Smith v. Villmer

Filing 23

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc.No. 1], is dismissed and denied.IT IS FURTHER ORDERED that no certificate of appealability shall issue.A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 7/20/18. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDDIE SMITH,
Petitioner,
vs.
TOM VILLMER,
Respondent.

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) Case No: 4:15CV767 HEA
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OPINION, MEMORANDUM AND ORDER
Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. §
2254 [Doc. No.1] on May 14, 2015. On July 16, 2015, Respondent filed his
Response to the Court’s Order to Show Cause Why Relief Should Not be Granted
[Doc. No. 10], based upon the Petition filed on May 14, 2015. Pursuant to Rule 8
of the Rules Governing Section 2254 Cases in the United States District Courts,
this Court has determined that there are no issues asserted that give rise to an
evidentiary hearing and therefore one is not warranted. For the reasons explained
below, the Response to the Order to Show Cause Why Relief Should not be
Granted is well taken and the petition will be denied.
Procedural Background

Petitioner was charged with one count of enticement of a minor and one
count of attempted statutory rape in the first degree. The matter was tried and a
jury found Petitioner guilty of both counts.
Thereafter, Petitioner took appeal to the Missouri Court of Appeals. There
he asserted four points of error by the trial court: 1) failure to exclude evidence of
text messages sent to individuals (including messages sent to an officer pretending
to be D.P.) other than D.P. because only the texts sent to D.P. were relevant; 2)
submitting verdict directors that allowed the jury to find him guilty based on
messages sent to an officer pretending to be D.P.; 3) overruling his objections to
the admission of the text messages and D.P.’s cell phone because an inadequate
foundation had been laid and the messages had been tampered with by deleting
certain messages; and 4) denying Smith’s motions for continuance. There was no
assertion of a due process violation, or that the deletion of certain text messages
represented the destruction of exculpatory evidence related to the claim of
inadmissibility of the text messages. The Missouri Court of Appeals affirmed the
conviction for enticement of a child. It, however, reversed the conviction for
attempted statutory rape in the first degree, concluding that the evidence only
supported the lesser-included offense of statutory rape in the second degree. The
case was remanded for resentencing on the lesser-included offense of statutory
rape in the second degree.
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The relevant amended State post-conviction motion filed by Petitioner
pursues three claims: 1) trial counsel was ineffective for failing to allege that
Petitioner’s conviction for both offenses violated the Double Jeopardy Clause; 2)
appellate counsel was ineffective for not challenging the denial of the motion to
suppress evidence and motion to suppress statements on direct appeal; and 3) trial
counsel was ineffective for advising Smith to waive his right to jury sentencing
after the remand of the attempted statutory rape count for resentencing. Curiously
enough, Petitioner did not assert any claim that trial or appellate counsel was
ineffective for not presenting evidence in support of an entrapment defense. On
appeal of the unfavorable post-conviction motion ruling it was only alleged that
trial counsel was ineffective for not raising the double jeopardy issue and that
appellate counsel was ineffective for not challenging the denial of the motion to
suppress.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §
2254 (“AEDPA”) applies to all petitions for habeas relief filed by state prisoners
after the statute’s effective date of April 24, 1996. When reviewing a claim that
has been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a state court shall not be granted
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with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim —
(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).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
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 U.S. Supreme Court] on a question of law or if the state court
decides a case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the ‘unreasonable
application’ clause, a federal habeas court may grant the writ if the
state court identifies the correct governing legal principle from [the
U.S. Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “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.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
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law as determined by the Supreme Court of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
A decision is contrary to United States Supreme Court precedent if it
decides a case based on a different rule of law than the rule dictated by United
States Supreme Court precedent, or it decides a case differently than the United
States Supreme Court did on materially indistinguishable facts. Id. A decision may
only be overturned, as an unreasonable application of clearly established United
States Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct and this presumption can only be
rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Statute of Limitations
Congress provides a one-year window in which a habeas applicant can file a
petition for writ of habeas corpus. That window opens at the conclusion of direct
review. The window closes a year later. Failure to file within that one year
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window requires the court to dismiss the petition for writ of habeas corpus. 28
U.S.C. §2244(d) (1) (A); See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir.),
cert. denied, 540 U.S. 971 (2003). If an inmate does not seek a writ of certiorari on
direct review, direct review concludes when the time limit for seeking further
review expires. Gonzales v. Thaler, 132 S. Ct. 641, 653-54 (2012). Under Missouri
Supreme Court Rule 30.01, Rule 30.03, Rule 81.04, and Rule 81.08, the time limit
for filing a notice of appeal is ten days after sentencing.
Procedural Default
Before presenting a claim in a federal habeas petition, a petitioner must first
properly exhaust state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies,
an offender must fairly present the “substance” of the claim to the state courts.
Anderson v. Harless, 459 U.S. 4, 6 (1982). The offender’s federal court claim must
assert the same factual and legal basis as the state court claim. Flieger v. Delo, 16
F.3d 878, 885 (8th Cir. 1996); see also King v. Kemna, 266 F.3d 816, 821 (8th Cir.
banc 2001). To exhaust a claim, the offender must raise the claim on direct appeal
or in state post-conviction proceedings, including on post-conviction appeal.
Flieger, 16 F.3d at 885; see also Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006);
Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005); Lowe-Bey v. Groose, 28
F.3d 816, 818 (8th Cir. 1994).

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When a petitioner has not properly exhausted state remedies on a claim and
the time for doing so has expired, he has procedurally defaulted that claim. Welch
v. Lund, 616 F.3d 756, 758 (8th Cir. 2010). In this situation, the federal court
should not review the claim unless the petitioner can show “cause and prejudice”
excusing that procedural default. Id. at 760.
Under Missouri law, claims of trial court error must be raised on direct
appeal, and may not be raised in a post-conviction motion (other than as claims of
ineffective assistance of counsel. Zink v. State, 278 S.W.3d 170, 191 (Mo. banc
2009); Seibert v. State, 184 S.W.3d 624, 629 (Mo. App. S.D. 2006). A full review
of the record before this court demonstrates the only claim of error that Petitioner
presented on appeal is his claim that the trial court erred in admitting copies of the
text messages because the State failed to provide adequate assurances that the
copies were accurate.
If an inmate attempts to assert a defaulted claim of trial court error, he may
not allege “cause” excusing that default based on ineffective assistance of counsel
if he did not assert a claim of ineffective assistance of counsel in state court unless
he has cause to excuse the default of the ineffective assistance of counsel claim.
Edwards v. Carpenter, 529 U.S. 446, 450-54 (1999); see also Fields v. Roper, 448
F.Supp.2d 1113, 1117 (E.D. Mo. 2006).

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Here, Petitioner set out claims relating to the failure of the court to instruct
on entrapment or that trial counsel was ineffective in not asserting the claim. This
issue was not raised at trial. This issue was not raised as part of Petitioner’s appeal.
The record is without any reference to this issue of entrapment until the filing of
this Habeas Corpus action. The fact that it is so nebulous and unintelligible as
drafted in the filings before this Court may provide some insight as to its lack of
mention before now. As Respondent poignantly points out, it could be a claim of
counsel as ineffective for failing to introduce evidence to support a defense of
entrapment or counsel failing to request that the trial court instruct on entrapment.
In either case it is wholly speculative on the part of the Court as to the basis for any
such claim. Additionally, it is not the function of this Court to construct or divine
the nature of claims Petitioner may present. The point is denied.
There is also a claim that appellate counsel was ineffective for not briefing
the point of error by the trial court in not submitting an entrapment defense
instruction to the jury. The Court agrees with Respondent in assessment of this
possible claim. The record belies the existence of any evidence in support of such
an instruction submission. There is no evidence in the record of Petitioner taking
on the burden of injecting the issue at trial. There certainly is no evidence
supporting that the government induced him to commit an unlawful act and an
unwillingness on his part to engage in such acts. State v. Moore, 904 S. W. 2d 365
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(Mo. App. E. D. 1995). Petitioner did not testify and there was no alternative
source of any evidence relating to a theory of entrapment. Considering this,
Petitioner has plainly failed to show cause excusing his default of any claims of
trial court error related to the submission of an instruction on entrapment.
The point is denied.
Petitioner argues that the instructions were improper as the evidence was
insufficient to support his conviction on the charges. The Missouri Court of
Appeals concluded otherwise and found that the instructions given in the case were
proper as to the charge of enticement of a child and proper as to the attempted
statutory rape except that the evidence only supported the charge of statutory rape
in the second degree. As Respondent succinctly points out, it is clear through
Jackson v. Virginia, 443 U.S. 307 (1978), evidence is sufficient if, taking the
evidence in the light most favorable to the State, a reasonable finder of fact could
determine that the defendant was guilty. 443 U.S. at 318-20, 325-26. Jackson did
note, however, that the elements of the offense are a matter of state law. 443 U.S.
at 324 n.16. Under McDaniel v. Brown, 558 U.S. 120 (2009), the Jackson standard
requires that, when faced with conflicting evidence, the reviewing court must
assume that the trier of fact resolved those issues in favor of the prosecution and
defer to that resolution. 558 U.S. at 133. It is the responsibility of the jury, not a

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reviewing appellate or habeas court, to determine what conclusions to draw from
the evidence. Cavazos v. Smith, 132 S. Ct. 2, 4 (2011).
There is also the claim by Petitioner, which was not raised on appeal, that
his statements were involuntarily made. The trial court found that the statements
were voluntary and admissible. The Missouri Court of Appeals found that vague
statements about Petitioner’s circumstances in relation to statements he might
make were not promises of leniency that rendered Smith’s confessions involuntary.
The Appeals court further noted because Petitioner’s challenges to the admission
of his statements were meritless, appellate counsel was not ineffective for not
challenging the voluntariness of his confession on appeal.
Nowhere does Petitioner state any basis for his statement regarding the
illegality of the interrogation. On post-conviction appeal he claimed that his
statements were not voluntary because they were induced by promises of leniency.
Statements that prosecutors and judges will be lenient to those who tell the truth
and cooperate is not a promise of leniency that transforms an otherwise voluntary
statement into an involuntary statement. See, e.g., State v. Nicklasson, 967 S.W.2d
596, 606 (Mo. 1998). This is not an unreasonable application of established federal
law. See, e.g., Williams v. Norris, 576 F.3d 850, 867-69 (8th Cir. 2009); Simmons
v. Bowersox, 235 F.3d 1124, 1133 (8th Cir. 2001).
This claim is denied.
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Petitioner asserts a claim that was presented on direct appeal that the trial
court erred in admitting copies of text messages because the State failed to provide
adequate assurances that the copies were accurate. On appeal the Missouri Court of
Appeals concluded that the fact that some text messages had been deleted from the
cell phone did not alter the admissibility of the cell phone itself or the undeleted
text messages.
Pursuant to 28 U.S.C. §2254(d) the reviewing Court is deferential in its
consideration of the state court decision unless that decision was contrary to or
involved an unreasonable application of federal law as determined by the United
States Supreme Court, or involved an unreasonable determination of facts. Rules of
evidence are a matter of state law, not a matter of constitutional significance. There
must be a due process violation. The evidence can only qualify as a due process
violation if it is “so egregious that [it] fatally infected the proceedings and rendered
his entire trial fundamentally unfair.” Anderson v. Goeke, 44 F.3d 675, 679 (8th
Cir. 1995). The record in this case is devoid of any evidence even remotely
suggestive of a due process violation. This claim is denied. The ruling is the same,
and for the same reasons, regarding the claim relating to the sufficiency of the
foundation for the introduction of text messages into evidence.
Conclusion

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The record provided the Court demonstrates that the claims asserted by
Petitioner are either procedurally defaulted or are without merit as they are claims
properly decided by the Missouri state courts and are not constitutionally infirm in
their resolution.
Based upon the foregoing discussion and analysis the Petition for Writ of
Habeas Corpus must be denied.
Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it
“must issue or deny a certificate of appealability.” R. Governing Section 2254
Cases in the U.S. Dist. Cts., R. 11. If a federal court denies a habeas application on
procedural grounds without reaching the underlying constitutional claims, the court
should issue a certificate of appealability if the prisoner has shown “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the district
court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.; see also Khaimov v. Crist,
297 F.3d 783, 786 (8th Cir. 2002) (interpreting Slack in the following manner: “1)
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if the claim is clearly procedurally defaulted, the certificate should not be issued;
2) even if the procedural default is not clear, if there is no merit to the substantive
constitutional claims, the certificate should not be issued; but, 3) if the procedural
default is not clear and the substantive constitutional claims are debatable among
jurists of reason, the certificate should be granted”). Petitioner’s federal habeas
petition is clearly time-barred under AEDPA, and no reasonable jurist could that
find this case is timely filed. See Slack, 529 U.S. at 484; Khaimov, 297 F.3d at 786
Hence, no certificate of appealability will be issued.
Accordingly
IT IS HEREBY ORDERED that the Petition for Writ of Habeas
Corpus, [Doc.No. 1], is dismissed and denied.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
A separate judgment in accordance with this Opinion, Memorandum and Order
is entered this same date.
Dated this 20th day of July, 2018.

______________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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