Reed v. Steele

Filing 39

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Arthur T. Reed. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for a Writ of Habeas Corpus under 28 U.S.C. §2254 be denied and be dismis sed with prejudice by separate judgment entered this date. IT IS FURTHER ORDERED, ADJUDGED and DECREED that Petitioner be denied a Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal. Signed by Magistrate Judge Abbie Crites-Leoni on 3/1/19. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARTHUR REED,
Petitioner,
vs.
TROY STEELE,
Respondent.

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Case No. 4:15 CV 1843 ACL

MEMORANDUM AND ORDER
This matter is before the Court on the Petition of Arthur Reed for a writ of habeas corpus
under 28 U.S.C. ' 2254.
I. Procedural History
Reed is currently incarcerated at the Eastern Reception, Diagnostic and Correctional
Center in Bonne Terre, Missouri, pursuant to the sentence and judgment of the Circuit Court of St.
Louis City, Missouri. (Doc. 15-4 at 129-32.) On July 7, 2009, a jury found Reed guilty of
second-degree burglary, felony resisting arrest, misdemeanor stealing, first-degree trespass, and
second-degree property damage. (Doc. 15-1 at 86.) The court sentenced him as a prior and
persistent offender to an aggregate sentence of twenty-four years’ imprisonment. Id. at 107.
In his direct appeal of his convictions, Reed raised four claims: (1) the evidence was
insufficient to support his conviction for resisting arrest; (2) the trial court plainly erred in allowing
the State to present hearsay testimony; (3) the trial court erred in overruling Reed’s motions for
judgment of acquittal at the close of the State’s case because the State failed to prove beyond a
reasonable doubt that Reed was guilty of burglary and trespassing; and (4) the trial court erred in
denying Reed’s motion for a new trial because the prosecution withheld favorable material
evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963).
1

(Doc. 15-2.)

On February 8, 2011, the Missouri Court of Appeals affirmed the judgment of the trial court.
(Doc. 15-5.)
Reed filed a pro se motion for post-conviction relief under Rule 29.15. (Doc. 15-6 at
6-13.) After appointment of counsel, an amended post-conviction relief motion and request for
evidentiary hearing was filed. (Doc. 15-7 at 3-25). The amended motion raised the following
claims: (1) trial counsel was ineffective in inducing Reed to give up his right to testify; (2) trial
counsel was ineffective in failing to introduce the entire 911 tape; and (3) the State failed to
disclose evidence to Reed in violation of Brady. Id. The motion court denied Reed’s amended
motion after holding an evidentiary hearing. Id. at 149-62.
In his appeal from the denial of post-conviction relief, Reed argued that trial counsel was
ineffective in failing to play the entire 911 call. (Doc. 15-8 at 22.) He also argued that the State
committed a Brady violation. Id. at 24. The Missouri Court of Appeals affirmed the decision of
the motion court. (Doc. 15-10.)
Reed filed the instant Petition on December 4, 2015, in which he raises the following
grounds for relief: (1) the evidence was insufficient to convict him of resisting arrest; (2) the
evidence was insufficient to show he committed second-degree burglary and the misdemeanor
charges of trespassing, stealing, and property damage; (3) trial counsel was ineffective for
stipulating with the State not to play the entire 911 call for the jury; (4) the State violated Brady;
(5) the Missouri Supreme Court erred in denying his State petition for habeas corpus under
Missouri Supreme Court Rule 91; (6) the “cumulative effect of all the alleged errors” warrants
habeas relief; (7) trial counsel was ineffective for failing to request new counsel at a post-trial
hearing; (8) trial counsel was ineffective for failing to object to the prosecutor’s use of an evidence
envelope at the post-trial hearing; (9) trial counsel was ineffective for failing to object to the
admission of Reed’s clothes and the hammer used in the burglary; and (10) trial counsel was
2

ineffective for failing to impeach Officer Tesreau concerning the evidentiary chain of custody.
(Doc. 1.)
Respondent filed a Response to Order to Show Cause, in which he argues that Grounds
Five and Six are not cognizable in federal habeas review; Grounds Seven, Eight, Nine, and Ten
are procedurally defaulted; and all of Reed’s claims fail on their merits. (Doc. 15.) Reed then
filed a Traverse, in which he provides further argument in support of his claims.
II.

Facts1

On August 25, 2008, Jerry Warden saw Reed attempting to enter an unoccupied home
(the first house). When Reed was unable to force the door open, he entered a second
unoccupied home under renovation (the second house) and left approximately 30 seconds later
holding a hammer. Reed then used the hammer to pry open the door of the first house.
Warden called 911 to report that a heavyset male wearing shorts and a gray sweatshirt was
breaking into homes. Upon police arrival shortly thereafter, Reed ran from the first house and
into the road, forcing a car to stop abruptly; and fled down an alley.
Officer Matthew Tesreau followed Reed on foot, responding to reports of Reed’s
location. Reed began running when he saw Officer Tesreau, dressed in uniform, despite orders
to stop. Officer Tesreau caught up with Reed and ordered him at gunpoint to stop because he
was under arrest. Reed complied, and Officer Tesreau holstered his gun and took out his taser.
When Reed refused to follow Officer Tesreau’s order to get on the ground, Officer Tesreau
deployed his taser multiple times.
Officer Tesreau waited for backup officers before placing Reed under arrest. The
officers took Reed back to the scene of the robbery, where Warden identified him. Officers

1

The Court’s recitation of the facts is taken from the decision of the Missouri Court of Appeals on
direct review. (Doc. 15-5 at 3-6.)
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found a hammer just inside the doorway to the first house, and the owner noted that the door had
been forced open and that the hammer did not belong to him. The owner of the second house
also noted that his door had been damaged, and identified the hammer as his. Neither owner
had given Reed permission to enter the residences.
The jury found Reed guilty of burglary in the second degree, resisting arrest, stealing
under $500, trespassing in the first degree, and property damage in the second degree. Reed
moved for judgment of acquittal or for a new trial, asserting that the State had not met its burden
of proving each and every element of its case. The court denied Reed’s motion for a new trial,
after holding multiple evidentiary hearings.

III. Standard of Review
A federal court=s power to grant a writ of habeas corpus is governed by 28 U.S.C. §
2254(d), which provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(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).
The Supreme Court construed § 2254(d) in Williams v. Collins, 529 U.S. 362 (2000).
With respect to the “contrary to” language, a majority of the Court held that a state court decision
is contrary to clearly established federal law “if the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law” or if the state court “decides a case
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differently than [the] Court has on a set of materially indistinguishable facts.” Id. at 405. Under
the “unreasonable application” prong of § 2254(d)(1), a writ may issue if “the state court identifies
the correct governing legal rule from [the Supreme Court=s] cases but unreasonably applies [the
principle] to the facts of the particular state prisoner’s case.” Id. Thus, “a federal habeas court
making the ‘unreasonable application’ inquiry should ask whether the state court’s application of
clearly established federal law was objectively unreasonable.” Id. at 410. Although the Court
failed to specifically define “objectively unreasonable,” it observed that “an unreasonable
application of federal law is different from an incorrect application of federal law.” Id. at 410.
IV.

Petitioner’s Claims

Reed raises ten grounds for relief. The undersigned will discuss these claims in turn.

A.

Ground One
In his first ground for relief, Reed argues that the evidence was insufficient to sustain his

conviction of resisting arrest by fleeing. He argues that the State did not prove that Officer
Tesreau was trying to make an arrest of Reed.
The statutory language of the criminal offense of which Reed was convicted provides, in
relevant part, as follows:
A person commits the offense of resisting or interfering with arrest, detention, or
stop if he or she knows or reasonably should know that a law enforcement officer is
making an arrest or attempting to lawfully detain or stop an individual or vehicle,
and for the purpose of preventing the officer from effecting the arrest, stop or
detention, he or she:
(1) Resists the arrest, stop or detention of such person by using or threatening the
use of violence or physical force or by fleeing from such officer..
Mo. Rev. Stat. § 575.150.
Reed raised this claim in his direct appeal. The Missouri Court of Appeals held as
follows:
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Contrary to Reed’s assertion on appeal, Officer Tesreau did testify at trial
that he informed Reed he was under arrest before Reed fled. Specifically, he
testified on cross-examination that before he tased Reed for the first time he
‘advised [Reed] to get down on the ground, that he was under arrest, which [Reed]
did not, he did not comply to [sic].’ (Trial Transcript at p. 281.) Accepting this
testimony as true, as we must, there was sufficient evidence from which a
reasonable juror might have found Reed guilty of resisting arrest. Id. Namely,
the evidence established that Officer Tesreau was attempting to arrest Reed, that
Officer Tesreau—while in uniform—shouted for Reed to stop because he was
under arrest, that Reed fled both when the police first arrived and also from Officer
Tesreau, and that during Reed’s initial flight he ran into the road, forcing a passing
car to stop abruptly in a manner that could have caused the driver injury. State v.
Daws, 311 S.W.3d 806, 808-09 (Mo. banc 2010) (five elements of resisting arrest
are: (1) law enforcement officer is making or attempting to make a lawful arrest or
stop; (2) defendant knew of or reasonably should have known of law enforcement
officer’s lawful attempt; (3) defendant resists by fleeing; (4) defendant resisted for
purpose of thwarting law enforcement officer’s lawful attempt to arrest or stop by
threat of violence or by fleeing; and (5) defendant fled in manner that created
substantial risk of serious physical injury to another).
(Doc. 15-5 at 7-8.)
In reviewing a challenge to a sufficiency of the evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Accord Parker v. Matthews, 567 U.S.
37, 43 (2012); Cavazos v. Smith, 565 U.S. 1, 7 (2011). “This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. State law determines the specific elements of the crime at issue. Fenske v.
Thalacker, 60 F.3d 478 (8th Cir. 1995). The federal habeas court’s scope of review is very
limited. The Court “must presume that the trier of fact resolved all conflicting inferences in the
record in favor of the state” and “must defer to that resolution.” Whitehead v. Dormire, 340 F.3d
532, 536 (8th Cir. 2003) (quotation marks omitted). Furthermore, “a state-court decision
rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was
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objectively unreasonable.” Parker, 567 U.S. at 43 (quotation marks omitted).
The Missouri Court of Appeals’ decision was not contrary to, or an unreasonable
application of, clearly established federal law, nor was it based on an unreasonable determination
of the facts in light of the evidence presented. Consistent with Jackson v. Virginia, the Missouri
Court examined whether the testimony presented at trial established the elements of the crime as
defined under Missouri law. The only element challenged by Reed is that Officer Tesreau was
attempting to make an arrest. The Missouri Court of Appeals cited Officer Tesreau’s testimony
that he advised Reed to get down on the ground and that he was under arrest. (Doc. 15-1 at 74.)
The undersigned’s review of the record shows that the State court’s determination of the facts is
supported by the record.
Thus, Ground One is denied.
B.

Ground Two
In his second ground for relief, Reed argues that the evidence at trial was insufficient to

show he committed second-degree burglary or the misdemeanor charges of trespassing, stealing,
and property damage, because the State’s eyewitness did not make an in-court identification.
Reed raised this claim in his direct appeal. The Missouri Court of Appeals held as
follows:
The crux of Reed’s argument appears to be that because Warden did not
make an in-court identification of Reed that the State per se failed to produce
sufficient evidence to establish beyond a reasonable doubt that Reed was the person
who entered the first and second houses. An in-court identification, however, is
not mandatory where the witness’s total testimony sufficiently identifies the
defendant as the person who committed the crime. State v. Gaines, 316 S.W.3d
440, 455 (Mo. App. W.D. 2010) (in-court identification not necessary when totality
of evidence shows that defendant was person who committed crime); State v.
Baker, 23 S.W.3d 702, 708 (Mo. App. E.D. 2000) (there was sufficient evidence to
identify defendant as accused, even where victim did not physically indicate
defendant’s presence in courtroom).
Here, trial testimony established that Warden witnessed “the defendant”
attempt to enter house one, enter house two, leave house two with a hammer, and
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then use that hammer to gain entry to house one. The owners of the first and
second houses both testified to damage to their doors, and both testified that they
had not given Reed permission to enter. The owner of the first house testified that
the hammer found in his house did not belong to him, and the owner of the second
house testified that the hammer found in the first house belonged to him. After
Reed was arrested, Warden identified him at the scene as the person he had seen
entering the houses. At trial, Warden identified the clothes Reed was wearing
when he was arrested, as matching the clothes worn by the burglar. Also at trial,
Officer Tesreau made an in-court identification of Reed as the man he arrested on
August 25, 2008, and testified that after Reed’s arrest he was returned to the crime
scene for Warden to identify
Even without an in-court identification by Warden, the record and
inferences sufficiently established that Reed was the person who committed the
crimes. Gaines, 316 S.W.3d at 455; Baker, 23 S.W.3d at 708. Under our
standard of review, there was sufficient evidence for a jury to have found Reed
guilty of burglary, stealing, trespassing, and property damage. Gibbs, 306 S.W.3d
at 181.
(Doc. 15-5 at 10-11.)
The appellate court concluded that the record and inferences sufficiently established that
Reed was the person who committed the crimes. Based on the Court’s review of the record from
the trial, these findings and conclusions are not objectively unreasonable. As such, Reed is not
entitled to relief on Ground Two.
C.

Ground Three
Reed argues that trial counsel was ineffective for stipulating with the State that the 911 call

made by Jerry Warden did not need to be played for the jury in its entirety. Specifically, Reed
contends that the un-played portion of the 911 call contradicted Warden’s trial testimony, and
supported the defense theory that Reed never entered the first house.
The portion of the 911 call admitted into evidence at trial contained the following
conversation between Warden and the dispatcher:
[Dispatcher]: Can I help you?
[Warden]: Yes, good morning. My name is Jerry Warden at 2707 McNair and a guy is
breaking into a house right across the street.
[Dispatcher]: Okay. What’s the address?
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[Warden]: It would be 2704 McNair, M-C-N-A-I-R.
[Dispatcher]: McNair?
[Warden]: Yeah.
***
[Warden]: …He went into the house next door and got some tools and he’s over at the
house now.
[Dispatcher]: And he’s breaking in what door?
[Warden]: 2704.
[Dispatcher]: I understand. Front door? Back door? Side door?
[Warden]: Well, it’s the front door, actually which is the side of the house.
[Dispatcher]: Okay. So kicking in the front door on the side of the house?
[Warden]: Yes.
[Dispatcher]: Okay. He also broke into which house?
[Warden]: Let’s see, it would be probably 2406, or 08. I can’t see the numbers from here.
Let me see, he’s just going to the back door now.
(Doc. 15-1 at 65.) The State stopped the recording at this point, and informed the jury that the
“next information is just [Warden’s] pedigree information.” Id.
In the un-played portion of the 911 call,2 the dispatcher obtained Warden’s contact
information and dispatched to police officers the information Warden provided about the incident.
Warden then confirmed that Reed went around to the back of the house, and the dispatcher asked
Warden if he could see him. Warden responded, “No, I don’t see. He might be in the house.”
The dispatcher told Warden that the police might call him for more information and terminated the
call.
At trial, Warden testified that he saw Reed approach the front door of the first house, then
walked to the back of the first house, at which time Warden could no longer see him. (Doc. 15-1
at 55.) After being behind the house for “a minute or so,” Reed came back around the side of the
house. Id. Warden testified that he saw Reed break into the first house and later “come running
out of the front of the house into the street” when the police arrived.” Id. at 56-57.
Reed raised this claim in the post-conviction proceedings. The motion court rejected

2

The Court’s summary of the un-played portion of the call is taken from the decision of the
Missouri Court of Appeals. (Doc. 15-10 at 8-9.)
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Reed’s claim, finding the content of the un-played portion of the tape was not significantly
different from Warden’s trial testimony, and would not have affected the outcome of the trial.
(Doc. 15-7 at 154.) The Missouri Court of Appeals held as follows, in relevant part:
Contrary to Movant’s assertion, the un-played portion of the 911 telephone
call neither contradicted nor added to Mr. Warden’s testimony. In the un-played
portion of the call, Mr. Warden confirmed that Movant went around to the back of
the house and informed the dispatcher that he could not see Movant and Movant
might have entered the house. Likewise, at trial, Mr. Warden testified that he told
the 911 dispatcher that Movant went to the back of the house and that he “lost
sight” of him. Thus, the information contained in the un-played portion of the 911
telephone call is consistent with Mr. Warden’s testimony at trial.
Additionally, the record refutes Movant’s contention that the un-played
portion of the 911 call supported the defense theory that Movant never entered the
first house. In the un-played portion of the 911 call, Mr. Warden informed the
dispatcher that he could not see Movant and “he might be in the house.” At trial,
Mr. Warden testified that after Movant went to the back of the house, returned to
the front of the house. He testified that Movant entered the front door and that
when the police arrived, he saw Movant “running out of the front of the house[.]”
The un-played 911 call does not demonstrate that Movant did not enter the house,
but rather ends before Movant returned to and entered the front of the house.
(Doc. 15-10 at 9.)
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective assistance of
counsel, a habeas petitioner must show both that “[his] counsel’s performance was deficient” and
that “the deficient performance prejudiced [his] defense.” Id. at 687; see also Paulson v. Newton
Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance, the petitioner
must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and Petitioner
bears a heavy burden in overcoming “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” and “might be considered sound trial strategy.”
Id. at 689 (citations omitted). To show prejudice, the petitioner must show that “there is a
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reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
When, as here, an ineffective assistance claim has been addressed by the State court, this
Court must bear in mind that “[t]aken together, AEDPA and Strickland establish a ‘doubly
deferential standard’ of review.” See Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(citation omitted). In the context of a habeas claim, it is not sufficient for a petitioner to “show
that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance.”
Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he must show that the [state court] applied
Strickland to the facts of his case in an objectively unreasonable manner.” Id. at 699.
Here, the State appellate court properly applied Strickland. The Missouri Court of
Appeals found that the un-played portion of the tape was consistent with Warden’s trial testimony
that he saw Reed approach the first house, then walk around to the back where he lost sight of him.
This finding is supported by the record. Reed cannot show that he was prejudiced due to
counsel’s failure to introduce cumulative evidence. Thus, Ground Three will be denied.
D.

Ground Four
In his fourth ground for relief, Reed argues that the State violated Brady by failing to

provide the defense with tape-recorded communications between a police dispatcher and Officer
Tesreau. He contends that this tape would show that Officer Tesreau did not chase after Reed,
and would also undermine Warden’s credibility as a witness.
At trial, Officer Tesreau testified that, after arriving at the first house, he received
information that the suspect had fled and was headed north. (Doc. 15-1 at 70.) Officer Tesreau
stated that he then “conducted a foot patrol in the area.” Id. Officer Tesreau testified that he was
“walking around the neighborhood,” when he received additional information from someone in
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the neighborhood. Id.
Warden testified that, when he saw Reed flee down an alley, he yelled out to “one of” the
two officers that had pulled up. Id. at 57. Warden stated that “one of the officers” then “ran
down the alley.” Id.
Reed raised this claim in the post-conviction proceedings. The motion court found that
the tape showed that Officer Tesreau was breathing heavily, therefore supporting the State’s
theory that he chased Reed on foot. (Doc. 15-7 at 156.) The Missouri Court of Appeals held that
the record refutes Reed’s allegation that the dispatch recording is inconsistent with Warden’s
testimony. (Doc. 15-1- at 11.) The court stated that Warden “did not testify that he told Officer
Tesreau that Movant ran down an alley,” nor did he testify that Officer Tesreau was the officer
who ran down the alley.” Id. As such, the dispatch recording would not have impeached
Warden’s testimony. Id. The court also rejected Reed’s claim that the recording would have
undermined Officer Tesreau’s testimony because the communication suggested that Officer
Tesreau was walking around the area, rather than chasing Reed. Id. The court held that “the
communication between Officer Tesreau and the dispatcher in which Officer Tesreau is ‘walking
around the area’ is consistent with his testimony regarding his initial pursuit of” Reed. Id. at 12.
“To establish that a Brady violation undermines a conviction, a convicted defendant must
make each of three showings: (1) the evidence at issue is favorable to the accused, either because it
is exculpatory, or because it is impeaching, (2) the state suppressed the evidence, either willfully or
inadvertently, and (3) prejudice ensued.” Skinner v. Switzer, 562 U.S. 521, 536 (2011).
The State courts determined that the record refuted Reed’s claim that the dispatch
recording was favorable to him as impeachment evidence. This finding is supported by the
record. Reed is unable to demonstrate a Brady violation if the recording was not favorable to the
defense. Because the State court’s determination was not based upon an “unreasonable
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determination of the facts in light of the evidence” or “an unreasonable application of, clearly
established Federal law,” Ground Four will be denied.
E.

Ground Five
In his fifth ground for relief, Reed argues that the Missouri Supreme Court erred in denying

his state petition for habeas corpus under Missouri Supreme Court Rule 91 without stating the
reasons for its decision. Reed believes that he “demonstrated cause and prejudice” to overcome
the State’s doctrine of procedural default. (Doc. 1-1 at 16.)
The United States Supreme Court has held that “‘federal habeas corpus relief does not lie
for errors of state law” and that “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990) and citing Pulley v. Harris, 465 U.S.
37, 41 (1984)).
Reed’s claim challenging the opinion of the Missouri Supreme Court is not cognizable in
the instant federal habeas petition. Thus, Ground Five will be denied.
F.

Ground Six
In his sixth ground for relief, Reed argues that he is entitled to habeas relief due to the

“cumulative effect of all the alleged errors.” (Doc. 1-1 at 16.)
The Eighth Circuit has held “a habeas petitioner cannot build a showing of prejudice on a
series of errors, none of which would by itself meet the prejudice test.” Middleton v. Roper, 455
F.3d 838, 851 (8th Cir. 2006) (quoting Hall v. Luebbers, 296 F.3d 685, 692 (8th Cir. 2002)).
Thus, Ground Six is not cognizable in this action and will be denied.

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G.

Grounds Seven through Ten
In grounds seven through ten, Reed raises ineffective assistance of trial counsel claims that

he failed to raise during the state post-conviction proceedings. Respondent argues that these
claims are, therefore, procedurally defaulted.
Reed does not contest that he failed to raise these claims before the state courts. Instead,
Reed argues that his procedural default should be excused under Martinez v. Ryan, 566 U.S. 1
(2012), because post-conviction counsel was ineffective in failing to raise the claims.
The Supreme Court held in Martinez that:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial review of collateral proceeding, a procedural default will not bar
a federal habeas court from hearing a substantial claim of ineffective assistance at
trial if, in the initial review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.
566 U.S. at 17.
To satisfy Martinez, Reed must show that his counsel in the initial post-conviction
proceeding was ineffective under the standards of Strickland. Id. at 14. He must also show “that
the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say
that the [petitioner] must demonstrate that the claim has some merit.” Id. As for what amounts
to a “substantial” claim, the Supreme Court in Martinez explained “that the prisoner must
demonstrate that the claim has some merit. Id. (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)
(describing the standards for certificates of appealability to issue).) Under 28 U.S.C. §
2253(c)(2), a certificate of appealability may issue only if “a petitioner has made a substantial
showing of the denial of a constitutional right.” “A substantial showing is a showing that issues
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).
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The Court will, therefore, examine the underlying ineffective assistance of trial counsel
claims asserted in grounds seven through ten to determine if they have “some merit” to excuse
Reed’s procedural default.
Ground Seven
In his seventh ground for relief, Reed argues that trial counsel was ineffective for failing to
request new counsel at a post-trial hearing.
After Reed was found guilty, he alleged that trial counsel was ineffective for failing to call
Detective Leonard Blansitt and Officer John Pierce as witnesses. The trial court heard testimony
from both witnesses in order to determine whether there was probable cause to believe Reed had
received ineffective assistance of counsel. (Doc. 15-1 at 94-113.) The court found that these
witnesses did not support Reed’s defense theory and provided no “meaningful contradiction” of
Officer Tesreau’s trial testimony. Id. at 111. The court concluded that there was no probable
cause to believe Reed had received ineffective assistance of trial counsel. Id. at 113.
Reed argues that trial counsel had a conflict of interest because the testimony at the
hearing could have established that trial counsel was ineffective. Reed’s claim lacks merit. The
purpose of the post-trial hearing was simply for the trial court to determine if there was probable
cause to believe that Reed had received ineffective assistance of counsel. The hearing did not
affect Reed’s ability to litigate his ineffective assistance of trial counsel claims in the
post-conviction proceedings. Reed is unable to demonstrate prejudice under Strickland.
Ground Seven does not have “some merit” as required by Martinez. Reed has not,
therefore, established cause to avoid the procedural bar preventing consideration of the merits of
this claim.
Accordingly, Ground Seven will be denied.

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Ground Eight
In his eighth ground for relief, Reed argues that trial counsel was ineffective for failing to
object to the prosecutor’s use of an evidence envelope during his cross-examination of Officer
Pierce at a post-trial hearing. The envelope indicated Officer Pierce had packaged and labeled the
evidence seized from the scene. Reed argues this is inconsistent with Officer Tesreau’s testimony
at trial that he handled the evidence.
As previously discussed, the purpose of the post-trial hearing at issue was to determine if
there was probable cause for Reed’s ineffective assistance of trial counsel claims. If counsel had
objected to the prosecutor’s use of the evidence envelope, it would not have changed the outcome
of that proceeding, nor would it have affected the outcome of the trial. Ground Eight does not
have “some merit” as required by Martinez. Thus, Reed has not established cause to avoid the
procedural bar of this claim. Ground Eight will be denied.
Ground Nine
In his ninth ground for relief, Reed argues that trial counsel was ineffective for failing to
object to the admission of Reed’s clothes and the hammer used in the burglary. Reed contends
that Officer Tesreau falsely testified that he seized these items, when it was actually Officer Pierce
who seized them.
Reed’s claim lacks merit. First, the record does not establish that Tesreau falsely testified.
Officer Tesreau described the seizure process generally, testifying that “we take the clothes for
burglaries, to maybe get DNA off of it,” place it in an evidence bag, and transport it to the
department lab for analysis. (Doc. 15-1 at 72.) He testified that, in the instant case, the evidence
“was seized and taken to the lab.” Id. When later asked if he seized and packaged the hammer in
this case, Officer Tesreau testified “Yes, sir, I did.” Id. at 73. After trial, Officer Pierce testified
that he collected evidence from Officer Tesreau and processed it. Although Officer Tesreau’s
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testimony may be unclear as to whether he personally bagged, sealed, and delivered all of the
seized evidence or if other officers assisted in this process, it is not inconsistent with Officer
Pierce’s testimony.
Further, even if counsel had objected to the admission of the evidence on the basis of the
chain of custody, this would not have affected the outcome of the trial. At most, the objection
would have been sustained, and the State would have introduced additional evidence to clarify the
chain of custody. Thus, Ground Nine does not have “some merit” as required by Martinez, and
Reed cannot established cause to avoid the procedural bar of this claim. Ground Nine will be
denied.
Ground Ten
In his tenth ground for relief, Reed argues that trial counsel was ineffective for failing to
impeach Officer Tesreau about perceived inconsistencies concerning the evidentiary chain of
custody involved with the clothes and hammer seized during the investigation. The Court has
found that Officer Tesreau’s testimony was consistent with the testimony of Officer Pierce. As
such, an effort to impeach Officer Tesreau regarding the chain of custody would not have led to the
exclusion of the evidence. Thus, Ground Ten does not have “some merit” as required by
Martinez, and will be denied.
V. Certificate of Appealability
To grant a certificate of appealability, a federal habeas court must find a substantial
showing of the denial of a federal constitutional right. See 28 U.S.C. § 2253(c)(2); Hunter v.
Bowersox, 172 F.3d 1016, 1020 (8th Cir. 1999). A substantial showing is established if the issues
are debatable among reasonable jurists, a court could resolve the issues differently, or the issues
deserved further proceedings. See Cox, 133 F.3d at 569. In this case, Reed has failed to make a
substantial showing of the denial of a constitutional right. The undersigned is not persuaded that
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the issues raised in his Petition are debatable among reasonable jurists, that a court could resolve
the issues differently, or that the issues deserve further proceedings.
Accordingly, no Certificate of Appealability shall be issued.
ORDER
IT IS HEREBY ORDERED, ADJUDGED and DECREED that the instant Petition for
a Writ of Habeas Corpus under 28 U.S.C. §2254 be denied and be dismissed with prejudice by
separate judgment entered this date.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Petitioner be denied a
Certificate of Appealability if Petitioner seeks to appeal this Judgment of Dismissal.

s/Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 1st day of March, 2019.

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