (2) enable jurors to better
understand the testimony at trial; and (3) aid in establishing an element of the
State's case. Id. at 161-62.
Here, the photographs aided the jury in understanding the nature, extent,
and location of the internal wounds the victim suffered. The medical examiner,
Dr. Nanduri, testified about the various injuries the victim suffered .... These
internal injuries were not readily apparent from other external photos of the
victim, and the photographs complained of by Moore served to corroborate and
help explain to the jury Dr. Nanduri's testimony about the nature and location of
the injuries suffered by the victim. Furthermore, the State should not be denied
evidence merely because the photographs are gruesome.
Although the
photographs may have been gruesome, the gruesome nature of the photographs is
the result of the gruesome nature of the crime. Id. at 161. "To exclude graphic
evidence solely because it is graphic would deprive the State of evidence when it
needs it to [sic] most: the evidence would be inadmissible to prosecute what are
typically the most serious crimes." State v. Mayes, 63 S.W.3d 615, 632 (Mo.
bane 2001) (quoting State v. Johnson, 930 S.W.2d 456, 462-63 (Mo. App. W.D.
1996)).
Moore's argument that the photographs were unnecessary because the
cause of death was detailed through testimony and conceded by his defense is also
without merit. See State v. Rios, 234 S.W.3d 412, 427 (Mo. App. W.D. 2007)
(finding photographs admissible even where the cause of death was not in
dispute); State v. Hawkins, 58 S.W.3d 12, 24 (Mo. App. E.D. 2001) (stating that
photographs are not inadmissible merely because the defendant stipulates to some
of the issues involved). Because these photographs showed the nature and
location of wounds, helped the jury understand the medical examiner's testimony,
and aided in the State's case, there was no abuse of discretion in admitting them
into evidence. Point three is denied.
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(Resp't's Ex. 6 pp. 12-13)
As stated above, admissibility of evidence is a matter of state law, and the Court reviews
such admissibility in habeas cases "only to determine whether an alleged error infringes upon a
specific constitutional protection or is so prejudicial as to be a denial of due process." Rousan,
436 F.3d at 958 (internal quotation omitted). The Court finds that Petitioner has failed to
demonstrate that "the alleged improprieties were so egregious that they fatally infected the
proceedings and rendered his entire trial fundamentally unfair." Anderson, 44 F.3d at 679
(quotation omitted). The autopsy photos were relevant and probative in showing the internal
injuries sustained by the victim, and they corroborated the testimony of the medical examiner.

See Rousan, 436 F.3d at 959 (finding the district court did not err in denying habeas relief where
the photographs corroborated the testimony of a key witness for the state, assisted the jury in
understanding the pathologist's testimony, and assist the state's proof of deliberation);

Kuntzelman v. Black, 774 F.2d 291, 292-93 (8th Cir. 1985) (finding no constitutional error in the
admission of "flagrantly gruesome" photographs where the photos "were at least arguably
relevant and probative in showing the identity and condition of the deceased, the location of the
wound, and the intent of [petitioner]"). Thus, the decision of the Missouri Court of Appeals,
finding no error in the admission of the autopsy photos, was not contrary to or an unreasonable
application of clearly established federal law. Petitioner's third ground for habeas relief fails on
the merits.
D. Ground Four
Next, Petitioner claims that the trial court erred in denying Petitioner's motion for a new
trial because based on the trial court's failure to require the State to proceed with either the
charge of first/second degree murder or abuse of a child resulting in death. Petitioner contends
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that both charges involved the same elements, and the act Petitioner was convicted of constituted
a continuous course of conduct, thus violating his right against double jeopardy. Petitioner
raised this claim on direct appeal, and the Missouri Court of Appeals no abuse of discretion.
(Resp't's Ex. 6 p. 16) Specifically, the appellate court found:
Moore first contends his convictions for second-degree murder and abuse
of a child resulting in death constituted multiple convictions for the same offense.
When determining whether successive prosecutions violate double jeopardy, the
proper test to apply is the Blockburger "same-elements" test. State v. Daws, 311
S.W.3d 806, 808 (Mo. bane 2010) (citing US v. Dixon, 509 U.S. 688, 704
(1993)). The same-elements test asks, "whether each offense contains an element
not contained in the other; if not, the Double Jeopardy Clause bars a successive
prosecution." Id. (quoting State v. Burns, 877 S.W.2d 111, 112 (Mo. bane 1994)).
The court's focus is with the elements of the offense at issue and not with the
underlying conduct. Id.
A person commits second degree murder if the person 'knowingly causes
the death of another person or, with the purpose of causing serious physical injury
to another person, causes the death of another person." [Mo. Rev. Stat.] Section
565.021.1. A person commits abuse of a child resulting in death if the person
"knowingly inflicts cruel and inhuman punishment upon a child less than
seventeen years old" and "a child dies as a result . . . . " Section 568.060.
Applying the same-elements test to these offenses, this Court has already held that
"each of these offenses has an element that the other does not and, thus, constitute
separate offenses." State v. Gray, 347 S.W.3d 490, 507 (Mo. App. E.D. 2011).
Accordingly, Moore did not suffer from multiple convictions from the same
offense.
Moore also argues that his convictions violates section 556.041.4 which
states that a person cannot be convicted of more than one offense if "[t]he offense
is defined as a continuing course of conduct and the person's course of conduct
was uninterrupted, unless the law provides that specific periods of such conduct
constitute separate offenses." However, in Gray, this Court has already held that
the offenses of second-degree murder and abuse of a child resulting in death are
not defined as a continuing course of conduct. 347 S.W.3d at 507 . . . .
Accordingly, Moore's convictions do not constitute a continuing course of
conduct and do not violate section 556.041.4.
Having found that Moore did not suffer multiple convictions for the same
offense and that his offenses do not constitute a continuing course of conduct, the
trial court did not abuse its discretion in denying Moore's motion for a new trial.
Point four is denied.

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(Resp't's Ex. 6 pp. 15-16)
"The Fifth Amendment's Double Jeopardy Clause provides a criminal defendant with
three protections." Dodge v. Robinson, 625 F.3d 1014, 1017 (8th Cir. 2010) (citation omitted).
"The first two guard against successive prosecution, either after an acquittal or after a
conviction," and the third protects against cumulative punishment. Id. While Petitioner does not
specify which protection he is invoking, the Court notes that Petitioner was not subjected to
successive prosecution. Thus, the Court presumes that Petitioner challenges his sentences. 3
'"With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing greater punishment than the
legislature intended."' Id. (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)). Thus, the
third protection turns on legislative intent, and a court looks to the language of the two statutes.
Id. at 1017-18. Where "neither statute specifically authorizes cumulative punishment, courts
generally apply the rule of construction announced in Blockburger v. United States, 284 U.S.
299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." Id. at 1018. "'[W]here the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not."' Id. (quoting Blockburger, 284 U.S. at 304).
However, where cumulative punishment is imposed for violations of state law, whether
the legislature authorizes such punishment is a question of state law. Id. "The Supreme Court

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Petitioner also argues that his conviction violates Mo. Rev. Stat. § 556.041, which provides that
a defendant may not be convicted of more than one offense if"( o]ne offense is included in the
other" or if "[t]he offense is defined as a continuing course of conduct .... " Mo. Rev. Stat.§§
556.041.1and556.041.4. Because this does not raise a federal claim, the Court finds this
argument is noncognizable in a federal habeas action. See Poe v. Caspari, 39 F.3d 204, 207 (8th
Cir. 1994) (finding a claim asserting a violation of Missouri law, "without more, is not
cognizable in habeas and does not justify relief under§ 2254").
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repeatedly has held, in the double-jeopardy context, that whether a state legislature intends
cumulative punishment for two offenses is an issue of state law, over which state courts have
final authority." Id. Thus, courts are bound by the Missouri court's construction of Missouri
state statutes. Id. Missouri courts have held that the offenses of second degree murder and abuse
of a child under the respective Missouri statutes each have "an element that the other does not
and, thus, constitute separate offenses" under the Blockburger test. State v. Gray, 347 S.W.3d
490, 507 (Mo. Ct. App. 2011).
Therefore, "to the extent that the Missouri appellate court relied on its interpretation of
Missouri law, upon concluding that the Missouri legislature intended cumulative punishment for
murder and abuse of a child, issue concerning the interpretation of state law are not cognizable in
federal habeas review." Dixon v. Steele, No. 4:13CV691SNLJ (NCC), 2016 WL 4427212, at *5
(E.D. Mo. June 15, 2016). Further, in analyzing Petitioner's double jeopardy claim, the Missouri
appellate court properly applied the Blockburger same-elements test and considered legislative
intent. Thus, the Court finds that the decision of the state court finding no violation of the
Double Jeopardy Clause is not contrary to, and is a reasonable application of, federal law.
Ground four in Petitioner's habeas petition is therefore without merit. Id.
E. Ground Five
Petitioner argues in his fifth ground for habeas relief that trial counsel was ineffective for
failing to call a potential witness, Tayrean Smith ("Smith"). Petitioner raised this claim in his
Rule 29.15 post-conviction motion and on post-conviction appeal. Specifically, Petitioner
contends that trial counsel was ineffective for failing to call Smith as a witness during trial
because Smith would have testified that he never saw Petitioner interact inappropriately with the
victim. The state court addressed this claim and found that counsel was not ineffective. The

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appellate court noted, "Counsel's decision not to call a witness is presumptively a matter of trial
strategy and will not support a claim of ineffectiveness unless the movant clearly establishes
otherwise .... If a potential witness's testimony would not unqualifiedly support the defendant's
case, the failure to call the witness does not constitute ineffective assistance." Moore, 431
S.W.3d at 19 (citations omitted). The Missouri Court of Appeals quoted Strickland in
addressing the reasonableness of counsel's investigation and found:
At the evidentiary hearing, trial counsel testified by deposition that he
tried to contact Smith at the phone number provided by Movant but was unable to
reach him. Counsel said that when he informed Movant that he was unable to
reach Smith at that number, Movant provided another phone number, which
turned out to be a wrong number. Counsel also attempted to obtain Smith's home
address but was unsuccessful. Movant provided no additional information to
assist counsel in locating Smith.
Movant testified that he gave Smith's phone number to counsel and that
counsel informed him that he was unable to reach Smith. Movant acknowledged
that he did not provide his attorney with any additional information to help locate
Smith. Movant also acknowledged that he was aware that Smith was in the
courtroom during his trial but Movant did not inform counsel of Smith's presence.
Movant also admitted that he had lied to his attorney about what happened.
Smith also testified at the evidentiary hearing. Smith said that in the
months preceding Movant's crimes, he lived in the same apartment complex as
Movant, that he never saw Movant hit S.B., and that S.B. did not appear to be
afraid of Movant. Smith said that he did not know T.C. or R.W. Smith also
indicated that he was not at L.C.'s apartment during the time that S.B. sustained
his injuries.
In its order denying post-conviction relief, the motion court found that
Smith had "no credibility." The motion court further found that Smith's proposed
testimony would not have unqualifiedly supported the defense's case because
Smith was not present at the scene because he worked during the day and stayed
at his girlfriend's home at night.
The motion court's findings are supported by the record. The record
clearly shows that counsel made a diligent effort and used reasonable means to
contact Smith. After counsel informed Movant that he was unable to reach Smith,
Movant provided no additional information to assist counsel in locating Smith.
Movant also fails to explain why he did not inform counsel that Smith was present
in the courtroom on the day of trial.
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In any event, Movant fails to demonstrate that Smith's testimony would
have provided a viable defense. See Williams v. State, 168 S.W.3d 433, 442 (Mo.
bane 2005). Smith admitted that he was not present at Movant's apartment during
the time that S.B. sustained his fatal injuries. Moreover, there was strong evidence
of Movant's guilt, including the medical testimony and physical evidence.
Movant was the only adult in the apartment with S.B. at the time he sustained his
fatal injuries. Movant admitted to police that he struck S.B. and that he fabricated
stories to explain what happened to S.B. Movant said that he was "sorry" and
"didn't mean to do anything." There was also evidence that Movant had struck
S.B. on previous occasions. On one occasion, Movant punched S.B. in the
stomach with enough force causing S.B. to throw up.
Given the overwhelming evidence of Movant's guilt, there is no
reasonable probability that the jury would have reached a different outcome had
Smith testified. See Bucklew v. State, 38 S.W.3d 395, 400-01 (Mo. bane 2001).
Accordingly, the motion court did not clearly err in finding that counsel was not
ineffective for failing to call Smith as a witness. Point I is denied.
Id. at 19-20.
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).
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
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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

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 Petitioner mentioned Smith as someone who
was frequently present around Petitioner and the victim and could have testified that Petitioner
was not abusive toward the victim. (Resp't's Ex. 9 p. 6) However, despite trying to speak with
Smith, counsel was unable to contact him via information provided by Petitioner. (Id. at pp. 912) Smith testified at the post-conviction hearing that he was at the apartment with Petitioner
and the victim all the time and never saw Petitioner hit the victim. (Resp't's Ex. 8 pp. 21-22)
He further stated that he never heard from Petitioner's attorney but that Smith was present in the
courtroom during the trial yet never informed counsel that he was there. (Id. at pp. 29-31) The
record also reflects that Smith was not present at the time of the incident because he worked
during the day and stayed at his girlfriend's home at night. (Id. at pp. 32-33)
Petitioner is unable to demonstrate that counsel's performance was deficient for failing to
investigate and call Smith as a defense witness. Counsel diligently and reasonably attempted to
contact Smith; however, Petitioner did not provide additional contact information for Smith,
despite the fact that Smith was present in the courtroom during the trial. Further, Smith was not
in the apartment on the date of the incident and was unable to speak to what occurred between

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Petitioner and the victim. "[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment," and here,
Petitioner has failed to overcome the presumption that counsel's failure to call Smith "might be
considered sound trial strategy." Strickland, 466 U.S. at 690 (internal quotation marks omitted).
Furthermore, Petitioner is unable to demonstrate the requisite prejudice. The evidence
against Petitioner was compelling, including physical evidence, medical evidence, and
Petitioner's apologies. Petitioner has not shown that Smith's testimony would have provided a
viable defense or otherwise would have changed the outcome of the trial. Bucklew, 436 F.3d at
1016; see also Deck v. Steele, 249 F. Supp. 3d 991, 1029 (E.D. Mo. 2017) (finding that because
petitioner could not show that counsel's failure to investigate or call a witness to testify at trial
prejudiced his defense, he could not demonstrate ineffective assistance of counsel). Thus, the
Court finds that the state court reasonably applied Strickland in determining that counsel was not
ineffective. Id. at 1021. Petitioner's fifth ground lacks merit and will be denied.

F. Ground Six
In his sixth and final ground, Petitioner claims that trial counsel was ineffective for
failing to present theory that S.B.' s injuries were caused by someone else. Petitioner argues that
counsel failed to address with the doctors that the bruises on the victim were not necessarily
caused by a large person such as Petitioner. Petitioner raised this claim in his motion for postconviction relief and on appeal, arguing that the bruises could have been caused by the victim's
mother or someone performing CPR. The Missouri Court of Appeals addressed this claim and
found that counsel's choice was a matter of trial strategy and was not unreasonable. The
appellate court noted the medical testimony that established the bruises were caused by a person
oflarge stature such as Petitioner. Moore, 431 S.W.3d at 21. The state court further noted that

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defense counsel asked the medical examiner whether the bruising could be consistent with a
smaller fist or hand, to which the witness responded, "I don't think so." Id. In addition, the
appellate court found:
At the evidentiary hearing, defense counsel said that he did not attempt to
establish that L.C. could have caused S.B. 's injuries because she had a "very good
alibi," in that, she was at work during the time that S.B. sustained his fatal
injuries. Counsel also indicated that S.B.'s injuries went far beyond any injuries
that the child could have sustained as a result of CPR. Following the postconviction hearing, the motion court issued its order, finding that defense
counsel's decision not to pursue a defense theory that L.C. or CPR caused S.B.'s
injuries was reasonable as a matter of trial strategy. We agree.
"The question in an ineffective assistance claim is not whether counsel
could have or even, perhaps, should have made a different decision, but rather
whether the decision made was reasonable under all the circumstances."
Henderson v. State, 111 S.W.3d 537, 540 (Mo. App. W.D. 2003). In the instant
case, counsel gave a reasonable explanation for his decision not to pursue a
defense theory that the child's mother could have inflicted the fatal injuries.
Counsel concluded there was no basis for pursuing this particular line of defense
because it was undisputed that L.C. was at work during the time that S.B.
sustained his fatal injuries. There was also no evidence that CPR caused the
child's fatal injuries. The overwhelming evidence supported the jury's conclusion
that Movant caused S.B.'s death. Defense counsel's decision to abandon a nonviable defense theory was reasonable trial strategy. See Hamilton v. State, 208
S.W.3d 344, 349 (Mo. App. S.D. 2006). Accordingly, the motion court did not err
in denying this claim. Point II is denied.
Id.

The Court agrees that trial counsel's decision not to pursue a defense that someone else
caused the bruising was reasonable trial strategy. The record shows that the victim's mother was
at work when the victim was injured. Further, there was no evidence that CPR caused the fatal
injuries. As stated above, the evidence pointed to Petitioner as the person that caused the
victim's death. "Post-conviction counsel cannot be ineffective for failing to pursue a nonmeritorious claim." Deck, 249 F. Supp. 3d at 1029. "Based on the foregoing and the other
evidence ofrecord, and considering defense counsel's conduct based on his perspective at the

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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 the state court's determination that "[d]efense
counsel's decision to abandon a non-viable defense theory was reasonable trial strategy" and was
not ineffective assistance was not contrary to, or an unreasonable application of, the standard
articulated by the Supreme Court in Strickland. Moore, 431 S.W.3d at 21. Petitioner's sixth
ground for habeas relief will be denied for lack of merit.
According! y,
IT IS HEREBY ORDERED that the Petition ofMontrell Moore 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.
Dated this 5th day of March, 2018.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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