Riley v. Sachse

Filing 9

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is DENIED, and this action is DISMISSED. IT IS FURTHER ORDERED that a certificate of appealability will not be issued. 28 U.S.C. § 2253. Signed by Magistrate Judge Noelle C. Collins on February 6, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRANKLIN RILEY, JR.,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
JENNIFER SACHSE,
Respondent.

Case No. 4:15-CV-00459-NCC

MEMORANDUM AND ORDER
This matter is before the court on Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (Doc. 1). The parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)
(Doc. 6). After reviewing the case, the Court has determined that Petitioner is not entitled to
relief. As a result, the Court will DENY the Petition and DISMISS the case.
I. BACKGROUND
On March 16, 2011, a jury found Petitioner guilty of attempted manufacture or
production of a controlled substance (Count I) and possession of anhydrous ammonia1 in an
unapproved container (Count II) (Doc. 7-3 at 6). The trial court sentenced Petitioner to
consecutive terms of incarceration in the department of corrections of fifteen years for attempted
manufacture or production of a controlled substance and four years for possession of anhydrous
ammonia in an unapproved container (Id.).
Petitioner filed a direct appeal raising three claims:
1

Anhydrous ammonia is a colorless gas traditionally used as an agricultural fertilizer and
industrial refrigerant. The gas is a precursor chemical that is sometimes used in manufacturing
methamphetamine. United States v. Burgess, 119 F. App’x 852, 853 (8th Cir. 2005)
(unpublished).

(1) The trial court erred when it overruled Petitioner’s motions for judgment of acquittal,
and in imposing sentence and judgment against him for attempted manufacturing of a
controlled substance because the evidence was insufficient to prove the offense beyond a
reasonable doubt as the items were found in a car shared by three occupants in which
Petitioner was the passenger, another item was found on the side of the road but officers
could not verify that anyone in the car had possessed it or that it contained any illegal
ingredient, a cup that the State alleged contained anhydrous ammonia was not found, the
evidence was immediately destroyed before Petitioner had any opportunity to test it, the
State used improper hearsay evidence to argue Petitioner’s guilt, and the evidence as a
whole was insufficient to prove that Mr. Riley had any knowledge of the manufacturing
process or had the requisite intent to commit this offense;
(2) The trial court erred when it overruled Petitioner’s motions for judgment of acquittal,
and in imposing sentence and judgment against him for being an accomplice to
possession of anhydrous ammonia in a nonapproved container because the evidence was
insufficient to show that any person possessed anhydrous ammonia in a cup or a pitcher,
or that Petitioner aided or encouraged the unnamed person in any way; and
(3) The trial court erred when it allowed the State to elicit testimony from Corporal Matt
Wilt about out-of-court statements made to him by Louis Goodwin, a non-testifying key
witness, because the testimony constituted impermissible hearsay, the prosecutor elicited
the statements in order to prove the truth of the matter asserted, but Goodwin was not
called to testify at trial and the State did not present sufficient evidence to show that he
was unavailable, and Petitioner was severely prejudiced by being denied any opportunity
to confront a key witness and accuser in his case, and he was further prejudiced when the
prosecutor argued the truth of the hearsay testimony to the jury during closing to
convince them to find Petitioner guilty.
(Doc. 7-5). The Missouri Court of Appeals for the Eastern District, finding no error of law,
affirmed the judgment (Doc. 7-7).
On September 7, 2012, Petitioner filed a pro se motion for post-conviction relief (Doc. 79). On March 1, 2013, with the assistance of counsel, Petitioner filed an amended motion for
post-conviction relief (Id. at 14-34). On December 21, 2013, after an evidentiary hearing, the
motion court denied Petitioner’s amended motion (Id. at 35-39). On January 23, 2014, Petitioner
filed a notice of appeal (Id.at 3) and, with the assistance of counsel, subsequently submitted a
brief in support of his appeal raising the following two grounds for relief:
(1) The motion court erred in denying Petitioner’s motion for post-conviction relief
because Petitioner was denied effective assistance of counsel as his trial counsel failed to

2

object and seek a mistrial when the venire panel was tainted by inflammatory and
prejudicial remarks by venire panel members #48, Mr. Anderson, and #13, Ms. Harris,
that they knew Petitioner and his father, and because of that, they knew Petitioner was
guilty; and
(2) The motion court erred in denying Petitioner’s motion for post-conviction relief
because Petitioner was denied effective assistance of counsel as his trial counsel failed to
object to the testimony of Corporal Matt Wilt that Louis Goodwin told him that a pitcher
was thrown from the vehicle in which appellant was riding, and that the fumes from the
pitcher burned his arm and face, on the basis that it constituted improper hearsay
testimony.
(Doc. 7-10). On November 12, 2014, the Missouri Court of Appeals for the Eastern District
affirmed the circuit court’s denial of the motion (Doc. 7-12).
On March 12, 2015, Petitioner filed the instant Section 2254 Petition in which he raises
the following three grounds for relief:
(1) Trial counsel was ineffective for failing to object and seek a mistrial when two
venirepersons indicated that they knew Petitioner and assumed he was guilty (Doc. 1 at
5);
(2) Trial counsel was ineffective for failing to object to out-of-court hearsay testimony
and the State’s use of that testimony in closing argument (Id.); and
(3) Trial counsel was ineffective for failing to object to the State’s questions regarding
Petitioner’s assertion of his right to remain silent (Id.).
II. DISCUSSION
“In the habeas setting, a federal court is bound by the AEDPA to exercise only limited
and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751
(8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner
unless the state court’s adjudication of a claim “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 “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

3

A state court decision is contrary to clearly established Supreme Court precedent if “the
state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or
. . . decides a case differently than [the] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable
application of clearly established federal law if it “correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08. Finally, a
state court decision involves an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings only if it is shown that the state court’s presumptively
correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Ryan v.
Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
A. Procedural Default
To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly
presented the substance of the claim to the state courts, thereby affording the state courts a fair
opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v.
Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been
fairly presented when a petitioner has properly raised the same factual grounds and legal theories
in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that
have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted
may not give rise to federal habeas relief unless the petitioner can demonstrate cause and
prejudice for the default. Id. “[T]he existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective factor external to the defense impeded

4

counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478,
488 (1986).
A portion of Ground 2 and the entirety of Ground 3 have been procedurally defaulted and
may not give rise to federal habeas relief. Although he raised these grounds before the motion
court, Petitioner failed to raise them in his appeal of the motion court’s decision. Specifically,
Petitioner did not raise Ground 3 before the post-conviction appellate court. As to Ground 2,
before the post-conviction appellate court Petitioner asserted that the motion court erred in
denying Petitioner’s motion for post-conviction relief because Petitioner was denied effective
assistance of counsel as his trial counsel failed to object to the testimony of Corporal Matt Wilt
that Louis Goodwin had told him that a pitcher had been thrown from the vehicle in which
Petitioner was riding, and that the fumes from the pitcher had burned his arm and face, on the
basis that it constituted improper hearsay testimony (Doc. 7-10). However, Petitioner did not
raise an ineffective assistance of counsel claim regarding the State’s use of this testimony in
closing. Failure to appeal from a denial of post-conviction relief constitutes procedural default.
Smith v. Jones, 923 F.2d 588, 589 (8th Cir. 1991). Default is only excused through a showing of
cause and prejudice or miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner has not alleged cause and prejudice for the default. As a result, Petitioner is not
entitled to relief on this portion of Ground 2 and Ground 3.
B. Merits
Remaining before the Court for review are the following claims of ineffective assistance
of trial counsel: (1) trial counsel was ineffective for failing to object and seek a mistrial when
two venirepersons indicated that they knew Petitioner and assumed he was guilty; and (2) trial
counsel was ineffective for failing to object to out-of-court hearsay testimony (Doc. 1 at 5).

5

In order to state a claim of ineffective assistance of trial counsel, Petitioner must
demonstrate that his counsel’s performance was deficient and that he was prejudiced by that
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient representation
means counsel’s conduct fell below the conduct of a reasonably competent attorney. Id. To
establish prejudice, Petitioner must show “a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Federal habeas review of a Strickland claim is highly deferential, because “[t]he question is not
whether a federal court believes the state court’s determination under the Strickland standard was
incorrect but whether the determination was unreasonable—a substantially higher threshold.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotations and citations omitted).
1. Statements by Two Members of the Venire Panel
In Ground 1, Petitioner asserts that trial counsel was ineffective for failing to object and
seek a mistrial when two venirepersons indicated that they knew Petitioner and assumed he was
guilty (Doc. 1 at 5).2 Specifically, Petitioner asserts that although two venirepersons were
stricken for cause, their responses during voir dire were extremely prejudicial and reasonably
competent counsel would have objected to their statements and sought a mistrial (Doc. 7-9 at
18).
During voir dire, when the State asked venireperson 48, “Are you willing to listen to all
the evidence before you decide whether somebody’s guilty or not?,” the following interaction
occurred (Doc. 7-1 at 77).
2

Although Petitioner does not provide the Court with any more detail regarding his claims, he
attached various documents from his case as exhibits to his Petition including the motion court’s
decision (Doc. 1-1 at 1-5) and the post-conviction relief appellate court decision (Id. at 10-24).
Therefore, the Court will presume that he raises the same issues here that he did before those
courts, to the extent that they relate to his specifically raised grounds, and will expand on
Petitioner’s argument where necessary in accordance with his prior filings.
6

Venireperson 48: Well, yeah.
The State: Okay. Have you already made up your mind that he’s guilty?
Venireperson 48: Pretty much, yeah.
The State: How could you do that, sir, without having heard any of the evidence?
Venireperson 48: Well, I know him - - him and his dad.
The State: Okay. All right. Well, that’s a whole different question.
Venireperson 48: All right. Sorry.
The State: Anybody else here know the defendant? Okay. Got a few hands. All right. And
number 48, you do, too?
Venireperson 48:Yes.
The State: And you know his dad?
Venireperson 48: Uh-huh.
The State: And because you know his dad, you think you don't need to hear any
evidence? You already know he's guilty?
Venireperson 48: Yeah.
The State: Yes?
Venireperson 48: 95 percent chance, yea.
The State: All right. Okay. Thank you, sir.
(Id. at 77-78).
Immediately following the State’s interaction with venireperson 48, the State turned to
venireperson 13 and the following exchange transpired.
The State: All right. Okay. Thank you, sir. Juror number 13, you know the defendant?
Venireperson 13: Yes.
The State: All right. And would you say that you were friends with him or his family
or - Venireperson 13: Yes.
The State: How do you know him?
Venireperson 13: His mom and dad.
The State: Okay. So you know his dad, too?
Venireperson 13: Yeah.
The State: Okay. Are you willing to listen to the evidence to decide whether he’s guilty
or not even though you know his dad, too?
Venireperson 13: I would have to say he’s guilty.
The State: Okay. How could you know, ma’am?
Venireperson 13: Well, we had problems. He was - The State: Wait. Wait. Have you heard any evidence yet?
Venireperson 13: No. But I know - The State: Okay. Do you know what he’s charged with?
Venireperson 13: Drugs.
The State: Okay. So would it be unfair for you to be on this jury?
Venireperson 13: Yeah.
The State: Okay. Yeah. Okay. All right. Thank you. I’ll just stop right there.

7

(Id. at 78-80).
The trial court struck both venireperson 13 and venireperson 48 for cause (Id. at 146147). Trial counsel did not object to or request a mistrial based on these statements. During the
motion court’s evidentiary hearing, counsel testified that she recalled that the other jurors said
they would listen to the evidence and decide the case based on the evidence (Doc. 7-8 at 36).
The motion court determined that the failure of trial counsel to object to or request a
mistrial based on these statements did not deprive Petitioner of a fair trial (Doc. 7-9 at 38).
Specifically, the motion court found that Petitioner failed to demonstrate that he was prejudiced
and that the extraordinary remedy of a mistrial was warranted because “[t]he two venire
members in question were stricken for cause, their statements were not emphasized or repeated
at any phase of the trail, and substantial evidence of [Petitioner’s] guilt was presented a[t] trial”
(Id.). The post-conviction appellate court determined that Petitioner failed to show that he was
prejudiced by trial counsel’s failure to object and seek a mistrial following the statements (Doc.
7-12 at 9). Specifically, the post-conviction appellate court found that “[a]lthough panel
members 13 and 48 made negative statements during voir dire about Riley, these statements
were not so inflammatory and prejudicial as to taint the entire venire panel against Riley and
require a mistrial” (Id.at 10). Therefore, relying on Missouri state law, the post-conviction
appellate court found that Petitioner failed to show a reasonable probability that the trial court
would have granted a mistrial and concluded that there is no reasonable probability that the
outcome of the trial would have been different had trial counsel objected and requested a mistrial
(Id.).
The Missouri Courts reasonably applied Strickland. Relying on Missouri state law, the
post-conviction appellate court concluded that the statements by the venire panel members would

8

not have warranted a mistrial. To the extent Petitioner asserts a challenge to the state court’s
application of state law, that claim is non-cognizable; this Court cannot review the state court’s
interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also
Middleton v. Roper, 455 F.3d 838, 852 (8th Cir. 2006). To the extent Petitioner’s claim touches
on his 6th Amendment right to an impartial jury, a mistrial was not warranted in these
circumstances, where the jurors were stricken for cause, the remaining jurors indicated that they
could decide the case on the evidence before them, and the comments were not emphasized
during voir dire or trial. United States v. Pendleton, 832 F.3d 934, 943 (8th Cir. 2016) (finding
the trial court did not abuse its discretion when it proceeded with the venire panel because the
trial court was in the best position to observe the panel and determined that its questions and
instructions would suffice to protect defendant’s constitutional rights). See also Butler v. United
States, 351 F.2d 14, 17, 19-20 (8th Cir. 1965) (rejecting a defendant’s contention that the court
denied his right to a fair trial when it retained the venire panel and instructed the jury to disregard
a prospective juror’s statement that she worked with victims who suffered “a lot of trouble”
because of the defendant’s actions). Therefore, counsel cannot be found ineffective for failing to
object to and request a mistrial based on these statements. Thomas v. United States, 951 F.2d
902, 904 (8th Cir. 1991) (counsel not ineffective for failure to raise meritless issue).
Accordingly, Ground 1 is denied.
2. Hearsay Testimony
In the portion of Ground 2 not procedurally defaulted, Petitioner asserts trial counsel was
ineffective for failing to object to out-of-court hearsay testimony (Doc. 1 at 5). Petitioner
specifically argues that an objection by counsel would have been sustained by the trial court and,
without the hearsay testimony, a reasonable probability exists that the outcome of the trial would

9

have been different (Doc. 7-9 at 25-27).
During his testimony, Corporal Matt Wilt (“Corporal Wilt”) indicated that the Hannibal
Police Department’s involvement began when an individual later identified as Louis Goodwin
(“Goodwin”) called dispatch to report that he was following a car he believe had been involved
in the theft of anhydrous ammonia (Doc. 7-1 at 178). Corporal Wilt testified that he spoke with
Goodwin after the incident and that Goodwin told him someone in the suspect vehicle threw a
pitcher out of the vehicle, the pitcher struck Goodwin’s vehicle, and the fumes from the
substance in the pitcher burned Goodwin’s face and arm (Id. at 187; Doc. 702 at 11-12).
Corporal Wilt further testified that he did not observe any visible injuries on Goodwin and that
Goodwin refused medical treatment (Doc. 7-1 187-88). Trial counsel did not object to this
testimony.
Officer Jonathan Borgmeyer (“Officer Borgmeyer”) testified that he saw an object
coming over the top of Goodwin’s car, splattering a liquid (Doc. 7-2 at 28). Corporal Wilt
testified that he observed a white film consistent with anhydrous ammonia on the windshield
(Doc. 7-1 at 187; Doc. 7-2 at 13). He took a photograph of the windshield but the substance was
never tested (Doc. 7-1 at 181, 187). Corporal Wilt testified that officers found a pitcher in the
roadway approximately a mile back from where the suspect vehicle was eventually stopped
(Doc. 7-1 at 185, 192-93; Doc. 7-2 at 53-54). Officer Borgmeyer also testified that he saw a cup
being thrown from the suspect vehicle and that he observed smoke or steam coming off the top
of the cup (Doc. 7-2 at 31-32). Additionally, Corporal Wilt testified that saw the cup rolling on
the highway (Doc. 7-2 at 18-19). The cup was never retrieved or taken into evidence (Id. at 32).
In closing, the State mentioned that Goodwin said he got burned when the anhydrous ammonia
hit his car (Doc. 7-2 at 114). Again, trial counsel did not object.

10

The motion court determined that Petitioner was not prejudiced by trial counsel’s failure
to object to the hearsay statements in Corporal Wilt’s testimony because he failed to show a
reasonable probability that the outcome of the proceeding would have been different if the
hearsay had not been admitted because the State presented substantial evidence of Petitioner’s
guilt (Doc. 7-9 at 38). The post-conviction appellate court found that the failure to object to the
hearsay testimony “fell outside the wide range of professional competent assistance” (Doc. 7-12
at 13 (citing Zink v. State, 278 S.W.3d 170, 176 (Mo. 2009) (en banc)). However, the postconviction court found that Petitioner failed to establish prejudice because of the inadequate
performance (Id.). Specifically, the post-conviction appellate court found no other testimony
supported Goodwin’s assertions that he was burned by the liquid in the pitcher or that the liquid
in the pitcher smelled like ammonia (Id. at 14). Indeed, the post-conviction court noted that
Corporal Wilt testified that he did not see any visible burns on Goodwin (Id.). Further, the postconviction appellate court found there to be “substantial other evidence establishing the factual
underpinnings of [Petitioner’s] conviction” (Id.). In doing so, the post-conviction court noted:
(1) Officer Borgmeyer testified that he witnessed an object come off the top of Goodwin’s
vehicle, splatter liquid, and fall to the highway; (2) a broken pitcher was later recovered at that
location; (3) the State produced evidence of pseudoephedrine pills and Mason jars as well as the
relationship of these items to anhydrous ammonia in the production of methamphetamine; (4) the
strong smell of ammonia noted by Corporal Wilt; (5) the film left on Goodwin’s windshield; and
(6) the cloud of white smoke emanating from the cup (Id.).
The Missouri Courts reasonably applied Strickland. While the courts found that portions
of the testimony were indeed impermissible hearsay and counsel’s deficient performance in
failing to object was not reasonable, they found Petitioner not prejudiced by the error. Even if a

11

petitioner satisfies the performance component of the Strickland analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Strickland, 466 U.S. at 697. To do so, a
petitioner must prove that “there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.” Id. at 669. Indeed, upon the
review of the record, the Court cannot find that the outcome of Petitioner’s trial would have been
any different absent trial counsel’s failure because the State presented substantial evidence of
Petitioner’s guilt including testimony by two officers that items had been thrown from the
vehicle, the recovery of one of the items, a white film on Goodwin’s car, and the smell of
ammonia. The officers also found Mason jars and crushed pseudoephedrine pills in the vehicle
and testified to their relationship to anhydrous ammonia and the production of
methamphetamine. Accordingly, this argument raised in Ground 2 is denied.
III. CONCLUSION
For the reasons stated above, the Court finds that Petitioner is not entitled to federal
habeas relief. Furthermore, Petitioner has failed to make a substantial showing of the denial of a
constitutional right, which requires a demonstration “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right.” Khaimov v.
Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the court will not issue a
certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED, and this action is DISMISSED.

12

IT IS FURTHER ORDERED that a certificate of appealability will not be issued. 28
U.S.C. § 2253.
Dated this 6th day of February, 2018.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

13