Jones v. Steele

Filing 14

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioners Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal w ill accompany this Memorandum and Order. IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).. Signed by District Judge Jean C. Hamilton on 9/28/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JEROME JONES,
Petitioner,
vs.
TROY STEELE,
Respondent.

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Case No. 4:15CV475 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Jerome Jones’ pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The motion is fully briefed and ready for
disposition.
On November 13, 2009, a jury in the Circuit Court of St. Louis City, Missouri, found
Petitioner guilty of two counts of murder in the first degree, one count of robbery in the first degree,
one count of assault in the first degree, and four counts of armed criminal action. On December 18,
2009, Petitioner was sentenced to life imprisonment without the possibility of probation or parole on
each of the murder counts, life imprisonment on both the robbery and assault counts, and thirty years
imprisonment on each of the armed criminal action counts, with all sentences to run concurrently.
The Missouri Court of Appeals affirmed the convictions and sentence. State v. Jones, 329 S.W.3d
405 (Mo. App. 2011). Petitioner thereafter filed a motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. The
Missouri Court of Appeals affirmed the denial of post-conviction relief. Jones v. State, 436 S.W.3d
244 (Mo. App. 2014).

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Petitioner is currently incarcerated at the Potosi Correctional Center in Mineral Point,
Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following two claims
for relief:
(1)

That Petitioner received ineffective assistance of counsel, in that trial counsel
failed to challenge the race-neutral reasons offered by the State as grounds for
peremptorily striking three African-American venirepersons; and

(2)

That the trial court erred in overruling Petitioner’s objection to the State’s use
of a bank robbery hypothetical to explain the principle of accomplice liability
to the venire panel during voir dire.

.
The Court will address the claims in turn.
DISCUSSION
I.

Ground 1
As stated above, in Ground 1 of his petition Petitioner asserts he received ineffective

assistance of counsel, in that trial counsel failed to challenge the race-neutral reasons offered by the
State as grounds for peremptorily striking three African-American venirepersons. (§ 2254 Petition,
PP. 6-7). Petitioner raised this claim before the 29.15 post-conviction motion court, and the court
denied the claim as follows:
2.
In order to establish ineffective assistance of counsel, a movant must establish that:
1) his counsel did not demonstrate the customary skill and diligence that a reasonably
competent attorney would have provided under the circumstances; and 2) that he was thereby
prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct,. 2052, 80 L.Ed.2d 674
(1984); Williams v. State, 168 S.W.3d 433, 439 (Mo.banc 2005); Wilkes v. State, 82 S.W.3d
925, 927 (Mo.banc 2002). If movant fails to satisfy either prong of the test the other need not
be considered. Buckner v. State, 35 S.W.3d 417, 420 (Mo.App.W.D. 2000). Movant must
overcome a strong presumption that counsel’s conduct was reasonable and effective to meet
the first prong of the Strickland test. Zink v. State, 278 S.W.3d 170, 176 (Mo. 2009). If it is
easier to dispose of the ineffectiveness claim on the ground of lack of sufficient prejudice
that course should be followed. Demonstrating that the alleged error had some conceivable
effect on the outcome of the trial is not sufficient. Strong v. State, 263 S.W.3d 636, 647
(Mo. banc 2008). To demonstrate prejudice movant must establish that but for counsel’s
error there is a reasonable probability that the outcome of the proceeding would have been
different. Wilkes, supra; Sidebottom v. State, 781 S.W.2d 791, 796 (Mo.banc 1989).
Movant faces a heavy burden in establishing a claim for ineffective assistance of counsel.
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Not only must the movant prove his or her allegations by a preponderance of the evidence,
but the movant must overcome the court’s presumption that counsel is competent. Yoakum
v. State, 829 S.W.2d 685, 687 (Mo.App. 1993)….
4.
Movant’s1 final allegation is that his trial counsel was ineffective for failing to
challenge the State’s reasons for its peremptory strikes of the African-American venire
women Sarah Petty, Kenora Dailey and LaToya Foster as pretexts for racial discrimination.
(Tr. 196, 198-99). Trial counsel challenged all three women pursuant to Batson v. Kentucky.
Movant states that a crucial fact a trial court should consider is whether there are similarly
situated jurors of a different race whom the prosecutor did not strike. State v. Weaver, 912
S.W.2d 499, 509 (Mo. banc 1995). Additionally, the trial court must consider the degree of
logical relevance between the proffered reasons and the case on trial, the prosecutor’s
credibility based on the prosecutor’s statements during voir dire and the court’s past
experiences with that prosecutor, and the demeanor of the excluded jurors. State v. Johnson,
220 S.W.3d 377, 388 (Mo.App.E.D. 2007). Movant states that trial counsel did not respond
to the State’s reasons for peremptorily striking venire women Petty and Dailey and responded
only to the State’s reasons for peremptorily striking venire woman Foster by saying he did
not see her make any faces at Ms. Orwick, the prosecuting attorney. (Tr. 201) Movant
alleges that although trial counsel later timely filed a new trial motion alleging the trial
court’s decision to overrule his Batson challenges was error, and appellate counsel raised the
assignment of error on appeal to the Court of Appeals, the appellate court declined [to]
review the error. The Court of Appeals found that the failure to challenge the state’s race
neutral explanations for its peremptory strikes waived the Batson challenge and preserved
nothing for appeal. State v. Washington, 288 S.W.3d 312, 317 (Mo.App.E.D. 2009) (quoting
State v. Taylor, 944 S.W.2d 925, 934 (Mo.banc 1997)). If the defendant fails to challenge
the state’s explanation of the peremptory strike as a pretext and simply relies on general or
conclusory allegations about the state’s reasoning, no effective Batson challenge has been
made, and nothing is preserved for appeal. State v. Williams, 24 S.W.3d 101, 121
(Mo.App.W.D. 2000).
This Court finds that this allegation is without merit and denied. Claims that trial
counsel was ineffective for failing to raise a Batson challenge at trial are cognizable in a Rule
29.15 motion. In a proper case failure to object to improper jury selections methods could
constitute ineffective assistance affecting the fairness of a criminal trial. State v. Scott, 183
S.W.3d 244, 247-48 (Mo.App.E.D. 2005). However, it is well-settled that post-conviction
relief based on ineffective assistance of counsel is limited to errors which prejudiced a
movant by denying that movant the right to a fair trial. If it is easier to dispose of an
ineffective assistance claim on the ground of lack of sufficient prejudice that course should
be followed. To satisfy the prejudice prong of the Strickland analysis a movant must show
there is a reasonable probability that but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Demonstrating that the alleged error had some
conceivable effect on the outcome of the trial is not sufficient. In order to avail himself of a
1 Petitioner is referred to as “Movant” by both the 29.15 post-conviction motion court and the Missouri Court of
Appeals.

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presumption of prejudice movant must establish that the errors complained of resulted in a
trial by a jury that was not fair and impartial. Strong v. State, supra at 647 citing Strickland,
supra. A movant is entitled to a presumption of prejudice resulting from counsel’s
ineffective assistance during the jury selection process only if the movant can show that a
biased venireperson ultimately served on the jury. Strong, citing State v. Scott, supra; State
v. Colbert, 949 S.W.2d 932, 944 (Mo.App. 1997). There has been no allegation that biased
venirepersons ultimately served on the jury in the instant case. As the Missouri Supreme
Court observed in Strong at 648, at most Movant could only demonstrate that qualified
venirepersons were excluded from the jury. Accordingly, this allegation is without merit and
denied. This Court also notes that failure to preserve error for appellate review is not
cognizable in a Rule 29.15 motion. Strong, at 646.
(Resp.’s Exh. F, PP.60-61, 73-76). Petitioner advanced the claim on appeal of the denial of his Rule
29.15 motion, and the Missouri Court of Appeals denied the claim as follows:
In the course of selecting the jury, the State used its peremptory strikes to remove
three African American women from the panel. Movant’s trial counsel challenged those
strikes pursuant to Batson v. Kentucky.2 The State then offered explanations for why the
strikes were race neutral. For each strike, the trial court asked counsel if he had a response to
the State’s explanation. The only response given by trial counsel addressed the State’s
allegation that one of the reasons it struck juror 912 was because she gave the prosecutors
antagonistic looks. Trial counsel stated he did not see the juror “make…faces” at the
prosecutors. The State then identified a similarly-situated venireperson who was also
stricken because of her antagonistic attitude. The trial court overruled Movant’s three Batson
challenges….
In his first point on appeal, Movant contends the motion court clearly erred in
denying his claim without an evidentiary hearing in that trial counsel was ineffective for
failing to respond to the State’s alleged Batson violations during voir dire. Specifically,
Movant argues his counsel failed to challenge the State’s race-neutral reasons for its
peremptory strikes of three African American venire members as pretexts for racial
discrimination. We disagree.
A “claim[] that trial counsel was ineffective for failing to raise a Batson challenge at
trial [is] cognizable in a Rule 29.15 motion.” Scott v. State, 183 S.W.3d 244, 247 (Mo. App.
E.D. 2005); Strong, 263 S.W.3d at 646. This Court has previously found that “[f]ailure to
object to improper jury selection methods could in a proper case constitute ineffective
assistance of counsel affecting the fairness of a criminal trial.” Scott, 183 S.W.3d at 247-48;
Kirk v. State, 778 S.W.2d 661, 662 (Mo. App. E.D. 1989).
The use of peremptory strikes of venirepersons on the basis of race is
unconstitutional. Batson v. Kentucky, 476 U.S. 79, 106 (1986). A successful Batson
challenge requires compliance with the following procedure:
2 Batson v. Kentucky, 476 U.S. 79 (1986).

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First, a defendant must challenge one or more specific venirepersons struck
by the State and identify the cognizable racial group to which they belong.
Second, the State must provide a race-neutral reason that is more than an
unsubstantiated denial of discriminatory purpose. Third, the defense must
show that the State’s explanation was pretextual and the true reason for the
strike was racial.
State v. McFadden, 191 S.W.3d 648, 651 (Mo. banc 2006) (footnotes omitted); Johnson, 406
S.W.3d at 906-07.
Here, the State used peremptory strikes to remove three African American
venirepersons. Trial counsel raised Batson challenges to those strikes. The State then gave
explanations as to why its strikes were race-neutral. The State provided three separate
reasons for striking juror 912. The only response trial counsel offered to the State’s
explanations was that he did not see the venireperson make faces at the prosecutors as
alleged. The State replied that it struck a similarly-situated venireperson for her antagonistic
attitude. The trial court overruled Movant’s Batson challenges.
On direct appeal, Movant asserted the trial court’s decision to overrule his Batson
challenges constituted error. This Court declined to review Movant’s claim because the
failure to challenge the State’s race-neutral explanations during voir dire waived the Batson
challenges and preserved nothing for appeal. Movant then filed a Rule 29.15 motion for
post-conviction relief asserting trial counsel was ineffective for failing to challenge the
State’s race-neutral explanations as pretextual.
Even assuming trial counsel’s failure to challenge the State’s race-neutral
explanations was constitutionally deficient performance, we find Movant’s allegations that
counsel’s performance prejudiced him to be without merit. First, Movant argues he was
prejudiced because had counsel properly challenged the State’s race-neutral explanations, it
was reasonably probable the trial court would have sustained Movant’s Batson challenges,
the three stricken venirepersons would have served on the jury, and the jury would have
acquitted Movant or convicted him of lesser-included offenses. Movant’s contention
suggests that if selected for the jury, a venireperson−merely on the basis of her race−would
acquit Movant or convict him of a lesser-included offense. As noted by our supreme court,
“[t]his allegation is to engage, at best, in mere speculation and, at worst, in the stereotyping
that Batson and its progeny strive to prevent.” Johnson, 406 S.W.3d at 908 (quotation
omitted).
Movant alternately argues he was prejudiced because if trial counsel had properly
challenged the State’s race-neutral explanations and the trial court had overruled Movant’s
Batson objections, there is a reasonable probability the outcome of his appeal would have
been different. Not only does Movant ask us to assume the trial court would have erred by
overruling a meritorious and properly-made Batson objection, but he also asks us to find
prejudice simply because he was precluded his right to appeal. However an ineffective
assistance claim based on failing to object to improper jury selection methods is reviewable
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as long as the movant alleges that counsel’s failure to object affected the fairness of his trial,
as opposed to merely alleging that counsel's inaction precluded his right to appeal.” Scott,
183 S.W.3d at 248. See also Kirk, 778 S.W.2d at 662. Thus, Movant’s claim that counsel’s
inaction prejudiced his ability to appeal his conviction is not cognizable under Rule 29.15.
Kirk, 778 S.W.2d at 662; Strong, 263 S.W.3d at 646 (“The failure to preserve error for
appellate review is not cognizable in a Rule 29.15 motion.”).
Movant also contends we should find a “presumption of prejudice” to satisfy the
second prong of Strickland. He argues trial counsel’s failure to comply with the third step of
Batson constitutes “structural error” entitling him to a presumption of prejudice. Structural
errors are “constitutional deprivations . . . affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499
U.S. 279, 310 (1991). “Counsel’s failure to raise a Batson objection, absent any attempt by
[Movant] to demonstrate that unqualified persons served on the jury, does not amount to a
structural defect that entitles him to a presumption of prejudice.” Strong, 263 S.W.3d at 648.
In addition, “the United States Supreme Court has never found that failure to raise a
meritorious Batson challenge constitutes structural error.” Id. at 648 n.6. Movant does not
assert any biased or otherwise unqualified persons served on the jury and, accordingly, we
find no structural error entitling Movant to a presumption of prejudice. See also Scott, 183
S.W.3d at 248 (“a movant is entitled to a presumption of prejudice resulting from counsel’s
ineffective assistance during the jury selection process only if the movant can show that a
biased venireperson ultimately served on the jury.”).
Thus, Movant does not establish trial counsel’s failure to challenge the State’s raceneutral explanations for its peremptory strikes prejudiced the fairness of his trial. The motion
court did not clearly err in denying Movant’s post-conviction claim. Point one is denied.
(Resp. Exh. I, PP. 4-5, 8-12).
With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in
pertinent part as follows:
(d)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim B
(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 proceeding.
28 U.S.C. § 2254(d).
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Under federal law, in order to prevail on his ineffective assistance of counsel claim,
Petitioner must show that his attorney’s performance was “deficient,” and that the deficient
performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To
overcome this presumption, Petitioner must prove that, “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent assistance.” Id.
Even if Petitioner satisfies the performance component of the analysis, he is not entitled to
relief unless he can prove sufficient prejudice. Id. at 694. To do so, 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. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
Upon consideration the Court finds it unnecessary to consider the reasonableness of counsel’s
conduct, because Petitioner fails to demonstrate the requisite prejudice. See Strickland, 466 U.S. at
697 (“[i]f if it easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”). Petitioner here
makes no effort to demonstrate that the results of his proceeding would have been different, had
venirepersons Petty, Dailey and Foster not been stricken. Furthermore, an alleged failure adequately
to pursue a Batson challenge is not a “‘structural defect’ which is presumptively prejudicial.” Young
v. Bowersox, 161 F.3d 1159, 1160-61 (8th Cir. 1998), cert. denied, 528 U.S. 880 (1999). As such, the
decision of the state courts is supported by the evidence and in accord with federal law. Johnson v.
Luebbers, Case No. 4:07CV690 CDP, 2009 WL 415539, at *8 (E.D. Mo. Feb. 18, 2009). Ground 1
of Petitioner’s § 2254 petition must therefore be denied.
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B.

Ground 2

As stated above, in Ground 2 of his petition Petitioner asserts that the trial court erred in
overruling Petitioner’s objection to the State’s use of a bank robbery hypothetical to explain the
principle of accomplice liability to the venire panel during voir dire. (§ 2254 Petition, PP. 7-9).
Petitioner raised this claim on direct appeal of his convictions, and the Missouri Court of Appeals
denied the claim as follows:
For his second point, defendant3 contends that the trial court plainly erred in
overruling his objection to the state’s use of a bank robbery hypothetical during voir dire to
illustrate accomplice liability because the jurors could not use accessory liability to find
defendant guilty of first degree murder. Defendant concedes that he failed to preserve this
point for review because he did not raise this argument in his motion for new trial. Rule
29.11(d); State v. McLaughlin, 265 S.W.3d 257, 273-74 (Mo. banc 2008).
During voir dire, the state proposed a hypothetical bank robbery to the panel to
determine whether any venireperson had a potential bias about accomplice liability. The
state offered the following:
MS. ORWICK:
Now two of the counts in this case are robbery in the
first degree and—and assault in the first degree as you heard yesterday. Now
accomplice liability in Missouri or acting with another person basically
means, that a Defendant when he works with another person to commit a
crime is just as culpable or just as responsible as that other person for
committing that crime. Now for example, I started to give you this example
yesterday. And again, this example has nothing to do with this case. Let me
stress that. But in this case of a bank robbery, let’s say there are two men
involved. And let’s say that one man goes inside and actually takes the
money and announces the robbery. But then he runs outside and there’s a
person waiting for him in a getaway car. So even though that man was in the
get away car, was not involved in the things that happened inside, he is just as
responsible for what happened inside that bank and for taking that money as
he drove the other man away. They had a plan to make this happen. And
they implemented that plan. And they worked together to make that happen.
Does that make sense to everybody? I see lots of people shaking their heads,
yes. And even some people saying uh-huh. Well, like I said, that example
has nothing to do with this case but it’s an important principle of the law that
you will hear about throughout this case. Is there anyone here now hearing
that example and knowing the law, who disagrees with it? Who thinks, you
know what, that’s just not fair and I cannot follow the Court’s Instruction if it
3 Petitioner is referred to as “defendant” by the Missouri Court of Appeals.

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instructs me on accomplice liability or acting with another?
Because defendant did not preserve this error, our review, if any, is only for plain
error. Rule 30.20. We will not review a claim of plain error under Rule 30.20 unless there
are substantial grounds for believing that manifest injustice or miscarriage of justice has
resulted. State v. Chaney, 967 S.W.2d 47, 59 (Mo. banc 1998), cert. denied, 525 U.S. 1021
(1998). There are no extraordinary circumstances in this case to justify reviewing this
argument as a matter of plain error. State v. Mosley, 980 S.W.2d 1, 3 (Mo.App. 1998). See
State v. Gill, 167 S.W.3d 184, 192 (Mo. banc 2005); State v. Cummings, 134 S.W.3d 94,
107-10 (Mo.App. 2004). Point two is denied.
(Resp. Exh. E, PP. 6-7).
As noted above, with respect to federal court review of state court conclusions, 28 U.S.C. §
2254 states in pertinent part as follows:
(d)
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim B
(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 proceeding.
28 U.S.C. § 2254(d).
“Under federal law, to establish a violation of due process based on [prosecutorial
commentary], a habeas petitioner must show that the prosecutor’s remarks were so egregious that
they fatally infected the proceedings and rendered Petitioner’s entire trial fundamentally unfair.”
Jones v. Wallace, Case No. 4:13CV1606 NCC, 2016 WL 3947745, at *6 (E.D. Mo. Jul. 14, 2016)
(citations omitted). “A habeas petitioner can meet this burden only by showing that, absent the
prosecutor’s statement, there is a reasonable probability that the jury would have returned a different
verdict.” Id. (citation omitted). “The relevant question is whether the prosecutor[’]s comments so
infected the trial with unfairness as to make the resulting conviction a denial of due process.”
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Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotations and citation omitted).
The Eighth Circuit “has established a two-part test for reversible prosecutorial misconduct:
(1) the prosecutor’s remarks or conduct must have been improper, and (2) such remarks or conduct
must have prejudicially affected the defendant’s substantial rights so as to deprive the defendant of a
fair trial.” United States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003) (citations omitted). It further
employs “the following three factors to determine the prejudicial effect of prosecutorial misconduct:
‘(1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of
the defendant’s guilt; and (3) the curative actions taken by the court.’” Id. (quoting United States v.
Hernandez, 779 F.2d 456, 460 (8th Cir. 1985)).
Upon consideration of the foregoing, the Court finds the state court’s ruling is entitled to
deference. In other words, even assuming the prosecutor’s challenged hypothetical was improper,
“there was no denial of Petitioner’s right to due process or a fair trial based on the weight of the
evidence against Petitioner and the instructions the trial court gave the jury.” Roberts v. Griffith,
Case No. 4:13CV2510 SNLJ/PLC, 2017 WL 2609095, at *15 (E.D. Mo. Mar. 31, 2017). Ground 2
is denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are
DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum and
Order.

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IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of
the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).

Dated this 28th Day of September, 2017.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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