Baker v. Steele
Filing
18
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the petition of Robert Baker for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1 ] is denied as moot. IT IS FURTHER ORDERED that the amended petition of Robert Bak er for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 5 ] is denied. IT IS FURTHER ORDERED that the petitioner has not made a substantial showing of a denial of a constitutional right and this Court will not grant a Certificate of Appealability. A separate judgment in accordance with the memorandum and order is entered this same date. Signed by District Judge Catherine D. Perry on 9/10/2018. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT BAKER,
Petitioner,
v.
TROY STEELE,
Respondent.
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Case No. 4:15 CV 1262 CDP
MEMORANDUM & ORDER
This case comes before this Court on Robert Baker’s amended pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 In 2010, a state
jury convicted Baker of two counts of first-degree statutory sodomy and six counts
of first-degree child molestation. The trial court sentenced Baker to eight
concurrent life sentences, one on each count. In his petition for habeas corpus,
Baker asserts three grounds for relief. Baker’s first and third grounds for relief are
procedurally barred because he failed to raise them in conformity with the
procedural requirements of the Missouri courts. Baker’s remaining ground for
relief is denied on the merits, because the Missouri Court of Appeals reasonably
applied the proper federal standard in considering and denying that claim.
1
Because Baker filed an amended petition, his original petition for writ of habeas corpus (Doc.
1) is denied as moot.
Accordingly, for the reasons that follow, this Court will deny Baker’s amended
petition for writ of habeas corpus.
Background
Baker was convicted at trial of sexually abusing five minor girls with whom
he shared a residence from 2007 to 2010. Because the five victims were minors
both at the time of trial and when the abuse occurred, they will be identified here
only by their initials. In descending age order, the girls are T.C., A.C., C.C., K.C.,
and A.B. At the time of trial, T.C. was 15 years old, A.C. was 13, twins C.C. and
K.C. were 12, and A.B. was 10. (Tr. Transcr. at 345, 380, 414, 435, 466).
Before trial, the court held a hearing pursuant to Mo. Rev. Stat. § 491.075 to
decide whether to permit certain adult witnesses to testify at trial about
conversations they had previously had with the juvenile victims, in which the
victims disclosed Baker’s sexual abuse. Section 491.075 allows for the admission
of testimony concerning statements made by a child under the age of fourteen who
has been the victim of a sexual crime, even though such testimony would
ordinarily be considered inadmissible hearsay, so long as (1) the court holds a
hearing and finds that the “time, content and circumstances of the statement
provide sufficient indicia of reliability,” and (2) the child witness either testifies in
court, is unavailable to testify, or it is demonstrated that “testifying in court would
be traumatic to the witness.” J.M.G. v. Juvenile Officer, 304 S.W.3d 193, 196
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(Mo. Ct. App. 2009); Mo. Rev. Stat. § 491.075(1). At the hearing, two social
workers (Karen Gudic and Megan Marietta) and a forensic interviewer (Beverly
Tucker) testified about interviews they had previously conducted with the victims
in this case. (Tr. Transcr. 7-20, 35-93). The trial court concluded that all of the
hearsay evidence presented at the hearing possessed sufficient indicia of reliability
to be admitted at trial at trial under § 491.075. (Tr. Transcr. at 19, 144).
At trial, T.C. testified that she was 13 years old when Baker first touched
her. (Tr. Transcr. at 371). She testified that Baker touched both her chest and her
private part with his hand under her clothes. (Tr. Transcr. at 352-54, 362). T.C.
also stated that Baker touched her chest “more than once,” (Tr. Transcr. at 375-76),
and that he touched her on “more than five” occasions in total. (Tr. Transcr. at
377).
A.C. testified that she was around 11 years old when Baker touched her.
(Tr. Transcr. at 411). A.C. testified that on separate occasions Baker squeezed her
genitals over her clothes and squeezed her breast underneath her bra. (Tr. Transcr.
at 398-99, 394).
C.C. testified that Baker touched her “middle part” (i.e., her genitals) with
his hands over her clothes. (Tr. Transcr. at 419-20). She also stated that he
touched her five separate times, always over her clothing. (Tr. Transcr. at 422,
428).
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K.C. testified that she once woke up in Baker’s room and that he then
prevented her from exiting by threatening to hit her with a belt. (Tr. Transcr. at
440-42). She stated that on that occasion Baker touched both her chest and
genitals over her clothes, as well as her “behind.” (Tr. Transcr. at 445-46). K.C.
also testified that Baker touched her genitals under her clothes on a separate
occasion. (Tr. Transcr. at 449-50).
The youngest victim, A.B., testified that Baker put his “middle part”
between her legs, and that his “middle part” touched her “middle part.” (Tr.
Transcr. at 477-79). She said that his “middle part” went inside her private part “a
little.” (Tr. Transcr. at 492). She also stated that Baker put his finger inside of her
“middle part,” (Tr. Transcr. at 480-81), and that he twice touched her breast with
his mouth. (Tr. Transcr. at 482-83).
Part of Baker’s trial strategy was to cast doubt on the victims’ credibility by
highlighting inconsistencies between their statements at trial and their previous
accounts of the abuse. For example, on cross-examination Baker’s attorney
suggested that T.C. had previously told a social worker that Baker touched her
private part only once and no other times, (Tr. Transcr. at 372), that A.C. had
previously stated Baker never touched her under her clothes, (Tr. Transcr. at 404),
that C.C. had told a social worker Baker touched her only once, (Tr. Transcr. at
429), that K.C. told a social worker Baker had tried to touch her middle but never
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did, (Tr. Transcr. at 460-61), and that A.B. had told a social worker that Baker only
ever touched her with his hands and mouth. (Tr. Transcr. at 496).
In an effort to explain the discrepancies in the girls’ stories, the State offered
the testimony of Megan Marietta, a social worker. The purpose of Marietta’s
testimony was to explain, in general terms, the process of disclosure for juvenile
victims of sexual abuse, and how it might help explain why a juvenile sex abuse
victim would alter her account of the abuse over time. When the State attempted
to elicit this testimony, defense counsel objected and the following exchange
ensued:
[Prosecutor]: And Ms. Marietta, can you tell us about the process of
disclosure of a child for some sort of abuse?
[Marietta]: Yes.
[Defense Counsel]: I’m going – to I’m going to object again as far as
relevance and bolstering. General disclosure of – unless [Marietta’s]
going to testify as to specific disclosures with these kids. General
disclosures I think is not relevant.
[The Court]: Come on over here, please.
(Counsel approached the bench, and the following proceedings were
had:)
[The Court]: The relevance at this time?
[Prosecutor]: In order to explain the – there have been some
inconsistencies with the girls that is explained through the process of
disclosure, why they would say one thing one time, another thing at a
different time. She’s an expert that can testify to that. That’s not
something in a jury’s regular course of learning in their lifetime.
...
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[The Court]: Why don’t you just ask about that specifically if you
wish to, and then I’ll see what – if she’s asked that, are you going to
object to it? I’m going to allow that. [Defense Counsel] go ahead,
make your objection. I think she can talk about inconsistency in a
general framework and then you can cross-examine her . . . .
...
(The proceedings returned to open court.)
[The Court]: Go ahead.
[Prosecutor]: Ms. Marietta, I need to be very specific here.
[Marietta]: Okay.
[Prosecutor]: Can you name, without further describing, the different
steps in [the] disclosure process?
[Marietta]: Yes, I can.
[Prosecutor]: Okay. Could you do that now?
[Marietta]: Sure.
[Defense Counsel]: I’m still going to object, Your Honor, as far as
relevance.
[The Court]: At this point it’s overruled.
[Marietta]: The first phase of the process is denial. The second phase
is a tentative disclosure. The third phase is an active disclosure. The
fourth stage is recantation, and the fifth stage is reaffirmation.
[Prosecutor]: Does that – do those different stages of disclosure often
result in some inconsistent statements during – if you take a statement
from one stage and compare it to a statement of another stage?
[Marietta]: Yes, it could.
[Defense Counsel]: I’m going to still object, You Honor, commenting
on credibility of a witness.
[The Court]: I’m going to allow it at this point, and I’m going to
assume that counsel is going to tie this into the case at some point.
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[Prosecutor]: Yes.
[Prosecutor]: And during your interviews, do children often go
through multiple disclosure stages, or is it just one stage at the point
you were interviewing them?
[Marietta]: In the course of a forensic interview, you can see a child
go through all of the phases, let alone throughout the entire systemic
response. So from the time the original allegation is seen up until
whatever end point you want to use, you can see the child go to and
from the stages based upon any varying consequence that may
happen.
(Tr. Transcr. at 516-520).
In its closing argument, the State used Marietta’s testimony to argue
that the process of disclosure could explain inconsistencies in the victims’
accounts of their abuse:
First you heard from a Megan Marietta. . . . And she described
through her training and through her experience that children go
through this process of disclosure when it comes to sexual abuse. The
first stage is denial, and so if you ask a child that’s been abused right
away what’s happening, they might not tell you because that first
stage of disclosure is the denial. The second one is tentative where
they’re tentatively – they’re kind of going to tell a little bit that
happens because they’re not quite sure what the reaction’s going to
be. They’re not sure how – who they’re going to tell, what’s going to
happen, or if anything’s going to change in their life. The third step is
active disclosure where they’re able to actually tell what happened to
them fully. Fourth step [is] sometimes recanting. The children will
recant often because of the reaction that happens after they’ve told, all
right. If they’re not in a comfortable environment, if they get a
negative reaction, they might recant. And then the last step is to
affirm. They affirm what had happened to them, and they go back to
their active disclosure and, again, tell what had happened to them, that
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they had been molested. [Marietta] described that, and she said that
can lead to sometimes inconsistencies in a child’s version of events
because they might be willing to tell a little bit here and then more and
more as the process goes. She says sometimes in that hour, hour and
half conversation she’ll have with them, they’ll go through some of
the steps. Sometimes it will take years for the child to get through all
of the steps of the process of disclosure.
(Tr. Transcr. at 687-688). Defense counsel, in turn, argued to the jury that it
should disbelieve the victims’ testimony because of the various
inconsistencies. (Tr. Transcr. at 702-03).
Ultimately, the jury convicted Baker of two counts of first-degree
statutory sodomy and six counts of first-degree child molestation. On
January 25, 2013, the trial court sentenced Baker to concurrent life sentences
on all counts. (Tr. Transcr. at 720). On direct appeal from his conviction,
Baker challenged only the trial court’s decision to allow Marietta to testify
about the five stages of disclosure. On February 11, 2014, the Missouri
Court of Appeals denied Baker’s appeal and affirmed his conviction. State
v. Baker, 422 S.W.3d 508 (Mo. Ct. App. 2014) (Resp. Exh. E).
Baker then filed a pro se motion for post-conviction relief under
Missouri Rule 29.15. (Resp. Exh. F). Baker’s pro se motion contained only
one claim – that trial counsel was ineffective because trial counsel had failed
to comply with Baker’s request to ask certain unspecified questions of
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certain unspecified witnesses. Appointed counsel amended Baker’s motion,
adding another claim that the sentence and judgment form erroneously
indicated Baker to be a persistent offender. Counsel also attached Baker’s
pro se motion to the amended motion. On October 20, 2014, the motion
court agreed that Baker was entitled to have the record corrected to reflect
his status as a prior, not persistent, offender; but the court denied Baker’s
ineffective assistance of counsel claim without an evidentiary hearing.
(Resp. Exh. G). Baker did not appeal from the motion court’s partial denial
of his motion for post-conviction relief.
Discussion
In his habeas petition, Baker sets forth three grounds for relief:
(1) Trial counsel was ineffective because trial counsel (a) failed to locate a
witness named Mike Madura who would allegedly have testified that the
victims were lying that Baker abused them; (b) failed to recall State’s
witness Kathleen Chineth to ask her certain questions at trial; and (c) failed
to ask for a recess at trial to interview a particular juvenile witness.
(2) The trial court deprived Baker of due process and a fair trial by allowing
Marietta to testify about the stages of disclosure.
(3) The trial court erroneously admitted certain hearsay statements that did
not qualify for admission under § 491.075. Specifically, Baker contends that
the trial court improperly determined that the testimony of social worker
Karen Gudic and of certain unspecified employees of the Children’s
Advocacy Services of Greater St. Louis (commonly known as the “CAC”)
was admissible under § 491.075.2 Presumably, the CAC employees to
2
Although Baker’s petition groups his claim regarding Gudic together with his second ground
for relief, I will address it along with the third ground for analytical clarity.
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whom Baker refers are Marietta and Beverly Tucker, both of whom
interviewed the victims in this case while employed by CAC.
I. Procedural Bar
The twin doctrines of exhaustion and procedural default ensure that
state prisoners give state courts the first chance to decide their federal
claims. Coleman v. Thompson, 501 U.S. 722, 731 (1991). Under the
exhaustion requirement, a federal court may not consider a state prisoner’s
habeas petition unless the prisoner has exhausted all available state court
remedies. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C.
§ 2254(b)(1)(A). To exhaust her state remedies, a prisoner “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.” O’Sullivan, 526 U.S. at 845. Under the doctrine of procedural
default, federal habeas courts are also barred from hearing claims that a state
prisoner has not fairly presented to the state courts on direct appeal or in
post-conviction proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir.
1997).
A state prisoner’s remedies are not exhausted so long as she “has the
right under the law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c). Once a prisoner can no longer
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bring her claims in state court (for example, because they would be time
barred), the exhaustion requirement is technically satisfied. O’Sullivan, 526
U.S. at 848; Welch v. Lund, 616 F.3d 756, 760 (8th Cir. 2010) (stating that
claims are technically exhausted when there is “no state-law remedy still
available”). However, even though a prisoner may technically exhaust her
claims by simply running out the clock in state court, in such a case she will
not be deemed to have properly exhausted her claims. O’Sullivan, 526 U.S.
at 848. When claims are improperly exhausted, they are procedurally
defaulted. Id. And once a claim is procedurally defaulted, a federal habeas
court may not consider it “unless 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, 501 U.S. at 750.
Ground One: Ineffective Assistance of Counsel
Baker’s first ground for relief contains three claims for ineffective
assistance of trial counsel. Under Missouri law, all claims for ineffective
assistance of counsel must be raised in a motion for post-conviction relief
under Rule 29.15. State v. Martin, 386 S.W.3d 179, 185 (Mo. Ct. App.
2012); Rule 29.15(a). However, even construing Baker’s Rule 29.15 motion
broadly, it at most included only one of the three ineffective assistance
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claims that he asserts here (namely, that trial counsel was ineffective for
failing to ask certain questions of State’s witness Kathleen Chineth). (See
Resp. Exh. F). Therefore, Baker did not exhaust the other two claims
contained in his first ground because, by failing to raise them in a motion
under Rule 29.15, he did not allow the Missouri courts “one full
opportunity” to resolve them. As for the ineffective assistance claim that
Baker arguably did include in his Rule 29.15 motion, that claim was also not
exhausted because Baker never appealed from the denial of that motion,
meaning he did not give the Missouri courts one full opportunity to resolve
it. See Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994) (“Missouri
procedure requires that a claim be presented at each step of the judicial
process in order to avoid default. Failure to raise a claim on appeal from the
denial of a post-conviction motion erects a procedural bar to federal habeas
review.”); Osborne v. Plunkett, 411 F.3d 911, 919 (8th Cir. 2005) (finding a
prisoner’s claim procedurally barred because he failed to include the claim
in his appeal from the denial of his Rule 29.15 motion).
Thus, Baker did not properly exhaust the three claims contained in his
first ground for relief. If these claims could still be raised in the state courts,
the appropriate remedy would be for this Court to dismiss Baker’s entire
habeas petition so that he could give the state courts the first chance to
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consider the unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982).
However, Baker can no longer raise any of these claims in state court. He
cannot file another motion for post-conviction relief because successive
motions are prohibited by Rule 29.15(l). Nor can he appeal from the partial
denial of his original Rule 29.15 motion, because the time for taking such an
appeal has long since run out. This is so because, under Rule 29.15(k), the
denial of a Rule 29.15 motion is “deemed a final judgment for purposes of
appeal by the movant,” and Missouri law requires all appeals from a final
judgment to be taken within ten days after the judgment becomes final.
Berger v. Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc. 2005);
Rule 81.04(a). Here, the motion court’s denial of Baker’s Rule 29.15
motion became final on October 20, 2014. (Resp. Exh. G). He was thus
required to file notice of appeal by October 30, 2014, but did not. Even so,
Baker had an additional six months to seek a special order permitting a late
appeal. Berger, 173 S.W.3d at 640; Rule 81.07(a). But Baker missed this
six-month window too, as it closed on April 20, 2015. Baker did not even
file his initial habeas petition until August 14, 2015, nearly four months after
the extension period had ended. (Doc. 1). Nor does Baker have the ability
to raise these claims in a state habeas corpus action under Missouri Rule 91.
See Daniels v. Jones, 944 F.2d 429, 430 (1991) (holding that a Missouri
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prisoner had exhausted his state remedies even without filing a state habeas
corpus action, because “it is clear under Missouri law that state habeas
corpus relief is unavailable on claims that could have been raised . . . during
state postconviction proceedings”). Thus, Baker’s entire first ground for
relief has been improperly exhausted, meaning that it is procedurally
defaulted. O’Sullivan, 526 U.S. at 848; Welch, 616 F.3d at 758 (“A failure
to exhaust remedies properly in accordance with state procedure results in
procedural default of the prisoner’s claims.”).
Because Baker’s entire first ground for relief is procedurally
defaulted, this Court cannot consider any of the claims therein unless Baker
shows (1) cause and prejudice; or (2) a fundamental miscarriage of justice.
To establish “cause,” Baker must show that “some objective factor external
to the defense” impeded his efforts to present these claims to the state courts.
Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate prejudice,
Baker must show that the claimed trial errors “worked to his actual and
substantial disadvantage, infecting the entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). However,
because Baker offers no reason for his failure to properly raise these claims
in state court, he provides nothing that might constitute “cause” sufficient to
excuse his default.
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Alternatively, Baker might be able to excuse his procedural default by
showing that failure to consider this ground for relief would result in a
fundamental miscarriage of justice. This requires Baker to demonstrate that
he is actually innocent of the crimes for which he was convicted. Murray v.
Carrier, 477 U.S. 478, 496 (1986); see also Schlup v. Delo, 513 U.S. 298,
321 (1995) (explaining that the Supreme Court has “explicitly tied the
miscarriage of justice exception to the petitioner’s innocence”). To establish
actual innocence under Schlup, a petitioner must present “new evidence”
that “was not presented at trial,” in light of which it is “more likely than not
that no reasonable juror would have convicted” the petitioner. 513 U.S. at
324, 327. A Schlup claim is “‘not itself a constitutional claim, but instead a
gateway through which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits.’” Schlup, 513 U.S. at
315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). The Supreme
Court has repeatedly emphasized that the standard for a Schlup actual
innocence claim is a stringent one, which most habeas petitioners will not
meet. See Schlup, 513 U.S. at 321 (“[H]abeas corpus petitions that advance
a substantial claim of actual innocence are extremely rare.”); House v. Bell,
547 U.S. 518, 538 (2006) (stating that the standard for actual innocence is
“demanding” and will be met in only the “extraordinary case”); McQuiggin
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v. Perkins, 133 S. Ct. 1924, 1928 (2013) (“[T]enable actual-innocence
gateway pleas are rare.”).
Although Baker does not here argue that he can establish his actual
innocence, he does assert in his first ground for relief that his trial counsel
was ineffective for failing to locate a witness named Mike Madura,3 who
Baker alleges would have testified that the victims in this case were induced
to lie that Baker had abused them. However, Baker’s petition does not
include an affidavit from Mike Madura; in fact, Baker offers nothing more
than a bare allegation that Madura would have testified to this if trial counsel
had been able to track him down. Baker’s mere allegation does not qualify
as new evidence capable of supporting a Schlup claim. See Weeks v.
Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (holding that mere
allegations of evidence are insufficient to invoke the actual innocence
exception).
Moreover, even if Baker could produce an affidavit from Madura
stating that the victims were coerced into falsely testifying against him, an
actual innocence claim based on this evidence would still fail. In the Eighth
Circuit, “evidence is not ‘new’ under Schlup unless it was ‘not available at
3
Mike Madura is possibly the same person who is identified in the trial transcript as “Mike
Mandora.” (Tr. Transcr. at 670-71). At trial, Baker’s niece, Ruby Barber, testified that Mike
Mandora was her fiancée, and that she would occasionally stay at Mandora’s home in St. Louis
County. (Tr. Transcr. at 670-72).
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trial and could not have been discovered earlier through the exercise of due
diligence.’” Kidd v. Norman, 651 F.3d 947, 952 (8th Cir. 2011) (quoting
Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)). Under this
standard, Madura’s alleged testimony cannot serve as “new” evidence to
excuse Baker’s procedural default unless it “could not have been discovered
earlier through the exercise of due diligence.” But nothing in the record or
in Baker’s petition indicates that Madura could not have been located before
trial had either Baker or his trial counsel exercised due diligence. At his
sentencing hearing, Baker did complain that his trial counsel had “brought
witnesses in, but not the ones I needed.” (Tr. Transcr. at 724). Although
Baker could not name the exact witnesses that trial counsel had failed to
locate, trial counsel suggested that Baker meant “the white fellow that lived
in the basement” of the house with Baker, as well as someone named “Mike
Ozzie.” (Tr. Transcr. at 725-27). The “white fellow that lived in the
basement” was a man named Kenneth Bourbon, not Mike Madura. (Tr.
Transcr. at 360, 409, 486, 638, 642). Trial counsel stated at the sentencing
hearing that he tried but was unable to locate both Bourbon and Ozzie. (Tr.
Transcr. at 725-27). However, there was no mention of Mike Madura at the
hearing.4 Thus, although it might be possible from the record to say that
4
The Court has no reason to believe that Madura and Ozzie may be the same person, apart from
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Bourbon and Ozzie could not have been found even “through the exercise of
due diligence,” there is no similar basis from which the Court could
conclude that Mike Madura could not have been found earlier if Baker and
his trial counsel had searched diligently. Therefore, even if it were true that
Madura would in fact provide an affidavit in accordance with Baker’s bare
allegations, it would not constitute “new evidence” for Schlup purposes.
Baker thus cannot invoke the fundamental miscarriage of justice exception
to save his first ground for relief from procedural default.
For these reasons, ground one must be denied as procedurally barred.
Ground Three: Hearsay Testimony
In his third ground for relief, Baker argues that the trial court
improperly admitted hearsay testimony by Gudic and certain CAC
employees (as noted above, presumably Marietta and Tucker) that did not
qualify for admission under § 491.075. Baker did not challenge the
admission of Gudic’s, Tucker’s, or Marietta’s testimony either on direct
appeal or in his post-conviction proceedings.5 He thus “fail[ed] to present
[these claims] to the Missouri courts at any stage of his direct appeal or his
post-conviction proceedings.” Sweet, 125 F.3d at 1147. Baker no longer
their shared first name.
5
Although Baker did challenge the trial court’s admission of Marietta’s testimony on the specific
issue of the stages of disclosure (which is the subject of his second ground for relief, discussed
below), Baked never argued in the state courts that Marietta’s entire testimony should not have
been admitted, which the Court understands to be Baker’s argument here.
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has any avenue to raise these claims in the Missouri courts. See State v.
Galvan, 744 S.W.2d 510, 511 (Mo. Ct. App. 1988) (“Successive direct
appeals in a criminal case are not authorized.”); Daniels, 944 F.2d at 430
(noting that, under Missouri law, a state habeas corpus action is generally
unavailable for claims that could have been raised on direct appeal).
Therefore, as with his first ground for relief, Baker’s third ground for relief
is improperly exhausted and thus procedurally defaulted. O’Sullivan, 526
U.S. at 848. As discussed above, Baker offers no “cause” to justify a
default, nor does he point to any new evidence that might satisfy the Schlup
actual innocence standard. Therefore, his third ground for relief will also be
denied as procedurally barred.
II. Merits of the Remaining Ground for Relief
Baker’s lone remaining ground for relief is that the trial court erred in
allowing Marietta to testify about the stages of disclosure experienced by
juvenile victims of sexual abuse, and thereby denied him due process and a
fair trial. Baker raised this ground on direct appeal, and the Missouri Court
of Appeals denied it. State v. Baker, 422 S.W.3d 508 (Mo. Ct. App. 2014)
(Resp. Exh. E).
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal habeas court may grant relief to a state prisoner only
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if the state court’s decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “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)(1), (2).
Under subsection (1), a state court’s decision is “contrary to” clearly
established Federal law when “the state court applies a rule different from
the governing law set forth in [the Supreme Court’s] cases, or if it decides a
case differently than [the Supreme Court] on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A state
court’s decision is an “unreasonable application of” clearly established
Federal law when “the state court correctly identifies the governing legal
principle from [the Supreme Court’s] decisions but unreasonably applies it
to the facts of the particular case.” Id. To grant relief under the
“unreasonable application” clause, it is not enough that this Court would
have decided the claim differently; rather, the state court’s application of
Supreme Court precedent must have been “objectively unreasonable.” Id.
(citing Williams v. Taylor, 529 U.S. 362, 409-410 (2000)). Under
subsection (2), a “state court’s decision involves ‘an unreasonable
determination of the facts in light of the evidence presented in state court
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proceedings’ only if it is shown that the state court’s presumptively correct
factual findings do not enjoy support in the record.” Jones v. Luebbers, 359
F.3d 1005, 1011 (8th Cir. 2004) (quoting 28 U.S.C. § 2254(d)(2)). The
petitioner has the burden of making this showing by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
“‘Questions regarding admissibility of evidence are matters of state
law, and they are reviewed in federal habeas inquiries only to determine
whether an alleged error infringes upon a specific constitutional protection
or is so prejudicial as to be a denial of due process.’” Rousan v. Roper, 436
F.3d 951, 958 (8th Cir. 2006) (quoting Logan v. Lockhart, 994 F.2d 1324,
1330 (8th Cir. 1993)). A state violates the Fourteenth Amendment’s Due
Process Clause when it admits evidence that is “so unduly prejudicial that it
renders the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808,
825 (1991) (citing Darden v. Wainwright, 477 U.S. 168, 179-83 (1986));
Kansas v. Carr, 136 S. Ct. 633, 644 (2016). Accordingly, the issue posed is
whether Marietta’s testimony was “so unduly prejudicial” as to render
Baker’s trial “fundamentally unfair.”
In denying this claim on direct appeal, the Missouri Court of Appeals
applied the correct federal standard. See Baker, 422 S.W.3d at 513 (“[W]e
. . . will reverse only if the error was so prejudicial that it deprived the
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defendant of a fair trial.”). The Court of Appeals reasoned that Marietta’s
testimony “was admissible to assist the jury in understanding the behavior of
victims of sexual abuse, a topic relevant to the jurors’ duties of assessing the
witnesses’ credibility and rendering a verdict.” Baker does not here argue
that the decision of the Court of Appeals was based on an unreasonable
determination of the facts. Therefore, this Court may reverse the appellate
court’s decision only if it unreasonably applied the governing standard.
In Anderson v. Goeke, 44 F.3d 675 (8th Cir. 1995), the court
considered whether evidence admitted at trial had been so unduly prejudicial
as to deny the defendant due process. Anderson had been convicted of firstdegree murder for persuading three men to shoot her husband. At trial, one
of Anderson’s defenses was that she suffered from Battered Spouse
Syndrome because her husband had physically abused her. Id. at 677. The
prosecution advanced a different theory: that Anderson was motivated at
least in part by “lust,” because she had been having extramarital affairs with
multiple men, including one of her husband’s killers. Id. On appeal,
Anderson argued that the prosecutor’s various references throughout the trial
to her sexual conduct were unduly prejudicial and therefore denied her due
process. The court stated:
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The question of undue prejudice in the admissibility of evidence
addresses itself to the discretion of the trial court. Here, this evidence
bore upon the validity of Anderson’s diminished mental capacity
claim and supported the State’s theory that Anderson killed her
husband out of greed and lust. Without necessarily approving
admissibility as a matter of the trial court’s discretion, we cannot say
that the prosecutor’s presentation of that testimony violated
Anderson’s due process rights.
Id. at 678. Thus, because the challenged evidence “bore upon the validity
of” one of Anderson’s defenses, and also supported the State’s theory of the
case, the court found no denial of due process in the evidence’s admission.
Similarly here, Marietta’s testimony as to the stages of disclosure for a
juvenile victim of sexual abuse “bore upon the validity of” Baker’s attempt
to discredit the victims by highlighting inconsistencies between their trial
testimony and their previous accounts of the abuse. Marietta’s testimony
also supported the state’s theory of the case, because it helped the State to
explain why the girls’ stories might plausibly have varied over time. Thus,
the admission of Marietta’s testimony on the stages of disclosure was not
“so unduly prejudicial” as to make Baker’s trial “fundamentally unfair.” See
also Wood, 809 F.2d at 460 (finding no due process violation when the
challenged testimony “bore directly upon the validity of” the defendant’s
defense and was “highly relevant to the state’s theory” of the crime).
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Furthermore, even assuming for argument’s sake that the trial court
did err in admitting Marietta’s testimony, “not every trial error amounts to a
constitutional violation.” Anderson, 44 F.3d at 679. Rather, a state court
evidentiary ruling requires reversal only if the petitioner shows that “‘there
is a reasonable probability that the error complained of affected the outcome
of the trial – i.e. that absent the alleged impropriety the verdict probably
would have been different.’” Id. (quoting Hamilton v. Nix, 809 F.2d 463,
470 (1987)). Important considerations to this inquiry include “the frequency
and pervasiveness of the alleged misconduct in the context of the entire trial,
the weight of the evidence supporting guilt, and whether the trial judge gave
a cautionary instruction to the jury on how to properly use the testimony
elicited.” Anderson, 44 F.3d at 679. Viewing Marietta’s testimony in the
context of the entire trial, there is no reasonable probability that the verdict
would have been different without it. Although the trial judge did not give a
cautionary instruction, Marietta’s testimony was considerably less important
than that of the five victims, each of whom provided strong evidence of
Baker’s guilt by separately testifying as to how he had abused them.
Therefore, because the Missouri Court of Appeals reasonably applied
the correct federal standard, its decision is entitled to deference. Baker’s
second ground for relief will be denied accordingly.
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Certificate of Appealability
A petitioner denied a writ of habeas corpus under 28 U.S.C. § 2254 may not
appeal unless granted a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A).
To be entitled to a Certificate of Appealability, the petitioner must make a
substantial showing of the denial of a constitutional right. § 2253(c)(2); see
Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A showing is substantial
when the issues raised are debatable among reasonable jurists, a court could
resolve the issues differently, or the issues deserve further proceedings. Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). Finding none of these to be the case
here, I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that the petition of Robert Baker for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 1] is denied as moot.
IT IS FURTHER ORDERED that the amended petition of Robert Baker
for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. 5] is denied.
IT IS FURTHER ORDERED that the petitioner has not made a substantial
showing of a denial of a constitutional right and this Court will not grant a
Certificate of Appealability.
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A separate judgment in accordance with the memorandum and order is
entered this same date.
_______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 10th day of September, 2018.
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