Starkey v. Spackler

Filing 2

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DENIED, and this action is DISMISSED IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A Judgment will be filed separately.. Signed by District Judge Rodney W. Sippel on 5/11/15. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARK A. STARKEY,

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Petitioner,
v.
HEATH SPACKLER,
Respondent,

No. 4:15CV728 RWS

MEMORANDUM AND ORDER
Mark Starkey petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. All of the grounds raised in the petition are wholly frivolous. As a result, I will dismiss
this action without further proceedings. See 28 U.S.C. § 2254, Rule 4.
Background
The Court takes the facts of this case from the Missouri Court of Appeals:
[Starkey] was married to Joanna Wilson (“Joanna”) for twenty-one years, during
which time they lived in Texas. Joanna left Texas in late 2007 or early 2008 and
moved to St. Louis. She traveled back and forth from St. Louis to her hometown
of Poplar Bluff and reestablished a relationship with Rodney Barker (“Barker”),
who had known Joanna in high school. Joanna and Barker were having an affair.
[Starkey] and Joanna eventually divorced.
In January 2008, [Starkey] called Barker and asked Barker to describe his sexual
relationship with Joanna. Barker told [Starkey] not to call him anymore, but
[Starkey] kept calling. The frequency of [Starkey]'s calls increased to the point of
approximately forty phone calls within a twenty-four-hour time period. [Starkey]
left messages on Barker's answering machine, yelling and using vulgar language.
[Starkey] threatened to blow Barker's head off, and threatened to send people to
rape Barker's grandchildren. Barker also received letters from [Starkey] with
pornographic photographs and vulgar language. Barker complained to the police
in February and April 2008.
Stalking the Prosecutors
The prosecuting attorney of Butler County, Kevin Barbour (“Prosecutor”), and his
office filed charges of aggravated stalking against [Starkey]. Judge John

Bloodworth (“Judge Bloodworth”) signed a warrant for [Starkey]'s arrest. He later
recused himself at the request of [Starkey] and defense counsel because he went
to high school with Barker, but did not socialize with him or know where Barker
lived. Judge Bloodworth has a practice of disclosing the relationship if he knows a
party to the case, and recusing if he is requested to do so.
In May 2008, [Starkey] was arrested in Texas on the aggravated stalking charges
involving Barker, but was placed on a twenty-four hour hold and was then
released on bond. The charges were dismissed after a preliminary hearing. An
assistant prosecuting attorney for Butler County, Paul Oesterreicher (“Asst.
Prosecutor”), handled the preliminary hearing. The charges were re-filed in
October 2008. Judge Bloodworth signed the warrant. [Starkey] was arrested
again, and again, was released on bond.
In October 2008, the Prosecutor's Office began receiving calls from [Starkey].
Kendra Hampton Gore (“Gore”), the receptionist, generally took the calls, but
Cheryl Link (“Link”), the Prosecutor's secretary, also answered the phone.
[Starkey] identified himself as “Mark Starkey” and Gore could recognize his
voice on calls thereafter. Link also answered calls from [Starkey], who identified
himself. [Starkey] would ask to speak with Prosecutor or Asst. Prosecutor, but the
receptionist would take a message rather than putting the calls through. [Starkey]
used vulgar language toward the staff. The secretaries began keeping a log of the
calls, including calls on November 15, 17, 18, 21, and 24, 2008. On November
24, 2008, [Starkey] stated that if Prosecutor did not call off the warrants and if the
judge did not get off his back, he was going to blow up the building. Link told
Prosecutor and Asst. Prosecutor about the call. On the same day, less than ten
minutes later, Gore took a call in which [Starkey] said to “tell [Prosecutor] and
[Asst. Prosecutor] to report themselves now” or they would be killed. He also
used vulgar language. Gore communicated the message to Prosecutor and Asst.
Prosecutor. Within the same hour, [Starkey] called Link again, regarding “getting
ready to take a magic carpet ride out of this world,” and then [Starkey] hung up
the phone. Link decided to try to record as many of the calls as she could. One
such call stated “somebody” would get killed.
In addition to the phone calls, the Butler County Prosecuting Attorney's Office
received numerous faxes, totaling seventy-two pages, from one Texas phone
number, (903)432–4332, from October 27 through November 21, 2008. Some had
[Starkey]'s name in them. Asst. Prosecutor was aware of all of the faxes, some of
which he pulled off the fax machine himself. In the faxes, [Starkey] claimed the
proceedings against him were unlawful, that Prosecutor, Asst. Prosecutor, and
Judge Bloodworth were perpetrating a fraud and should report themselves to
federal authorities and go to jail, and the case should be dismissed. Some faxes
took issue with Judge Bloodworth's jurisdiction and involvement in the case.
[Starkey]'s demands were in letter form or “press release” form rather than legal
pleadings. One fax referred to the saying, “don't mess with Texas,” while others
used profanity and warned, “Gonna be a tough week boys . . .,” referring to
hillbilly lawyers. Link observed the faxes all came from the same area code and

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collected them in a file folder. She kept Prosecutor and Asst. Prosecutor informed
on the matter.
Asst. Prosecutor also received two copies of a letter containing partially nude
photographs of Joanna and referring to “devil play” in two separate envelopes
addressed to Asst. Prosecutor's wife. The envelopes had return address labels with
Barker's name and address. The same copies were sent in envelopes to the
Prosecutor's Office, Prosecutor's wife at their home address, Judge Bloodworth
and his wife separately, and the courthouse.
Asst. Prosecutor's family received at least one message on their answering
machine. Asst. Prosecutor was concerned that [Starkey] had managed to find his
address and home phone number, and was aware of the calls containing
[Starkey]'s threats to kill him. He made arrangements for his children to stay with
his in-laws if he knew that [Starkey] was coming to town.
Prosecutor also was aware of the faxes, letters, and phone calls coming into the
Prosecuting Attorney's Office. He received at least one call at his home as well.
Although he hung up, the phone continued to ring every ten to fifteen minutes all
night long, for six or seven hours. In one phone call, [Starkey] asked questions
about Prosecutor's ex-wife and his father. Prosecutor listened to most of the
recorded calls, including one that stated he would be killed if he didn't call off the
warrants. Prosecutor was aware of the threats to kill him, as well as the threat to
blow up the building. He was “quite concerned” about the threats and kept a gun
close by him in his truck. He gave guns to his wife and son; the son kept the gun
at his own home. Prosecutor also had safety glass and a panic button installed in
his office, he had police officers in his office and escorting him across the street to
the courthouse on occasion. An officer followed Prosecutor all day at court
appearances when he believed [Starkey] was going to appear. Prosecutor thought
[Starkey] seemed very determined and obsessive.
[Starkey] pled guilty to the federal charge of using an instrument of commerce to
threaten to destroy a building by means of an explosive. He was sentenced to ten
months in federal prison.
Stalking Judge Bloodworth
In addition to the communications [Starkey] made with the Prosecuting Attorney's
Office, [Starkey] also called and identified himself to the Butler County Circuit
Clerk's Office clerks on numerous occasions. When he was not transferred to
Judge Bloodworth, he called the clerks vulgar names. [Starkey] sent many faxes
to Judge Bloodworth, one of which purported to be an arrest warrant for Judge
Bloodworth, Prosecutor, and Asst. Prosecutor. Another fax warned, “better buckle
up scum ... gonna be a tough week boys,” also addressing the victims as hillbilly
lawyers. Other faxes referenced Judge Bloodworth's male anatomy as well as his
wife.

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[Starkey] also called Judge Bloodworth's home and left a message on his
answering machine. [Starkey] stated, “There's gonna be a lot of people needing to
go to medical facilities if John Boy Bloodworth don't remove his fraudulent
warrants,” and concluded with profanities. After the call, Judge Bloodworth and
his wife were worried about their family's safety. They had one son, who was
instructed to lock the doors and not to open them until he looked outside to see
who was there. Panic buttons were installed in the circuit clerk's office and staff
was instructed to push the button if [Starkey] came to the window. [Starkey]'s
picture was posted in the clerk's office as well. Judge Bloodworth was aware of
the phone calls, letters and faxes received from [Starkey].
On December 7, 2009, the Missouri Attorney General's Office (“State”), acting as
Special Prosecutor, filed a complaint in the Circuit Court of Butler County,
charging [Starkey] with four counts of aggravated stalking as to Barker,
Prosecutor, Asst. Prosecutor, and Judge Bloodworth, respectively. [Starkey] filed
numerous pro se motions to dismiss the case, including a motion to dismiss for
lack of jurisdiction, or to disqualify the prosecutor, which were subsequently
denied. The trial court granted [Starkey]'s motion for a change of venue to St.
Louis County.
A trial took place from July 25 through 28, 2011, in the Circuit Court of St. Louis
County. [Starkey] filed motions for judgment of acquittal at the close of the
State's evidence and at the close of all of the evidence, which motions were
denied. The jury found [Starkey] guilty of four counts of aggravated stalking, and
the trial court sentenced [Starkey] to consecutive sentences of four years'
imprisonment on each count.
Missouri v. Starkey, 380 S.W.3d 636, 638-41.
Grounds for Relief
In the instant petition, petitioner raises five grounds for relief. First, he argues that the
trial court “lacked jurisdiction over Interstate Commerce and has acted outside its authorized
jurisdictional parameters.” Second, he argues that the state lacked jurisdiction over him because
he was a “foreign resident” living in Texas when the crimes occurred. Third, he argues that
Missouri’s stalking statute was preempted by the “interstate stalking statute.” Fourth, he argues
that the stalking statute he was convicted under had been repealed. Finally, he argues that the
trial court “violated Article IV(c) Interstate Agreement on Detainers.”

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Standard
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).
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).
Discussion
1.

Ground One

In ground one, petitioner argues that the trial court “lacked jurisdiction over Interstate
Commerce and has acted outside its authorized jurisdictional parameters.” Petitioner argues that

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the Commerce Clause of the United States Constitution barred prosecuting him because he was
in Texas when he committed the crimes.
On direct review, the Missouri Court of Appeals cited Revised Statute § 541.191.1(1),
which provides that “This state has jurisdiction over an offense that a person commits by his own
conduct or the conduct of another for which such person is legally accountable if: (1) Conduct
constituting any element of the offense or a result of such conduct occurs within this state.”
Starkey, 380 S.W.3d at 646. The court further stated:
While harassment is the conduct constituting the crime of aggravated stalking, it
is defined as conduct directed at a specific person, and causes that person to be
frightened, intimidated, or emotionally distressed. Section 565.225.3;
565.225.1(3). Thus, the elements of the crime include the conduct that was carried
out by Appellant in Texas as well as the fright, intimidation, or emotional distress
which was intended for and occurred in [Starkey]'s targets in Missouri thereafter.
Moreover, Section 541.191.1(1) does not require that the result be an element of
the offense. The statute requires simply the result of the conduct constituting the
offense occur in Missouri. The evidence on the record clearly shows the results of
[Starkey]'s actions directed toward each of these four individuals for which he
was charged with aggravated stalking occurred in the state of Missouri. The
concern, extra precautions, and overall emotional distress of Barker, Judge
Bloodworth, Prosecutor, and Asst. Prosecutor all took place in Missouri.
Id.
Petitioner’s argument is frivolous. The Commerce Clause does not apply to Missouri’s
jurisdiction over crimes committed within its borders, even if the perpetrator was located in
another state when the crime occurred. Furthermore, the appellate court’s application of the law
was not unreasonable or contrary to clearly established federal law. As a result, petitioner is not
entitled to relief on this ground.
2.

Ground Two

In ground two, petitioner argues that the state lacked jurisdiction over him because he
was a “foreign resident” living in Texas when the crimes occurred.
This ground is duplicative of ground one and is dismissed for the same reasons.

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3.

Ground Three

In ground three, petitioner argues that Missouri’s stalking statute was preempted by the
federal “interstate stalking statute.”
Petitioner’s claim is unsupported. There are no Supreme Court cases holding that the
interstate stalking statute, 18 U.S.C. § 2261A, preempts state criminal statutes. As a result,
petitioner is not entitled to relief on ground three.
4.

Ground Four

In ground four, petitioner argues that the stalking statute he was convicted under had
been repealed.
In discussing this claim, the Missouri Court of Appeals found petitioners argument to be
incorrect and explained the amendment to the statute:
When considering statutory amendments, the court presumes that the legislature
intended to accomplish some purpose, one of which may be to clarify and detail
an existing law. Bank of Urbana v. Wright, 880 S.W.2d 921, 924 (Mo.App.
S.D.1994). The legislature removed from the definition of “credible threat” the
language that it “may include a threat communicated to the targeted person in
writing, including electronic communications, by telephone, or by the posting of a
site or message that is accessible via computer.” Section 565.225.1(2), RSMo
Cum.Supp.2007. It added an element that the target of the threat may fear for the
safety of his family, household members or animals, as well as his own safety.
Section 565.225.1(2). The amended statute clarified that a threat must be against
the life of, or to cause physical injury to, or the kidnapping of, the target victim or
his family, household members, or animals. Section 565.225.1(2). Thus, the
elimination of the language Appellant now contests merely eliminated examples
of what the credible threat may include. The legislature made clear in both
versions of the statute that the form of communication by which a threat may
occur is unlimited. Section 565.225.1(2). The elimination of the example in
Section 565.225.1(2) does not eliminate the telephone, letters, or faxes from the
means by which a credible threat can be made, as Appellant contends.
The threat here was one by which Appellant communicated with intent to cause
Judge Bloodworth to reasonably fear for his safety or the safety of his family,
who was referenced in Appellant's communications. The evidence was sufficient
to submit aggravated stalking of Judge Bloodworth to the jury to find whether
Appellant was guilty beyond a reasonable doubt. Appellant's first point is denied.

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Starkey, 380 S.W.3d at 643-44.
“[I]t is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions. In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); see Poe v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994)
(“Jurisdiction is no exception to the general rule that federal courts will not engage in collateral
review of state court decisions based on state law.”); Watts v. Bonneville, 879 F.2d 685, 687
(9th Cir. 1989) (alleged violation of state sentencing statute not cognizable in federal habeas
proceedings). Furthermore, a state prisoner “may not . . . transform a state-law issue into a
federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380,
1389 (9th Cir. 1996). The claim in ground four refers only to a state court determination of a
matter of state law. It is not cognizable in these proceedings. As a result, petitioner is not
entitled to relief on this ground.
5.

Ground Five

In ground five, petitioner argues that the trial court “violated Article IV(c) Interstate
Agreement on Detainers.”
Under 28 U.S.C. § 2254(a), a district court may only entertain a petition for writ of
habeas corpus if the petitioner “is in custody in violation of the Constitution or laws or treaties of
the United States.” In other words, grounds that do not state a constitutional issue are not
cognizable in a federal habeas petition. E.g. Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir.
1997). Ground five does not allege a constitutional violation. As a result, petitioner is not
entitled to relief on this ground.

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Certificate of Appealability
For these reasons, 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 the petition for writ of habeas corpus is DENIED, and
this action is DISMISSED
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
A Judgment will be filed separately.
Dated this 11th day of May, 2015.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

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