Stallone v. Wallace

Filing 35

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioners Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are DISMISSED with prejudice. A separate Order of Dismissal w ill accompany this Memorandum and Order.IT IS FURTHER ORDERED that because Petitioner cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). Signed by District Judge Jean C. Hamilton on 10/27/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

VIRGIL A. STALLONE,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 4:15CV1889 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Missouri State prisoner Virgil A. Stallone’s pro se
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and
ready for disposition.
On June 9, 2011, a jury in the Circuit Court of St. Louis County, Missouri, found
Petitioner guilty of two counts of first-degree statutory sodomy, two counts of first-degree child
molestation, two counts of first-degree sexual misconduct, and one count of second-degree child
molestation. On July 15, 2011, Petitioner was sentenced to two terms of twenty five years’
imprisonment, two terms of fifteen years’ imprisonment, and three terms of one year
imprisonment, with all terms to run concurrently. The Missouri Court of Appeals affirmed the
convictions and sentence. State v. Stallone, 376 S.W.3d 705 (Mo. App. 2012). Petitioner
thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule
29.15, which was denied after an evidentiary hearing. The Missouri Court of Appeals affirmed
the denial of post-conviction relief. Stallone v. State, 464 S.W.3d 279 (Mo. App. 2015).
Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston,

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Missouri. As the Court construes the instant petition for writ of habeas corpus, Petitioner raises
the following twenty-five claims for relief:
(1)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to interview or present witnesses;

(2)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to oppose the State’s joinder of charges;

(3)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to object to the use of the girls’ testimony, signed
statements and videos;

(4)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to secure documents and material from Petitioner’s prior
counsel;

(5)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to allow Petitioner input during jury selection;

(6)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to impeach the State’s witnesses with conflicting statements
they made to the police, to the CAC representative, during the preliminary
hearing, or during the trial itself;

(7)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to object to the State’s use of hearsay, leading questions,
and perjured testimony;

(8)

That Petitioner received ineffective assistance of counsel, in that trial
counsel attempted to prohibit Petitioner from testifying at trial;

(9)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to present college records demonstrating Petitioner did not
meet his wife until 1996;

(10)

That Petitioner received ineffective assistance of counsel, in that trial
counsel operated under a conflict of interest and encouraged Petitioner to
plead guilty;

(11)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to investigate the propensity of the State’s witnesses to lie;

(12)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to talk to Petitioner’s previous employers regarding his
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character around children;
(13)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to obtain the victims’ school records, or have them
evaluated by an “independent psychological agency”, to show they never
exhibited symptoms of sexual abuse;

(14)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to obtain an interpreter to allow trial counsel to speak with
Petitioner’s witnesses;

(15)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to aid Petitioner when he complained he could not hear
everything that transpired during his trial due to a hearing impairment;

(16)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to assert at trial that Petitioner was coerced into writing a
statement for the police;

(17)

That Petitioner received ineffective assistance of counsel, in that trial
counsel failed to present to the jury evidence that there was over an hour
missing from the taped interrogation;

(18)

That Petitioner received ineffective assistance of counsel, in that appellate
counsel failed to raise the joinder issue on direct appeal;

(19)

That Petitioner received ineffective assistance of counsel, in that appellate
counsel failed to raise on direct appeal the fact that victim N.B. testified
Petitioner did nothing to her;

(20)

That the trial court erred in allowing the joinder of charges;

(21)

That the trial court erred in admitting the girls’ testimony and statements;

(22)

That the trial court erred in admitting Petitioner’s taped and signed
statements;

(23)

That Petitioner was denied due process of law, as his jury did not represent
a fair cross-section of the St. Louis County community;

(24)

That Petitioner was denied due process of law, as he was denied his right
to confront and cross-examine witnesses when the prosecutor introduced
hearsay testimony; and

(25)

That Petitioner was denied due process of law, as the indictment was
insufficient.
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The Court will address the claims in turn.
DISCUSSION
I.

Claims Addressed on the Merits
A.

Ground 21

As stated above, in Ground 21 of his petition Petitioner asserts that the trial court erred in
admitting the girls’ testimony and statements. Petitioner raised this claim on direct appeal of his
conviction.

The Missouri Court of Appeals first described the factual and procedural

background of Petitioner’s case as follows:
M.B. is Defendant’s 1 stepdaughter. J.B. and N.B. are M.B.’s children
and Defendant’s granddaughters, who were eight and seven at the time of trial.
V.R. is Defendant’s sister-in-law. The sexual offenses at issue occurred between
1995-1998, 2000-2001, and 2008-2009.
On March 1, 2009, V.R. was going to a birthday party for Defendant’s
grandson. Defendant came alone to pick up V.R. from her house. While in her
house, Defendant touched V.R.’s breasts and told her that he loved her. V.R. put
Defendant’s hands down at his side, pushed him back, and said, “You are my
sister’s husband.” The following day, March 2, 2009, V.R. told her sister what
had happened. V.R. called the police and reported Defendant. Shortly
thereafter, Defendant was charged with sexual misconduct, read his Miranda
rights, and transported to the police station.
At the police station, Defendant signed a waiver of his Miranda rights and
admitted to touching V.R.’s breasts. He also admitted that he had fondled M.B. a
few years earlier. Defendant wrote a statement admitting that he had touched
V.R.’s breasts. Police attempted unsuccessfully to contact M.B. to investigate the
incident. In August 2009, M.B. finally spoke with police and revealed that she
was sexually abused when she was growing up. M.B. was uncertain whether she
wanted to prosecute.
On November 5, 2009, M.B. called police and reported that J.B. and N.B.
had stated that Defendant had touched them inappropriately. M.B. came to the
station the next day and told police what the victims had reported. On November
18, 2008 (sic), Beverly Tucker (Tucker) from the Child Advocacy Center (CAC)
interviewed J.B. and N.B. On November 19, 2009, police interviewed Defendant
1 Petitioner is referred to as “Defendant” by the Missouri Court of Appeals on direct appeal.

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concerning the reported incidents.
On September 3, 2010, Defendant was charged by information in lieu of
indictment with three counts of first-degree statutory sodomy (Counts I-III), two
counts of first-degree sexual molestation (Counts IV-V), three counts of
first-degree sexual misconduct (Counts VI-VIII), and one count of second-degree
child molestation (Count IX) against four separate victims: M.B., V.R., J.B., and
N.B. The trial court entered an order of nolle prosequi as to Count II and ordered
that the remaining counts be renumbered accordingly. Following the close of all
evidence, instructions, and argument by counsel, the jury found Defendant guilty
on all counts, except Count VII. Defendant was sentenced to a total of
twenty-five years’ imprisonment.
(Resp. Exh. E, PP. 2-3). The Missouri Court of Appeals went on to deny Petitioner’s claim as
follows:
In his first point, Defendant argues the trial court erred in admitting J.B.’s
and N.B.’s out-of-court statements into evidence because the statements did not
provide sufficient indicia of reliability with respect to the time, content, and
circumstances of the statements and were therefore inadmissible as substantive
evidence under Section 491.075.
Specifically, Defendant challenges the
admission of the testimony of M.B., Defendant’s stepdaughter, and Tucker, an
interviewer with the CAC, as to the victims’ statements concerning the alleged
offenses as well as the admission of State’s Exhibit 4, the videotape of J.B.’s
forensic interview. We disagree.
Review of the trial court’s decision to admit a child’s statements under
Section 491.075 is for an abuse of discretion. State v. Sanders, 126 S.W.3d 5, 13
(Mo. App. W.D. 2003). Pursuant to Section 491.075:
1.

A statement made by a child under the age of fourteen relating to an
offense under chapter 565, 566 or 568, RSMo, performed with or on a child by
another, not otherwise admissible by statute or court rule, is admissible in
evidence in criminal proceedings in the courts of this state as substantive
evidence to prove the truth of the matter asserted if:
(1) The court finds, in a hearing conducted outside the presence of the
jury that the time, content and circumstances of the statement
provide sufficient indicia of reliability; and
(2) (a)
The child testifies at the proceedings;

Section 491.075.1. Missouri courts have adopted a totality of the circumstances
test to determine the reliability of a child’s out-of-court statements for the
purposes of Section 491.075, including consideration of several non-exclusive
factors: (1) spontaneity and consistent repetition; (2) the mental state of the
declarant; (3) the lack of a motive to fabricate; and (4) knowledge of subject
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matter unexpected of a child of similar age. State v. Sprinkle, 122 S.W.3d 652,
661 (Mo. App. W.D. 2003). The lapse of time between when the acts occurred
and when the victim reported them is also a factor to consider. Id.
With regard to the first factor, spontaneity and consistent repetition of the
statements, Defendant argues that the victims’ disclosures were in response to
coercive questioning by someone “whose viewpoint was colored by antipathy
toward [Defendant].” In determining the admissibility of the statements under
Section 491.075, the trial court must only rely on the testimony from the 491
hearing, and in reviewing the decision, we must do so as well. Id. Here, based
on our review of the hearing transcript, the victims’ disclosures to M.B. were
spontaneous. M.B. testified that N.B. mentioned the scratching on her abdomen
of her own accord after it happened and without coaxing. Similarly, M.B.
testified that on a separate occasion J.B. volunteered that Defendant had touched
her after M.B. and J.B.’s father had asked J.B. about a schoolmate inappropriately
touching her in her private areas. Contrary to Defendant’s assertions, there is no
support in the hearing transcript that M.B.’s (sic) responses were the result of
leading questions or suggestion.
With regard to the second factor, the mental state of the declarant,
Defendant incorrectly argues that “there was no evidence that the [victims]
experienced any trauma surrounding their relationship with [him], or anything
occurring around the time of the alleged acts.” At the time of her initial
disclosure, N.B. complained that she suffered a scratch from her zipper when
Defendant held her too tight “where she peepees from.” Moreover, nothing from
the hearing transcript suggests that the victims suffered no trauma when
Defendant touched them inappropriately.
Finally, with regard to the third factor, motive to fabricate, and the fourth
factor, use of terminology unexpected of a child of a similar age, again nothing
from the hearing transcript suggests that the victims’ out-of-court statements were
unreliable or unexpected given the victims’ ages.
Considering the four applicable factors and the totality of the
circumstances, J.B.’s and N.B.’s statements to M.B. and J.B.’s statements to
Tucker in the forensic video provided sufficient indicia of reliability. Finally,
Defendant argues that he would have been acquitted on Counts II through IV
without the hearsay statements. The record proves otherwise. We find no abuse
of discretion. Point I is denied.
(Id., PP 3-5).
With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in
pertinent part as follows:

6

(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 B
(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).
Upon consideration, the Court finds the decision of the Missouri State court did not
involve an unreasonable application of clearly established federal law. “[I]t 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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, “[i]n
conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.”

Id. at 68 (citations omitted).

The

admissibility of evidence is a matter of state law, and thus does not form a basis for habeas relief
unless the trial error infringed on a specific constitutional protection 2 , or was so great as to
amount to a denial of due process. Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir.), cert.
denied, 549 U.S. 1079 (2006).
In this case, Missouri law allows for the introduction of hearsay testimony under Mo.
Rev. Stat. § 491.075.3 The Missouri Court of Appeals evaluated the admissibility of J.B.’s and

“Rulings on the admission or exclusion of evidence in state trials rarely rise to the level of a
federal constitutional violation.” Nebinger v. Ault, 208 F.3d 695, 697 (8th Cir. 2000).
3 Missouri law allows a statement by a child under the age of fourteen, or a vulnerable person,
not otherwise admissible by statute or court rule, as substantive evidence to prove the truth of the
matter asserted if the court finds, in a hearing conducted outside the presence of the jury, that the
time, content, and circumstances of the statement provide sufficient indicia of reliability; and the
child or vulnerable person testifies at the proceedings, is unavailable as a witness; or is otherwise
2

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N.B.’s statements to M.B. and Tucker in light of § 491.075, and found that it was not error.
When viewed in consideration of all the evidence, the admission of the statements did not rise to
the level of a specific constitutional violation or amount to a denial of due process.
Furthermore, the admission was not outcome-determinative, in light of the testimony of the
victims at trial and Petitioner’s confession to the crimes charged. The Court therefore will
deny habeas relief on this claim.
B.

Ground 22

As stated above, in Ground 22 of his petition Petitioner asserts the trial court erred in
admitting Petitioner’s taped and signed statements. Petitioner raised this claim on direct appeal
of his conviction, and the Missouri Court of Appeals denied the claim as follows:
In his second point, Defendant argues the trial court erred in overruling his
motion to suppress and in admitting into evidence his statement to police because
said statement was involuntary and induced by implied promises. We disagree.
When reviewing a trial court’s ruling on a motion to suppress, the inquiry
is limited to whether the court’s decision is supported by substantial evidence.
State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). Deference is given to
the trial court’s superior opportunity to determine the credibility of witnesses. Id.
As in all matters, a reviewing court gives deference to the trial court’s factual
findings and credibility determinations, but reviews questions of law de novo. Id.
The test for the voluntariness of a confession is whether, under the totality of the
circumstances, the defendant was deprived of free choice to admit, to deny, or to
refuse to answer and whether physical or psychological coercion was of such a
degree that the defendant’s will was overborne at the time he confessed. Id.
Here, the record reflects that Defendant’s statements were voluntary.
While Defendant asserts that his confession to the acts with J.B. and N.B. was
coerced by implied promises that he would receive counseling and treatment, the
record shows that there was no express or implied promise of leniency made.
State v. Simms, 131 S.W.3d 811, 814 (Mo. App. W.D. 2004) (a confession is
inadmissible if it is procured by a direct or implied promise of leniency).
physically available as a witness but the court finds that the significant emotional or
psychological trauma which would result from testifying in the personal presence of the
defendant makes the child or vulnerable person unavailable as a witness at the time of the
criminal proceeding. Mo. Rev. Stat. § 491.075.
8

Defendant was informed that he was being placed under arrest, but stated that he
wanted to talk to the detectives and cooperate with the investigation. Defendant
admitted that no promises had been made to him and he signed a statement
expressly stating that he had not been threatened or mistreated in any fashion, nor
had any gratuities been promised to him in return for making the statement.
Moreover, he read that portion of the form out loud, and acknowledged that he
understood it. Under the totality of the circumstances, Defendant’s confession to
the acts involving V.R., M.B., J.B. and N.B. was completely voluntary. Point II
is denied.
(Resp.’s Exh. E, PP. 6-7).
As stated above, with respect to federal court review of state court conclusions, 28 U.S.C.
§ 2254 states in pertinent part as follows:
(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 B
(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).
“Coercive police activity is a necessary predicate to the finding that a confession is not
‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”
Thatsaphone v. Weber, 137 F.3d 1041, 1046 (8th Cir.) (internal quotation marks and citations
omitted), cert. denied, 523 U.S. 1130 (1998). As noted above, the state courts concluded that
Petitioner’s inculpatory statements were not coerced by police activity, and on habeas review
this Court “give[s] ‘great weight to the considered conclusions of a coequal state judiciary.’” Id.
at 1047 (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)). This conclusion, supported by the
record, was not based on an unreasonable determination of the facts or an unreasonable

9

application of clearly established federal law. Petitioner’s claim to the contrary is without merit,
and so Ground 22 must be denied.
C.

Ground 1

As stated above, in Ground 1 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to interview or present witnesses. Petitioner
raised this claim before the 29.15 post-conviction motion court, and the court denied the claim as
follows:
10.
In paragraph 8(a)(1) of his Amended Motion Movant 4 alleges
ineffective assistance of counsel based upon trial counsel’s failure to call
character witnesses. Movant claims that as a result, he was prejudiced….
11.
To prevail on his claim of ineffective assistance of counsel for
failure to call character witnesses, Movant must show that counsel failed
to provide reasonably effective assistance, and Movant was thereby
prejudiced. Moore v. State, 927 S.W.2d 939, 943 (Mo. App. 1996).
Absent a showing to the contrary, counsel is presumed to have provided
effective assistance. Id. Counsel will not be found to have been
ineffective for making trial strategy decisions, and the selection of
witnesses is a question of trial strategy. State v. Harris, 854 S.W.2d 853,
857 (Mo. App. E.D. 1993). The decision not to call character witnesses
in Movant’s case is “virtually unchallengeable” as a matter of trial
strategy. Id. In Harris, just as in Movant’s case, the character witnesses
testified at the evidentiary hearing to the defendant’s character, but not
directly to whether the defendant committed the charged crimes. Id. At
the evidentiary hearing, Movant’s trial counsel Kelly Hritz testified that
the decision not to call the character witnesses was intentional trial
strategy.
Additionally, Movant must establish a reasonable probability that
but for any ineffective assistance, the result of the proceeding would have
been different. Case v. State, 780 S.W.2d 681, 682 (Mo. App. S.D.
1989). A court is required to deny post-conviction relief unless the
Movant has succeeded in proving the burden that he was prejudiced by the
ineffective assistance. Frederick v. State, 754 S.W.2d 934, 936 (Mo.
App. E.D. 1988). In Frederick, the motion was denied because the
evidence of appellant’s guilt was “overwhelming.” The court noted, “Not
4 Petitioner is referred to as “Movant” by the 29.15 motion court and the Missouri Court of Appeals on appeal of the
denial of his 29.15 motion.

10

only did the victim, appellant’s adopted daughter, testify in detail to the
three instances of sexual abuse, but the State produced evidence of
admissions made by appellant on separate occasions to his wife, to his
pastor, and to his brothers and sisters.” Id. The evidence in Movant’s
case is even stronger than the overwhelming evidence in Frederick. In
Movant’s case, the victims all testified in detail about the instances of
sexual abuse, and the Movant made a videotaped confession. As in
Frederick, “the failure to investigate and call witnesses to testify to
appellant’s good character and reputation falls far short of undermining
confidence in the verdict….” Id.
(Resp.’s Exh. G, PP. 79-80). Petitioner advanced the claim on appeal of the denial of his Rule
29.15 motion, and the Missouri Court of Appeals denied the claim as follows:
In his first point, Movant alleges the motion court clearly erred in denying
his Rule 29.15 motion for post-conviction relief because he was denied his rights
to effective assistance of counsel and due process of law in that trial counsel failed
to locate, interview, endorse, subpoena, and call as witnesses Mr. Dominic V.
Stallone, Mr. Vito Stallone, Ms. Giovanna Pica, Mr. Mario Pica, and Ms. Mariella
Fisher, and failed to endorse and call as witnesses Ms. Anna Weiskopf, Ms. Maria
Barbera, Ms. Karen Stallone, Ms. Tina Stallone, and Mr. Bartolomeo Stallone.
Movant further argues he was prejudiced by trial counsel’s ineffectiveness
because the witnesses’ testimony would have established the viable defense that
Movant had a good reputation in the community for truthfulness and good moral
character. Movant argues the motion court denied his motion for post-conviction
relief after an evidentiary hearing although he established by a preponderance of
the evidence he was denied his rights. He claims that but for trial counsel’s
ineffectiveness, there is a reasonable probability the trial result would have been
different….
Movant’s three points on appeal allege that he received ineffective
assistance of counsel, both at trial and on appeal. “In order to prove that his
counsel was ineffective, a movant must show that counsel’s performance did not
conform to the degree of skill, care, and diligence of a reasonably competent
attorney and that movant was thereby prejudiced.” Johnson v. State, 333 S.W.3d
459, 463 (Mo. banc 2011) (internal quotation omitted). “To demonstrate
prejudice, a movant must show that, but for counsel’s poor performance, there is a
reasonable probability that the outcome of the court proceeding would have been
different.” Id. “This Court presumes that counsel acted professionally in
making decisions and that any challenged action was a part of counsel’s sound
trial strategy.” Id.
The crux of Movant’s appeal lies in trial strategy decisions made by his
trial counsel. “Ineffective assistance of counsel will not lie where the conduct
involves the attorney’s use of reasonable discretion in a matter of trial strategy,
11

and it is the exceptional case where a court will hold a strategic choice unsound.”
Barton v. State, 432 S.W.3d 741, 749 (Mo. banc 2014) (quoting State v. White,
798 S.W.2d 694, 698 (Mo. banc 1990)).
Reasonable choices of trial strategy, no matter how ill-fated they appear in
hindsight, cannot serve as a basis for a claim of ineffective assistance. Anderson
v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). “Where counsel has investigated
possible strategies, courts should rarely second-guess counsel’s actual choices.”
Id. “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable[.]” Strickland v.
Washington, 466 U.S. 668, 690 (1984). “It is not ineffective assistance of
counsel to pursue one reasonable trial strategy to the exclusion of another
reasonable trial strategy.” Anderson, 196 S.W.3d at 33.
1)

Point I: Counsel’s failure to investigate and call witnesses

Specifically, in his first point, Movant alleges trial counsel was ineffective for
failing to call certain witnesses to testify about Movant’s reputation for
truthfulness and good moral character. Movant alleges trial counsel failed to
locate, interview, endorse, subpoena, and call as witnesses Mr. Dominic V.
Stallone, Mr. Vito Stallone, Ms. Giovanna Pica, Mr. Mario Pica, and Ms. Mariella
Fisher, and failed to endorse and call as witnesses Ms. Anna Weiskopf, Ms. Maria
Barbera, Ms. Karen Stallone, Ms. Tina Stallone, and Mr. Bartolomeo Stallone.
Movant claims that, but for trial counsel’s ineffectiveness, there was a reasonable
probability the trial result would have been different.
To be effective, trial counsel must satisfactorily investigate his client’s case.
State v. Butler, 951 S.W.3d 600 (Mo. banc 1997). Counsel must make “a
reasonable decision not to conduct a particular investigation.” Kenley v.
Armontrout, 937 F.2d 1298, 1304 (8th Cir.1991). “[S]trategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgment supports the limitations on investigation.”
Strickland, 466 U.S. at 690-91. The selection of witnesses is a question of trial
strategy. State v. Harris, 854 S.W.2d 853, 857 (Mo. App. E.D. 1993). A
decision not to call a witness as a matter of trial strategy is virtually
unchallengeable. Id. Courts have found that the failure to call character
witnesses does not constitute ineffective assistance of counsel, either because the
decision was one of trial strategy or the decision was not prejudicial. Id.
Where a person claims trial counsel was ineffective for failing to investigate
and call witnesses, the person must establish (1) who the witnesses are; (2) what
their testimony would have been; (3) whether trial counsel knew or should have
known the witnesses existed; (4) that the witnesses would have testified if called;
and (5) that the witnesses would have established a viable defense. State v.
Harris, 870 S.W.2d 798 (Mo. banc 1994).

12

The motion court denied Movant’s post-conviction relief on this point
because trial counsel had testified she intentionally decided not to call the
reputation witnesses as part of her trial strategy. Additionally, Movant did not
establish that, had the witnesses testified, there is a reasonable probability the
result of the proceeding would have been any different. The court further found
the evidence in Movant’s case was overwhelming, given that all the victims
testified and Movant made a video recorded confession. The court noted that the
evidence against Movant here is even stronger than the overwhelming evidence in
Frederick v. State, 754 S.W.2d 934, 936 (Mo. App. E.D. 1988) (denying
post-conviction relief for ineffective assistance of counsel where the evidence of
appellant’s guilt was “overwhelming” because the victim, appellant’s adopted
daughter, testified in detail to three instances of sexual abuse, and the State
produced evidence of admissions made by appellant on three separate occasions to
his wife, his pastor, and his brothers and sisters).
During trial, Movant testified in his own defense. He presented no other
witnesses. After trial, Movant assured the court, under oath, that trial counsel
had done everything he had asked. He had no complaints about her services, he
was satisfied with her services, and he felt it was appropriate that the court find
that counsel had done her job. At the evidentiary hearing, however, Movant said
that he had lied to the court when he was asked those questions.
During the evidentiary hearing, Movant’s trial counsel testified that there had
been some language barriers with some of the witnesses and it had been difficult
speaking with them. Trial counsel’s investigator questioned nearly all of the
family members whose names Movant had provided. Trial counsel testified she
discussed with Movant whether it would be a good idea to call his family
members as character witnesses. Trial counsel believed it would not be helpful
to call them and discussed her reasons with Movant. Movant agreed that he did
not want to call his family members as witnesses. Trial counsel did not believe
that Movant’s family members would be very persuasive as to Movant’s
character. Most of the family’s testimony revealed that his family members
could testify as to Movant’s reputation within the family, not the community at
large. None of the witnesses could testify directly to the issue of whether Movant
committed the crimes charged. Thus, Movant did not prove that any of his
proposed witnesses would have provided a viable defense. Additionally, none of
the witnesses who testified at the evidentiary hearing testified that they would
have been available and willing to testify at Movant's trial.
At the evidentiary hearing, Anna Weiskopf, Movant’s niece, testified that she
had known Movant her entire life of forty-seven years. She testified that she did
not know if Movant had a reputation in the community, but within their family,
she was aware of his reputation for good moral character and putting his family
first. Giovanna Pica, Movant’s older sister, testified that although she did not
understand English very well, her brother told the truth and was very religious.
Next, Movant’s nephew Vito Stallone testified Movant had a reputation for
13

truthfulness and was a good moral person, who was always helpful. Vito
Stallone testified that Movant was “always there for anyone and everyone” and
showed affection, love, and concern for the family over the years. He admitted
that he only knew Movant’s reputation in the family community.
Additionally, Movant’s nephew Mario Pica testified at the evidentiary hearing
that Movant had a reputation for truthfulness because he was “honest with
everybody” and had good moral character because he helped everyone that needed
help. He admitted that he was not aware of Movant helping people outside of the
family, but he was sure he did. When asked whether Movant’s videotaped and
written confessions to molesting his two granddaughters and stepdaughter would
change his opinion of Movant’s good moral character, Mr. Pica testified, “I’d still
love him, but I’m sure it’d have some kind of effect.”
Movant’s sister, Maria Barbera, testified that Movant never lied to her and
was ready to help every time the family needed. She said Movant was a good
person, but she did not know what “reputation” meant. Movant’s sister-in-law
Tina Stallone testified that Movant had a good reputation for telling the truth and
had good moral character. She acknowledged that a person with good moral
character would not grope his wife’s sister. Despite his confessions, however,
she did not believe Movant did those things, she said. Maria Fisher, Movant’s
niece, testified that Movant had a reputation in the community for truthfulness and
as a good moral person because if that is how a person is with the family, she felt
like it had to extend out to others.
Movant’s sister-in-law Karen Stallone testified that Movant had a reputation
for being a truthful person with good moral character, at least in the family. She
did not know his reputation among his own neighbors. Movant’s brother
Bartolomeo Stallone testified that Movant had a reputation as a truthful person
and as a good moral person. Movant’s son Dominic Stallone, Sr., testified that
Movant had a reputation for truthfulness and that he always had taken Movant’s
advice to heart. Dominic Stallone, Sr., testified that Movant was “very moral”
based on the fact that Movant had always been close to his family and gone to
church.
Additionally, Robert Thies, an investigator for the public defender, testified
that he had investigated most of Movant’s family members. He spoke with about
twelve of them. Although Vito Stallone told Mr. Thies that “he didn't have time
for this,” others wrote letters. Mr. Thies said the family members said Movant
had good character and good morals.
Movant never told trial counsel where he had worked or the names of people
with whom he worked. Nor did he give counsel the names of any of his
neighbors. Trial counsel told Movant that it was ultimately his decision as to
whether the witnesses should be called, but she did not believe that his family
members would be helpful. Ultimately, Movant agreed to follow trial counsel’s
14

advice and not call family members as character witnesses. If Movant changed
his mind, trial counsel would have called the character witnesses. Movant never
told trial counsel that he wanted his family members called.
Additionally, the overwhelming evidence of guilt in the case against Movant
shows that even if trial counsel had called the named witnesses to testify at trial,
the result of trial would not have been different. The victims testified as to the
sexual abuse, and Movant made a recorded confession. As the motion court also
found, similar to Frederick, “the failure to investigate and call witnesses to testify
to appellant’s good character and reputation falls far short of undermining
confidence in the verdict….” 754 S.W.2d at 936. Even if many of Movant’s
relatives had testified that Movant had a reputation for truthfulness, Movant’s
own testimony demonstrated his willingness to lie when placed in a difficult
situation. At one point, he told the court he was happy with his trial counsel’s
representation, but then later he said trial counsel was ineffective. At one point,
Movant confessed to committing the crimes of which he was accused, but then
later Movant told a different story and testified that he was not guilty. Regardless
of what Movant’s family testified about his reputation for truthfulness and good
moral character, their testimony would not have provided Movant with a viable
defense.
We find the motion court did not err in denying Movant’s post-conviction
relief alleging ineffective assistance of trial counsel based on trial counsel’s
strategic decision not to call Movant’s family members. Movant agreed with that
decision during trial, Movant failed to prove his family members would have been
available and willing to testify, and Movant failed to prove that they would have
provided a viable defense in light of Movant’s recorded confessions. Movant’s
first point is denied.
(Resp. Exh. K, PP. 2-3, 4-10).
As noted above, with respect to federal court review of state court conclusions, 28 U.S.C.
§ 2254 states in pertinent part as follows:
(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 B
(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.
15

28 U.S.C. § 2254 (d).
Under federal law, in order to prevail on his ineffective assistance of counsel claim,
Petitioner must show that his attorney’s performance was “deficient,” and that the deficient
performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984).

Counsel is “strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. To overcome this presumption, Petitioner must prove that, “in light of
all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Id.
Even if Petitioner satisfies the performance component of the analysis, he is not entitled
to relief unless he can prove sufficient prejudice. Id. at 694. To do so, Petitioner must prove
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
Upon consideration, the Court finds that with this claim Petitioner fails to satisfy either
prong of the Strickland test. With respect to deficient performance, the Court notes that during
the evidentiary hearing on Petitioner’s post-conviction motion, Ms. Hritz testified that she
instructed her investigator to speak to a number of potential witnesses, whose names were
provided by Petitioner. (Resp. Exh. F, P. 131). She testified that despite any language barriers,
the investigator was able to interact with the witnesses. (Id., PP. 132-33). Ms. Hritz then
discussed with Petitioner the possibility of putting the character witnesses on the stand at trial.
(Id., P. 135). Her opinion was that presenting the witnesses would not be helpful, and Petitioner
agreed. (Id., PP. 135-36, 139-41). The 29.15 motion court found Ms. Hritz’s testimony to be
16

credible, and that finding was not unreasonable in light of the evidence presented in state court.
Under these circumstances, this Court does not find that trial counsel’s failure to call witnesses
on Petitioner’s behalf at trial fell outside the wide range of professionally competent assistance
sanctioned by Strickland. See Id. at 690 (“strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable”).
With respect to prejudice, the Court finds that under the instant facts, it cannot be said
that Petitioner was prejudiced by counsel’s failure to call the witnesses. Rather, as found by the
post-conviction motion court and the Missouri Court of Appeals, the evidence in Petitioner’s
case was overwhelming, as not only did the victims testify in detail about the instances of sexual
abuse, but Petitioner himself made a videotaped confession. Under these circumstances, the
Missouri State courts’ finding that the result of Petitioner’s proceeding would likely have been
the same even absent counsel’s alleged error was not 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 in the State court proceeding. Ground 1 of Petitioner’s § 2254 petition
must therefore be denied.
D.

Grounds 2 and 18

As stated above, in Ground 2 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to oppose the State’s joinder of charges. In
Ground 18, Petitioner asserts he received ineffective assistance of counsel, in that appellate
counsel failed to raise the joinder issue on direct appeal. Petitioner raised these claims before
the 29.15 post-conviction motion court, and the court denied the claims as follows:
12.
Movant also claims that trial counsel was ineffective for declining
to oppose the State’s joining of charges against Movant and requesting a
severance, and that appellate counsel was ineffective for failing to raise the
joinder issue on direct appeal.
17

In order to show that trial counsel was ineffective for [not]
opposing joinder and declining to request a severance, Movant must show
that counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). The issue is not whether counsel may have obtained
severance if it were requested, but whether counsel was incompetent in
failing to move for severance. Smith v. State, 628 S.W.2d 393, 395 (Mo.
App. 1982). Counsel’s decision not to move for severance is not
ineffective assistance if it is trial strategy, and the decision is presumed to
be sound trial strategy. State v. Stepter, 794 S.W.2d 649, 656 (Mo. banc
1990); Willen v. State, 648 S.W.2d 134, 136-37 (Mo. App. E.D. 1983).
Movant’s trial counsel, Kelly Hritz, explained that it was trial strategy not
to request a severance in order to receive a not guilty on all charges instead
of giving the State three attempts at a guilty verdict. Because counsel
weighed the option of moving for severance, courts will not second guess
that tactical decision. Id.; Smith, 628 S.W.2d at 395. Movant is also
unable to show that the failure to sever prejudiced his defense. State v.
Childers, 801 S.W.2d 442, 447 (Mo. App. E.D. 1990). As in Childers,
the jury was instructed to consider the evidence and law applicable to each
count. Nothing in the record indicates that the jury was unable to
appropriately apply the evidence and law to Movant’s charges. State v.
Fowler, 758 S.W.2d 99, 101 (Mo. App. E.D. 1988). The Movant did not
provide any evidence at the evidentiary hearing that he was prejudiced by
trial counsel’s strategy decision not to request severance.
Movant faces a high standard in showing that appellate counsel
was ineffective. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc
2005). Ineffective assistance of appellate counsel follows the plain error
rule: the issue not raised on appeal must be so substantial that it amounts
to “a manifest injustice or a miscarriage of justice.” Id. “[M]ovant must
establish that counsel failed to raise a claim of error that was so obvious
that a competent and effective lawyer would have recognized and asserted
it.” Tisius v. State, 183 S.W.3d 207, 215 (Mo. banc 2006). In addition,
the Movant must show that he was prejudiced—that the error was so
serious that it creates a reasonable probability that the outcome of the
appeal would have been different. Id.
Movant cannot meet the high standard for showing ineffective
assistance of appellate counsel for declining to raise the severance issue on
appeal. Appellate counsel is not ineffective for declining to raise an issue
where the trial court had broad discretion. Moss v. State, 10 S.W.3d 508,
515 (Mo. banc 2000). Movant’s claim of ineffective assistance falls into
that category, as “severance is a matter of trial court discretion whether or
not requested by defense [counsel.”]

18

(Resp.’s Exh. G, PP. 80-1). Petitioner advanced the claim on appeal of the denial of his Rule
29.15 motion, and the Missouri Court of Appeals denied the claim as follows:
Second, Movant alleges the motion court clearly erred in denying his Rule
29.15 motion for post-conviction relief because he was denied his rights to
effective assistance of counsel and due process of law in that trial counsel failed to
oppose the State’s joining the charges against Movant in one indictment and in
not moving for Counts I-IV to be severed from Counts V-VIII, Count V severed
from Counts I-IV and VI-VIII, and Counts VI-VIII severed from Counts I-IV and
V. Movant argues he was prejudiced because, had the court ordered three trials,
the jurors would not have been confused by the testimony from the State’s
witness, M.B., who testified in three different roles at the same trial: an
eyewitness, a statement witness, and a complaining witness. Movant alleges that,
had the jurors not been confused by M.B.’s testimony, there is a reasonable
probability the trial result would have been different.
Similar to his second point, Movant alleges in his third and final point that
the motion court clearly erred in denying his motion for post-conviction relief
because he was denied the same rights in that appellate counsel failed to raise the
issue on direct appeal that was so obvious from the record that a competent and
effective lawyer would have recognized and asserted it. Movant alleges the trial
court plainly erred, causing manifest injustice and a miscarriage of justice, in sua
sponte allowing the State to join the charges against Movant in one indictment
and in not severing Counts I-IV from Counts V-VIII, Count V from Count I-IV
and VI-VIII, and Counts VI-VIII from Counts I-IV and V. Movant alleges he
was prejudiced by appellate counsel’s ineffectiveness because there was a
reasonable probability that the Court of Appeals would have ordered separate
trials had appellate counsel raised the issue….
2)

Points II and III: Counsel’s failure to object to joinder and failure to
attempt to sever charges

Next, Movant alleges errors with regard to trial counsel’s failure to oppose the
State’s joining of the charges against Movant in one indictment and not moving
for severance, and appellate counsel’s similar failure to raise on direct appeal the
trial court’s plain error in allowing the State to join the charges against Movant
into one indictment and not severing the counts against him.
In Movant’s second point, he argues the motion court clearly erred in denying
his motion for post-conviction relief because trial counsel failed to oppose the
State when it joined the charges against him in one indictment, and because trial
counsel failed move for Counts I-IV to be severed from Counts V-VIII, Count V
severed from Counts I-IV and VI-VIII, and Counts VI-VIII severed from Counts
I-IV and V. Movant argues he was prejudiced because, had the court ordered
three trials, the jurors would not have been confused by the testimony from the
19

State’s witness, M.B., who testified in three different roles at the same trial: an
eyewitness, a statement witness, and a complaining witness. Movant alleges that,
had the jurors not been confused by M.B.’s testimony, there is a reasonable
probability that the trial result would have been different.
In his third point, Movant alleges the motion court clearly erred in denying his
motion for post-conviction relief because appellate counsel failed to raise the
issue that the trial court plainly erred, causing manifest injustice and a miscarriage
of justice, in sua sponte allowing the State to join the charges against Movant in
one indictment and in not severing Counts I-IV from Counts V-VIII, Count V
from Count I-IV and VI-VIII, and Counts VI-VIII from Counts I-IV and V.
Movant alleges the (sic) he was prejudiced by appellate counsel’s ineffectiveness
because there was a reasonable probability that the Court of Appeals would have
ordered separate trials had appellate counsel raised the issue.
Movant was charged by indictment with six counts: two counts of
first-degree statutory sodomy against J.B., one count of first-degree statutory
sodomy against N.B., one count of first-degree child molestation against J.B., one
count of first-degree child molestation against N.B., and one count of first-degree
sexual misconduct against V.R.
An information in lieu of indictment
subsequently added three counts: two counts of first-degree sexual misconduct
against M.B. and one count of second-degree child molestation against M.B.
Prior to trial, one of the first-degree statutory sodomy counts against J.B. was
dismissed, and Movant went to trial on the remaining eight counts. The jury was
instructed at trial that Movant was charged with a separate offense in each of the
eight counts and that the counts must be considered separately. The jury found
Movant guilty on seven of the eight counts and acquitted him on one count of
first-degree sexual misconduct against M.B.
Movant argues the offenses with which he was charged were not of similar
character because the victims were of different ages, the offenses were not closely
related in time, and the offenses were not of the same type. Further, Movant pled
that his counsel should have requested severance because the jurors were likely to
confuse the evidence.
During the evidentiary hearing, trial counsel could not recall whether or why
she did not file a motion to sever, but thought it was definitely a strategic
decision. Movant’s trial counsel testified that if she did not file a motion to sever
the charges, it was because the evidence against Movant was extensive and she
felt that one trial instead of three trials was in Movant’s best interest. She
believed Movant had a better chance of a more favorable verdict in one trial
versus several trials. Trial counsel believed Movant had a better chance of
acquittal on one or more counts if they were all tried together rather than facing
several cases with the same evidence. Trial counsel observed that prior to trial,
Movant was not a convicted sex offender. If he had separate trials and was
convicted, his convictions would come into evidence at the later trials when
20

Movant testified. She knew he was adamant about testifying. She observed that
Movant’s case was not two or more cases that were joined together.
The motion court found that trial counsel made a strategic decision not to seek
severance. Additionally, there was nothing to suggest that the jury was unable to
appropriately apply the evidence and law to Movant’s charges.
Missouri Supreme Court Rule 23.05 states that all offenses that are of the
same or similar character may be charged in the same indictment or information in
separate counts. The Revised Statutes of Missouri, Section 545.140.2, similarly
provides that two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offense charged, whether
felonies or misdemeanors or infractions, or any combination thereof, are of the
same or similar character or are based on the same act or transaction or on two or
more acts or transactions connected together or constituting parts of a common
scheme or plan. “Because liberal joinder is favored for the sake of judicial
economy, joinder is appropriate where any of the Section 545.140.2 or Rule 23.05
criteria exist.” State v. McDonald, 321 S.W.3d 313, 318 (Mo. App. S.D. 2010)
(quoting State v. Love, 293 S.W.3d 471, 475 (Mo. App. E.D. 2009)). The tactics
used in separate offenses need not be identical to constitute acts of the same or
similar character. State v. McMillon, 436 S.W.3d 663, 670 (Mo. App. E.D.
2014). The courts consider several non-exclusive factors, including the
commission of the same type of offenses, victims of the same sex and age group,
offenses occurring at the same location, or offenses closely related
chronologically. Id.
Additionally, Missouri Supreme Court Rule 24.07 governs the severance of
offenses. Whenever two or more offenses are jointly charged in an indictment or
information, the court shall order both or all offenses to be tried together.
Section 545.885.1. To sever the charges, Movant would have to make a
particularized showing of substantial prejudice, meaning a bias or discrimination
which is actually existing or real and not one which is merely imaginary, illusory
or minimal. Section 545.885.2. A general allegation that the jury would
consider evidence of guilt on one charge as evidence of guilt on another charge
does not meet the requirement of a particularized showing of substantial
prejudice. State v. Simmons, 158 S.W.3d 901, 909 (Mo. App. S.D. 2005).
Here, Movant did not prove by a preponderance of the evidence that a motion
to oppose joinder or a motion to sever would have had any merit. The charges
were all of similar character in that the victims were all family members
(step-children, step-grandchildren, and sister-in-law) and Movant was charged
with touching the breasts of all the victims (Counts III-VI, VIII). Although two
of the charges, Counts I and II, involved touching the victim’s vaginas, these were
the same victims as those in Counts III and IV, and thus, it would have been
against the interest of judicial economy to sever these charges and require the
victims to testify in two separate trials. The charges were also related because the
21

investigation of the initial charge, touching the sister-in-law’s breasts, led to the
discovery of the other charges, when Movant admitted during questioning that he
touched M.B. M.B. later learned from her children, N.B. and J.B., that Movant
had touched them inappropriately too. Thus, the charges were not improperly
joined because they were similar and related. Further, Movant made no showing
at the evidentiary hearing of prejudice from the lack of severance. Movant’s
pleading that he suffered substantial prejudice because the jurors were “at risk” of
applying the evidence to each offense “without confusion” is not a showing of
prejudice that is actual or existing; Movant’s pleading of prejudice is speculative,
imaginary, and illusory. Also, the jury was instructed to consider each charge
separately and even acquitted Movant of one of the charges, demonstrating the
lack of prejudice. Simmons, 158 S.W.3d at 909 n.10. There is a presumption
that jurors follow the law and conscientiously carry out their duties. Strickland,
466 U.S. at 695.
Counsel will not be deemed ineffective for failing to make a non-meritorious
objection. Barton v. State, 432 S.W.3d 741, 754 (Mo. 2014). Further, trial
counsel made a strategic decision not to file a motion to sever because Movant
was adamant about testifying at trial, and if Movant was convicted in one case,
trial counsel wanted to prevent convictions from coming into evidence in later
cases when Movant testified. Whether to file a motion to sever is part of a
counsel’s trial strategy, which will not be second-guessed on appeal. Clay v.
State, 310 S.W.3d 733, 737 (Mo. App. W.D. 2010). Even where counsel does
not remember whether it was a strategic decision, her testimony does not
overcome the presumption that her decision was reasonable trial strategy. See
Bullock v. State, 238 S.W.3d 710, 715 (Mo. App. S.D. 2007).
Furthermore, to prove ineffective assistance of appellate counsel, the movant
must show 1) that the actions of his appellate counsel were outside the wide range
of professionally competent assistance, 2) that counsel’s errors were so severe that
counsel could not be said to be functioning as the ‘counsel’ guaranteed to the
defendant by the Sixth Amendment, and 3) that counsel’s deficient performance
resulted in prejudice. Franklin v. State, 24 S.W.3d 686, 691 (Mo. banc 2000),
cert. denied, 531 U.S. 951 (2000). To support a claim of ineffective assistance
regarding direct appeal counsel, there must be strong grounds showing that
counsel failed to assert a claim of error which would have required reversal had it
been asserted and which was so obvious from the record that a competent and
effective lawyer would have recognized and asserted it. Id. Appellate counsel
has no duty to present every issue asserted in a motion for new trial, nor is counsel
required to raise claims based on unpreserved issues that could only be considered
for plain error. Rutlin v. State, 435 S.W.3d 126, 134 (Mo. App. E.D. 2014).
Here, appellate counsel is not ineffective for failing to raise the unpreserved
claims that Movant has failed to show had any merit on direct appeal. As
discussed supra, the evidence shows the charges were joined properly and there
was no basis for severance. Movant’s second and third points are denied. The
22

motion court properly denied Movant’s claims for ineffective assistance of trial
counsel and appellate counsel based on the joinder and severance argument.
(Resp. Exh. K, PP. 3-4, 10-16).
As noted above, with respect to federal court review of state court conclusions, 28 U.S.C.
§ 2254 states in pertinent part as follows:
(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 B
(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).
1.

Trial Counsel

As noted above, in order to prevail on his ineffective assistance of counsel claim under
federal law, Petitioner must show that his attorney’s performance was “deficient,” and that the
deficient performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. To overcome this presumption, Petitioner must prove that, “in light of
all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Id.
Even if Petitioner satisfies the performance component of the analysis, he is not entitled
to relief unless he can prove sufficient prejudice. Id. at 694. To do so, Petitioner must prove
that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
23

the proceeding would have been different.” Id. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
Upon consideration the Court finds that with this claim, Petitioner fails to demonstrate his
counsel’s performance was deficient. During the evidentiary hearing Ms. Hritz testified that if
she did not file a motion to sever the charges, it was because “there was a lot of evidence against
[Petitioner], and [she] did not believe that having that played over and over again was going to be
beneficial.” (Resp. Exh. F, P. 130). She elaborated that she believed Petitioner had a better
chance of obtaining a favorable verdict in one trial versus four separate trials. (Id., P. 144).
Finally, she noted that although Petitioner was not a convicted sex offender prior to trial, if he
had separate trials and elected to testify at each, the later juries would have been informed of any
convictions in earlier trials.

(Id., P. 150).

Under these circumstances, Petitioner’s trial

counsel’s decision not to move to sever the charges fell well within the wide range of
professionally competent assistance sanctioned by Strickland, and so Ground 2 of Petitioner’s
petition must be denied.
2.

Appellate Counsel

“It is well established that the Sixth Amendment guarantees the right to effective
assistance of counsel on direct appeal.” Cole v. Dormire, 2011 WL 1258249, at *14 (E.D. Mo.
Jan. 20, 2011) (citing Evitts v. Lucey, 469 U.S. 387, 396–97 (1985); Douglas v. California, 372
U.S. 353, 357–58 (1963)). “The proper standard for evaluating a claim of ineffective assistance
of appellate counsel is that set forth in Strickland, supra.” Id. (citations omitted). In other
words, Petitioner must show that his appellate attorney’s performance fell below the reasonable
standard of competence, and that there is a reasonable probability that the result would have been
different absent this deficient performance. See Strickland, 466 U.S. at 687; Gee v. Groose, 110

24

F.3d 1346, 1352 (8th Cir. 1997).
“Appellate counsel is expected to winnow the issues on appeal to highlight the most
meritorious issues and eliminate the sure losers.” Cole, 2011 WL 1258249, at *14 (citing Jones
v. Barnes, 463 U.S. 745, 751–52 (1983); Gee, 110 F.3d at 1352; Pollard v. Delo, 28 F.3d 887,
889 (8th Cir. 1994)). “An attorney’s decision not to raise an unwinnable issue on appeal is an
important strategic decision in competent appellate advocacy, and does not constitute ineffective
assistance of appellate counsel.” McCord v. Norman, 2012 WL 1080925, at *16 (E.D. Mo. Mar.
30, 2012) (citations omitted). Thus, “[i]f an issue an appellate attorney failed to raise on appeal
is not meritorious, then appellate counsel cannot be considered ineffective for having failed to
argue that issue on appeal.” Cole, 2011 WL 1258249, at *14 (citations omitted).
Upon consideration the Court finds that with this claim, Petitioner fails to establish that
his appellate counsel’s performance was constitutionally deficient. The Court notes that had
appellate counsel raised the issue of trial counsel’s failure to move to sever the charges, it would
have been denied, because as explained above Ms. Hritz made a strategic decision not to file the
motion. Under these circumstances, Petitioner’s claim of ineffective assistance of appellate
counsel fails, and Ground 18 must be denied.
II.

Procedural Default
“Missouri procedure requires that a claim be presented ‘at each step of the judicial

process’ in order to avoid default.” Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.) (quoting Benson
v. State, 611 S.W.2d 538, 541 (Mo. App. 1980)), cert. denied, 513 U.S. 983 (1994). Because
Petitioner failed to raise the claims stated in Grounds 3-17, 19-20, and 23-25 of the instant
petition in the proper state court proceedings, he is procedurally barred from pursuing them here.
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Forest v. Delo, 52 F.3d 716, 719 (8th Cir.

25

1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert. denied, 515 U.S. 1163 (1995).
Therefore, this Court cannot reach the merits of the claims absent a showing of cause and
prejudice, or a demonstration “that failure to consider the claims will result in a fundamental
miscarriage of justice.” Coleman, 501 U.S. at 750.
A.

Fundamental Miscarriage Of Justice

The fundamental miscarriage of justice exception “requires a habeas petitioner to present
new evidence that affirmatively demonstrates that he is innocent of the crime for which he was
convicted.” Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir.) (citations omitted), cert. denied, 549
U.S. 1036 (2006). “The requirements to establish the requisite probability of innocence are
high. [Petitioner] must first come forward with ‘new’ evidence, and then he must show that ‘it
is more likely than not that no reasonable juror would have convicted him in light of the new
evidence.’” Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) (quoting Amrine v. Bowersox,
238 F.3d 1023, 1029 (8th Cir.), cert. denied, 534 U.S. 963 (2001), and Schlup v. Delo, 513 U.S.
298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)), cert. denied, 547 U.S. 1022 (2006).
Upon consideration, the Court finds Petitioner cannot meet this high standard. In other
words, while Petitioner apparently asserts his actual innocence with respect to at least some of
the alleged misconduct, he supports this claim with only his own declarations. Furthermore,
Petitioner’s protestations of innocence are undermined by his simultaneous claim that he
confessed to the crimes at issue because he believed he would be released in order to seek
treatment. As explained by the Eighth Circuit, a petitioner’s “bare, conclusory assertion that he
is actually innocent is not sufficient to invoke the exception,” because if “‘protestation of
innocence [were] the only prerequisite to application of this exception, we fear that actual
innocence would become a gateway forever open to habeas petitioners’ defaulted claims.’”

26

Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (quoting Wyldes v. Hundley, 69 F.3d
247, 254 (8th Cir. 1995), cert. denied, 517 U.S. 1172 (1996)), cert. denied, 522 U.S. 1093 (1998).
B.

Cause And Prejudice

Petitioner attempts to show cause for his failure to raise Grounds 3-17, 19-20, and 23-25
in state court, by citing to Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Assuming
without deciding that he has demonstrated sufficient cause for the default, the Court must
determine whether post-conviction counsel’s deficient performance caused Petitioner “actual
prejudice.” McLaughlin v. Steele, 2016 WL 1106884, at *9 (E.D. Mo. Mar. 22, 2016) (citing
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).
As other district courts have noted, Coleman/Martinez prejudice and Strickland
prejudice may technically be two separate inquiries, but they overlap. They
are—under some circumstances—redundant. At least in this case—where
postconviction counsel’s deficiency was his complete failure to present a
substantial claim—the two types of prejudice are inexorably related: if there is a
reasonable probability that the [proceeding] would have gone differently had trial
counsel been constitutionally adequate, there is necessarily a reasonable
probability that the state court would have so found had postconviction counsel
properly presented that underlying claim.
Id. (internal citations and footnote omitted).
Upon consideration of the foregoing, the Court finds that in order to determine whether
the alleged failings of Petitioner’s 29.15 counsel caused him prejudice, it must address the
underlying claims in Petitioner’s petition. See Martinez, 132 S.Ct. at 1320 (“A finding of cause
and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to
consider the merits of a claim that otherwise would have been procedurally defaulted.”).
1.

Ground 3

As stated above, in Ground 3 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to object to the use of the girls’ testimony,

27

signed statements and videos.

Upon consideration the Court finds that with this claim,

Petitioner fails to satisfy either prong of the Strickland standard. With respect to deficient
performance, the Court notes that prior to trial Petitioner’s counsel filed a motion to exclude the
statements the juvenile witnesses made to law enforcement officers, CAC employees, and family
members. (Resp. Exh. B, PP. 30-34). She then renewed her objection to the admission of this
evidence at trial, and included the claim in her motion for a new trial. (See Resp. Exh. A, PP.
540, 544, 605; Resp. Exh. B., PP. 70-76). The Court finds these actions on the part of trial
counsel fell well within the wide range of professionally competent assistance sanctioned by
Strickland.
With respect to prejudice, as explained above the Missouri Court of Appeals denied
Petitioner’s claim that the trial court erred in admitting the girls’ testimony and statements.
(Resp. Exh. E, PP. 3-5). Trial counsel thus cannot be found ineffective for failing to raise a
meritless claim, and so Ground 3 of Petitioner’s petition must be denied.
2.

Ground 4

As stated above, in Ground 4 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to secure documents and material from
Petitioner’s prior counsel. 5 In his reply brief, Petitioner explains the materials would have
established that he did not meet his wife until 1996, thus negating M.B.’s claim he molested her
in 1994, and that he was in California at the time of one of the alleged fondlings. Upon
consideration the Court finds that with this claim, Petitioner again fails to satisfy either prong of
the Strickland test. Petitioner’s claim of deficient performance is belied by the record, as he
testified under oath that he was satisfied with his counsel’s performance, as follows:

5 Petitioner testified that his original trial attorney passed away a week before trial. (Resp. Exh. F, P. 18).

28

The Court: Okay. Now, do you believe that you have had ample opportunity to
discuss all--there were eight charges initially, all eight charges are on the
amended--all eight charges with your lawyer? You had ample time to discuss
these charges with your lawyer?
The Defendant: Yes.
The Court: At all stages; correct?
The Defendant: Yes.
The Court: Okay. And as discussed before, it was your decision to go to trial;
correct?
The Defendant: Yes, ma’am.
The Court: Okay. You discussed that with your lawyer?
The Defendant: Yes, ma’am.
The Court: Has your lawyer done everything you asked her to do?
The Defendant: Yes, ma’am.
The Court: Did she do anything you told her not to do?
The Defendant: No, ma’am.
The Court: Do you believe she had all of the facts and information necessary to
adequately represent and advise you on this case?
The Defendant: I believe so to the best of my knowledge.
The Court: Do you have any complaints about her services?
The Defendant: No, ma’am.
The Court: Okay.
rendered to you?

So overall are you satisfied with the services she has

The Defendant: Yes, ma’am.
The Court: Do you feel it is appropriate I make a finding that she has done her
job?
The Defendant: Yes, ma’am.
29

(Resp. Exh. A, PP. 927-28 (emphasis added)). Further, with respect to prejudice, Petitioner
admitted that he committed the acts alleged, thus negating any claim that the outcome of his trial
would have been different absent counsel’s error. (See Resp. Exh. N). Ground 4 of Petitioner’s
petition must therefore be denied.
3.

Ground 5

As stated above, in Ground 5 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to allow Petitioner input during jury selection.
Petitioner does not elaborate on any alleged failures in this regard on counsel’s part, nor does he
identify any particular panel members he did or did not want on his jury. The Court thus finds
Petitioner has failed to demonstrate the requisite prejudice under Strickland, and so the claim
raised in Ground 5 of the instant petition must be denied.
4.

Grounds 6 and 7

As stated above, in Ground 6 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to impeach the State’s witnesses with conflicting
statements they made to the police, to the CAC representative, during the preliminary hearing, or
during the trial itself.

In Ground 7 Petitioner asserts he received ineffective assistance of

counsel, in that trial counsel failed to object to the State’s use of hearsay, leading questions, and
perjured testimony. With both these claims, the Court finds Petitioner fails to specify any
allegedly conflicting statements, hearsay, leading questions or perjury.

Under these

circumstances, he cannot demonstrate prejudice under Strickland, and so Grounds 6 and 7 must
be denied.
5.

Ground 8

30

As stated above, in Ground 8 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel attempted to prohibit Petitioner from testifying at trial.
With this claim Petitioner fails to demonstrate the requisite prejudice, as Petitioner testified at
length during his trial. (See Resp. Exh. A, PP. 772-865). Ground 8 is denied.
6.

Ground 9

As stated above, in Ground 9 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to present college records demonstrating
Petitioner did not meet his wife until 1996. According to Petitioner, these records would have
proved he could not have molested M.B., his step-daughter, when she was ten, because that
would have been in 1994.
Upon consideration the Court finds that with this claim, Petitioner again fails to
demonstrate the requisite prejudice, for two reasons. First, Petitioner himself testified at trial
that he did not meet his wife until January of 1996 (see Resp. Exh. A, P. 774), so had counsel
presented the college records they would merely have provided cumulative evidence. Second,
on cross-examination Petitioner acknowledged that in his written confession to the police he
intentionally stated that he touched M.B.’s breast when she was ten, knowing that her age was
false as he did not meet her until she was twelve. (See Resp. Exh. N; Resp. Exh. A, PP. 850-51,
860). The jury thus was in possession of this information when it engaged in deliberations, and
so the Court does not find a reasonable probability that the outcome of Petitioner’s trial would
have been different had trial counsel presented college records demonstrating Petitioner did not
meet his wife until 1996. Ground 9 is denied.
7.

Ground 10

31

As stated above, in Ground 10 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel operated under a conflict of interest and encouraged
Petitioner to plead guilty. Upon consideration the Court finds that with this claim, Petitioner
fails to establish either prong of the Strickland test. With respect to counsel’s performance, the
Court notes that in order to demonstrate a claim of ineffective assistance of counsel arising from
a conflict of interest, Petitioner must prove both that his attorney acted under an actual conflict of
interest, as opposed to just a potential one, and that the conflict of interest actually affected the
adequacy of the representation. Johnson v. Norris, 207 F.3d 515, 519 (8th Cir. 2000). The
Court’s review of the record reveals that even assuming an actual conflict of interest, trial
counsel’s advocacy on Petitioner’s behalf was vigorous both before and during trial. Second,
with respect to prejudice, as revealed by the record Petitioner did not plead guilty, and he
specifies no other alleged instances of prejudice suffered. Therefore, the claim raised in Ground
10 must be denied.
8.

Ground 11

As stated above, in Ground 11 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to investigate the propensity of the State’s
witnesses to lie. The Court finds this claim is belied by Petitioner’s own testimony before the
trial court, in which he expressed satisfaction with his attorney’s performance and investigation.
(See Resp. Exh. A, PP. 927-28). Petitioner thus fails to demonstrate his attorney’s performance
was constitutionally deficient, and so Ground 11 must be denied.
9.

Ground 12

As stated above, in Ground 12 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to talk to Petitioner’s previous employers

32

regarding his character around children.6 During the evidentiary hearing on Petitioner’s 29.15
motion, the investigator assigned to his case, Mr. Robert Thies, testified that the list of potential
witnesses he was instructed to contact came directly from Petitioner. (Resp. Exh. F, P. 115).
He further testified that he attempted to contact every person on the list, with the exception of
one family member Petitioner’s attorney had already contacted. (Id., P. 116). Petitioner’s trial
attorney, Ms. Kelly Hritz, confirmed that she received the names of potential witnesses from
Petitioner, and asked Mr. Thies to speak with them. (Id., P. 131). She further testified that it
ultimately was Petitioner’s decision whether or not to call the witnesses whose names he had
provided, and that he decided to follow her advice and not call the witnesses. (Id., PP. 139,
140). With both Mr. Thies and Ms. Hritz, the discussion exclusively revolved around character
witnesses provided by Petitioner; at no time did anyone broach the subject of potential witnesses
from Petitioner’s prior place of employment. 7 Under these circumstances, the Court finds
Petitioner fails to prove he provided names of potential witnesses that his attorney refused to talk
to and/or call at trial. Ms. Hritz cannot be found deficient for failing to contact witnesses of
whom she was unaware, and so Ground 12 of the instant petition must be denied.
10.

Ground 13

As stated above, in Ground 13 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to obtain the victims’ school records, or have the
victims evaluated by an “independent psychological agency”, in order to show they never
exhibited symptoms of sexual abuse. Upon consideration the Court finds that with this claim,
Petitioner fails to establish the requisite prejudice. In other words, regardless of what any

6 Petitioner apparently was a school bus driver at some point in his career. (See ECF No. 1-1, P. 2).
7 The only discussion regarding Petitioner’s prior employment involved several retail shops, including Brooks
Brothers and Sam Cavato’s, and Ms. Hritz testified that she did not learn of those establishments until the day of the
evidentiary hearing. (Resp. Exh. F, PP. 137-38).

33

investigation into the victims’ mental state may have revealed, there is no reasonable probability
the outcome of Petitioner’s trial would have been different, because he admitted to touching
M.B., J.B. and N.B. (See Resp. Exh. N). Ground 13 is denied.
11.

Ground 14

As stated above, in Ground 14 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to obtain an interpreter to allow trial counsel to
speak with Petitioner’s witnesses. Petitioner’s trial counsel addressed this during the evidentiary
hearing on his 29.15 motion, and stated that her investigator, Mr. Thies, was able to speak with
almost all of the witnesses, despite the language barriers. (Resp. Exh. F, P. 133). For those that
he did not speak with, it was either because they refused to speak with him, or they wrote letters.
(Id.). Under these circumstances, the Court finds Petitioner establishes neither deficient
performance nor prejudice, because regardless of any language barriers trial counsel’s
investigator got what he needed from all witnesses. Ground 14 is denied.
12.

Ground 15

As stated above, in Ground 15 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to aid Petitioner when he complained he could
not hear everything that transpired during his trial due to a hearing impairment.

Upon

consideration the Court again finds that with this claim, Petitioner fails to establish deficient
performance on the part of his attorney. Specifically, the Court notes the following discussion
took place during a pretrial hearing:
Ms. Hritz: [Petitioner] is very hard of hearing so you have to speak very loud for
him to hear.
The Court: Can someone address that with the jury?
Ms. Hritz: I always ask people to speak up anyway, is that what you mean?
34

Ms. Porter8: I don’t think they need to know he may be hard of hearing.
The Court: Tell the witnesses, I mean, he needs to be able [to] hear.
Ms. Hritz: I will make sure they speak up anyway, sometimes I can’t hear.
Ms. Porter: I brought the kids into the other courtroom last week and they were
excited about the mike so they are going to talk into the mike.
The Court: Okay.
Ms. Hritz: I just mean, when you are questioning them about testifying or
waiving the jury sentencing or whatever you are probably going to have to speak
loudly, because he can’t hear very well. I don’t think he always admits to when
he doesn’t understand what is being said.
The Court: Right. I just don’t want him missing part of it and I don’t want to
draw attention to his hearing loss. But what I will probably say is, Everyone
speak up so my court reporter can take down what you say.
Ms. Hritz: He will ask either myself or Sam if he doesn’t hear.
(Resp. Exh. A, PP. 116-17). The record thus demonstrates Petitioner’s counsel was aware of the
problem, and addressed it with the Court prior to trial. Petitioner provides no specific examples
of times he allegedly asked his counsel for assistance and she refused to provide it, and so he
fails to demonstrate deficient performance on her part. Ground 15 is denied.
13.

Ground 16

As stated above, in Ground 16 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to assert at trial that Petitioner was coerced into
writing a statement for the police. Once again, this claim is belied by the record. Petitioner
testified extensively during trial about his interactions with the police, and the fact that he was
coerced into making a statement. (See, e.g., Resp. Exh. A, PP. 806-09). Specifically, Petitioner
testified as follows:

35

Ms. Hritz: Did you feel coerced into making those statements?
The Defendant: Yes, I did.
Ms. Hritz: How were you coerced in your perspective?
The Defendant: In my own mind because they kept pushing. They kept going
back and forth between [M.B.] and [J.B.] and [N.B.], [J.B.] and [M.B.] and
[V.R.], back and forth and just pushing the fact about [N.B.] and [J.B.] very
much, very much. And they just were pushing the buttons a little bit too much
and I felt coerced and I felt intimidated and I felt uncomfortable. So like I said
just [a few] minutes ago, after four and a half, five hours of that kind of
questioning back and forth, back and forth. Any normal human being who has
never been through that process before is—I know ignorance of the law is no
excuse, but never had any experience of anything like that and I just did not think
it would be like that.
Ms. Hritz: So even though nobody openly threatened you with anything or
openly promised you anything to make that statement you still felt pressured into
making that statement?
The Defendant: Yes, I did.
Ms. Hritz: And that—and, obviously, again correct me if I am wrong, that’s
because they made you feel like they were your friends and all of a sudden that
turned on you?
The Defendant: Yes, ma’am.
(Id., PP. 809-10). The record thus demonstrates Petitioner’s trial attorney asserted the claim of
coercion, and so Ground 16 must be denied.
14.

Ground 17

As stated above, in Ground 17 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that trial counsel failed to present to the jury evidence that there was
over an hour missing from the taped interrogation. Petitioner does not elaborate on the contents
of the allegedly missing portion of the tape, however, and so he fails to establish a reasonable

8 Ms. April Porter was the prosecuting attorney during Petitioner’s trial.

36

probability that the outcome of his trial would have been different had counsel made the
assertion. Ground 17 is denied.
15.

Ground 19

As stated above, in Ground 19 of his petition Petitioner asserts he received ineffective
assistance of counsel, in that appellate counsel failed to raise on direct appeal the fact that victim
N.B. testified Petitioner did nothing to her. With this claim, the Court finds Petitioner fails to
demonstrate the requisite prejudice, for two reasons. First, N.B. did testify at trial that Petitioner
touched her inappropriately.

(See Resp. Exh. A, PP. 511-12). Second, Petitioner himself

admitted to doing so in his written confession. (See Resp. Exh. N). Under these circumstances,
the Court finds no reasonable probability the result of Petitioner’s trial would have been different
had appellate counsel raised the claim, and so Ground 19 must be denied.
16.

Ground 20

As stated above, in Ground 20 of his petition Petitioner asserts the trial court erred in
allowing the joinder of charges. The Missouri Court of Appeals addressed this assertion in the
midst of discussing Movant’s ineffective assistance of counsel claim, holding as follows:
Here, Movant did not prove by a preponderance of the evidence that a
motion to oppose joinder or a motion to sever would have had any merit. The
charges were all of similar character in that the victims were all family members
(step-children, step-grandchildren, and sister-in-law) and Movant was charged
with touching the breasts of all the victims (Counts III-VI, VIII). Although two
of the charges, Counts I and II, involved touching the victim’s vaginas, these were
the same victims as those in Counts III and IV, and thus, it would have been
against the interest of judicial economy to sever these charges and require the
victims to testify in two separate trials. The charges were also related because the
investigation of the initial charge, touching the sister-in-law’s breasts, led to the
discovery of the other charges, when Movant admitted during questioning that he
touched M.B. M.B. later learned from her children, N.B. and J.B., that Movant
had touched them inappropriately too. Thus, the charges were not improperly
joined because they were similar and related. Further, Movant made no showing
at the evidentiary hearing of prejudice from the lack of severance. Movant’s
pleading that he suffered substantial prejudice because the jurors were “at risk” of
37

applying the evidence to each offense “without confusion” is not a showing of
prejudice that is actual or existing; Movant’s pleading of prejudice is speculative,
imaginary, and illusory. Also, the jury was instructed to consider each charge
separately and even acquitted Movant of one of the charges, demonstrating the
lack of prejudice. Simmons, 158 S.W.3d at 909 n.10. There is a presumption
that jurors follow the law and conscientiously carry out their duties. Strickland,
466 U.S. at 695.
(Resp. Exh. K, P. 14).
As stated above, with respect to federal court review of state court conclusions, 28 U.S.C.
§ 2254 states in pertinent part as follows:
(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 B
(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).
Under Eighth Circuit law, “the decision to join offenses in a single trial is a matter within
the discretion of the trial judge under both Missouri and federal law.” Robinson v. Wyrick, 735
F.2d 1091, 1094 (8th Cir.) (citations omitted), cert. denied, 469 U.S. 983 (1984). The decision
normally may not be disturbed on review, and so to obtain federal habeas corpus relief Petitioner
must show the joinder rendered his state trial fundamentally unfair, and thus was violative of due
process. Id. In Petitioner’s case, the state court correctly noted the charges were all of similar
character, in that the victims were all family members of Petitioner’s. The charges were further
related because the investigation of the initial charge led to the discovery of the other charges.
Finally, Petitioner has made no showing that he was prejudiced by the lack of severance; rather,

38

the jury actually acquitted Petitioner of one of the charges, thus demonstrating its ability to
distinguish between the various counts. Id. Under these circumstances the Court finds no
violation of due process, and so Ground 20 must be denied.
17.

Ground 23

As stated above, in Ground 23 of his petition Petitioner asserts he was denied due process
of law, as his jury did not represent a fair cross-section of the St. Louis County community.
Petitioner is correct that “the American concept of the jury trial contemplates a jury drawn from a
fair cross section of the community.” Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42
L.Ed.2d 690 (1975). In order to establish a violation of this fair cross-section requirement,
Petitioner must show: “‘(1) that the group alleged to be excluded is a ‘distinctive’ group in the
community; (2) that the representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion of the group in the jury-selection
process.’” United States v. Rodriguez, 581 F.3d 775, 790 (8th Cir. 2009) (quoting Duren v.
Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)), cert. denied, 562 U.S. 981
(2010).
Petitioner’s only support for his fair cross-section claim states as follows: “[T]he jury
was from a very small portion of St. Louis County, an area close to the courthouse, and did not
include individuals selected throughout the entire county (For example, areas like Chesterfield,
Ladue, etc.).”

The Court finds this allegation insufficient to establish any of the required

elements under Duren, and so his challenge must fail. Rodriguez, 581 F.3d at 790. Ground 23
is denied.
18.

Ground 24

39

As stated above, in Ground 24 of his petition Petitioner asserts he was denied due process
of law, as he was denied his right to confront and cross-examine witnesses when the prosecutor
introduced hearsay testimony. Petitioner’s claim necessarily fails, as he does not identify which
witnesses he was unable to confront and cross-examine due to the introduction of hearsay
testimony. Ground 24 is denied.
19.

Ground 25

As stated above, in Ground 25 of his petition Petitioner asserts he was denied due process
of law, as the indictment was insufficient. Specifically, Petitioner claims that for Counts 1, 3, 4,
and 5, the indictment included neither the specific time of the crimes, nor the address where the
crimes took place.
“It is well-established that the question of whether an offense is sufficiently alleged in an
indictment or information is not a proper subject for inquiry in federal habeas corpus proceedings
unless the indictment or information is so defective as to deprive the state court of jurisdiction.”
Wilkinson v. E.E. Haynes, 327 F.Supp. 967, 968-69 (W.D. Mo. 1971) (citing Knewel v. Egan,
268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036 (1925)). Under Missouri law, “[t]he fundamental test
of the sufficiency of an information is whether or not it states the essential elements of the
offense charged so that the defendant is adequately informed of the charge against him and the
final disposition of the charge will constitute a bar to further prosecution for the same offense.”
State v. Miller, 372 S.W.3d 455, 467 (Mo. banc 2012) (internal quotation marks and citations
omitted). With respect to allegations regarding timing, “[a]ppellate courts in previous cases
have held that periods of time ranging anywhere from a 24-day period to a span of four years and
six months were sufficient for notice and due process purposes.” Id. at 466 (citations omitted).

40

Here, the record reveals Petitioner’s information was sufficient under Missouri law, and
thus did not deprive the state court of jurisdiction. Counts 1, 3, 4 and 5 of the information each
identified the victim of the offense, the date range during which the offense occurred 9 , the
location of the act (St. Louis County), the age of the victim, i.e., less than twelve or fourteen
years old, the actions Petitioner took against the victim, and the Missouri offense Petitioner
committed as a result of such conduct.

(See Resp. Exh. B, PP. 35-36).

This detailed

information adequately informed Petitioner of the charges against him, and ensured that final
disposition of the charges would preclude further prosecution for the same offenses. Miller, 372
S.W.3d at 467. Ground 25 is denied.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are
DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum
and Order.
IT IS FURTHER ORDERED that because Petitioner cannot make a substantial
showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834
(1998).
Dated this 27th Day of October, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
9 The largest date range at issue for Counts 1, 3, 4, and 5 was just over one year, from October 7, 2008, to
November 6, 2009. (Resp. Exh. B, PP. 35-36).

41