Scott v. Steele
OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, [Doc.No. 1 ], is 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 09/13/2018. (AAS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
) Case No: 4:15CV0793 HEA
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 18, 2015. Respondent filed a Response to the Court’s
Order to Show Cause Why Relief Should Not be Granted [Doc. No. 12] on
September 1, 2015. On November 20, 2015, Petitioner filed his Traverse [Doc.
No.15]. 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.
Petitioner was found guilty by a jury on October 13, 2011 of Statutory Rape
First Degree-Sexual Intercourse with a Person Less Than 12 Years Old and
Statutory Sodomy First Degree-Deviate Sexual Intercourse with a Person Less
Than 12 Years Old. On December 8, 2011, Petitioner was sentenced to two
concurrent thirty year sentences. On December 9, 2011 Petitioner timely filed his
Notice of Appeal.
On appeal to the Missouri Court of Appeals Petitioner asserted the trial court
for the Twenty-First Judicial Circuit, St. Louis County abused its discretion in
admitting the deposition of the victim through the court reporter under RSMo
§491.075. The Missouri Court of Appeals concluded the trial court did not abuse
its discretion as there was substantial evidence in the record supporting the trial
court decision to admit out of court statements pursuant to Section 491.075. The
Missouri Appeals Court also concluded that even if it were error to admit the
deposition of the victim it was not prejudicial as it was not outcome determinative
due to other evidence of Petitioner’s overwhelming guilt.
Petitioner further sought relief by timely filing his motion for postconviction relief pursuant to Rule 29.15, Missouri Rules of Criminal Procedure. In
this motion Petitioner alleged he was the victim of ineffective assistance of counsel
by trial counsel advising him to not testify in his own defense. The trial court
conducted a hearing and denied the relief sought under Rule 29.15.
The ruling by the trial court was timely filed to the Missouri appeals Court.
On March 10, 2015 the Missouri Appeals Court, Eastern District of Missouri,
through its Per Curiam opinion affirmed the ruling of the trial court. The Appeals
Court, applying Strickland v. Washington, 466 U.S. 668 (1984), concluded there
was no error in the trial court’s conclusion that counsel was not ineffective. The
Missouri court further found Petitioner failed to meet his burden of proving
prejudice at the hearing.
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
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
(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
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
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.
One who pursues relief under 28 U.S.C. §2254(b)(1)(A) must have
exhausted the remedies available in the courts of the State. In order to effectuate
the fulfillment of this requirement, “state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process” before presenting those
issues as application for federal habeas relief in federal court. O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). “A federal
habeas petitioner’s claims must rely on the same factual and legal bases relied on
in state court”; otherwise, they are defaulted. Winfield v. Roper, 460 F.3d 1026,
1034 (8th Cir. 2006).
Exhaustion “refers only to remedies still available at the time of the federal
petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28, 102 S. Ct. 1558, 71 L. Ed. 2d
783 (1982). Thus, “if it is clear that [the habeas petitioner’s] claims are now
procedurally barred under [state] law,” the exhaustion requirement is satisfied.
Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 103 L. Ed. 2d 380 (1989).
“[T]he procedural bar that gives rise to exhaustion provides an independent and
adequate state-law ground for the conviction and sentence, and thus prevents
federal habeas corpus review of the defaulted claim, unless the petitioner can
demonstrate cause and prejudice for the default.” Gray v. Netherland, 518 U.S.
152, 161-62, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996).
In Missouri, “habeas corpus is not a substitute for appeal or post-conviction
proceedings.” State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc
1993). “Missouri law requires that a habeas petitioner bring any claim that a
conviction violates the federal or state constitution, including a claim of ineffective
assistance of counsel, in a motion for post-conviction relief.” Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006). Accordingly, an offender who fails to
raise his claims on direct appeal or in post-conviction proceedings has procedurally
defaulted those claims “and cannot raise [the waived claims] in a subsequent
petition for habeas corpus.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo.
There are circumstances where a court may nonetheless reach the merits of a
procedurally barred claim, but only if “the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546,
115 L. Ed. 2d 640 (1991). In order to satisfy the “cause” requirement, Petitioner
must show that an “external” impediment prevented him from presenting his claim
to the state court in a procedurally proper manner. Id. at 753.
Review under 28 U.S.C. § 2254 is a review to determine whether a person
“is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Here, Petitioner’s allegations are set forth in Ground
One: that trial court erred by allowing the deposition testimony of the victim, and
Grounds two and three: that he received ineffective assistance of counsel.
Under 28 U.S.C.§ 2254(a) Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” Here, the
question of the admissibility of the evidence under Missouri law is an issue entirely
of state law. See Estelle v. McGuire, 502 U.S. 62 (1991). As such, this claim is not
cognizable under 28 U.S.C.§ 2254.
Grounds two and three are claims related to allegations of receiving
ineffective assistance of counsel. Petitioner alleges ineffective assistance of
counsel in Ground two by asserting counsel advised him to not testify in his trial.
In Ground three he asserts the trial court erred in failing to grant his Rule 29.15
motion relating to the ineffective assistance of counsel claim.
Grounds two and Ground three were reviewed by the Missouri Appeals
Court, Eastern District of Missouri. The claims were considered with Strickland v.
Washington, 466 U.S. 668 (1984) as the legal compass. In applying Strickland the
Missouri Appeals Court concluded the ineffective assistance of counsel claims
were without merit. In so doing, the Missouri court noted:
The testimony the motion court found credible reveals that
counsel did not advise Scott not to testify. Moreover, it supports
the motion court’s conclusion that Scott waived his right to testify
knowingly, voluntarily and intelligently. Scott’s argument on
appeal completely ignores the motion court’s credibility findings
and, instead, relies entirely on his own deposition testimony that counsel
had “falsely” told Scott he did not need to testify. This testimony has
already been discredited by the motion court, and thus
warrants no consideration by this Court. Moreover, even if
the record showed that counsel had advised him not to testify,
Scott has wholly failed to demonstrate that such advice was
anything other than a reasonable trial strategy. See Blair v.State, 402
S.W.3d 131, 139 (Mo. App. W.D. 2013).
Scott also completely failed to prove prejudice. While the
allegations in his motion may have raised a presumption of prejudice for
purpose of granting Scott the evidentiary hearing he wholly failed
to meet his burden of proving prejudice by a preponderance of the
evidence at that hearing. In his deposition testimony discredited by the
motion court–Scott claims only that he would have testified that he was
“not guilty.” In his brief, he merely asserts that his “testimony would
have changed the outcome of the case and provided a viable defense.”
We find no clear error in the motion court’s conclusion that Scott failed
to prove the result of his trial would have been different had he
testified. See Bode v. State,316 S.W.3d 406, 409 (Mo. App. W.D.
2010)(rejecting argument that prejudice presumed after
evidentiary hearing at which movant did not describe proposed
testimony and therefore could not establish how testimony would
have changed outcome at trial); see also Winfield v. State, 93 S.W.3d
732, 736 (Mo. Banc 2002) (finding no proof of prejudice where movant
said at evidentiary hearing he would have testified at penalty phase that
he had not committed murders, but failed to show how that would have
made difference in sentence).
(Respondent’s Exhibit J, pp. 4-5). As a consequence, and consistent with Colvin v.
Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003), this is a reasonable determination of
the issues and, as is legally required, must receive deference pursuant to 28 U.S.C
Grounds two and three are denied
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
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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)
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.
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus,
[Doc.No. 1], is 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 13th day of September, 2018.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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