Houston v. Griffith

Filing 28

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Damon Houston's petition for writ of habeas corpus, 1 , is DENIED. An appropriate judgment will accompany this Memorandum and Order. Signed by District Judge Rodney W. Sippel on 3/27/19. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAMON J. HOUSTON,
Petitioner,
v.
ANNE L. PRECYTHE,
Respondent.

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Case No. 4:16 CV 153 RWS

MEMORANDUM AND ORDER
Plaintiff Damon Houston seeks a writ of habeas corpus, under 28 U.S.C.
§ 2254. I referred this petition to United States Magistrate Judge Noelle Collins for
a report and recommendation on all dispositive matters pursuant to 28 U.S.C.
§ 636(b). The Magistrate Judge recommended that I deny Houston’s petition.
According to the Magistrate judge, seven of Houston’s ten grounds are
procedurally defaulted (ECF No. 24 at 5-13), one of Houston’s grounds is not
cognizable in a federal habeas corpus action (Id. at 14-15), and two of his grounds
do not meet the § 2254 standard on the merits. (Id. at 15-24). Houston objects to
the Magistrate Judge’s report and recommendations. Houston’s objections and
underlying arguments do not demonstrate that the state post-conviction court
adjudicated claims contrary to federal law or made an unreasonable determination
of facts. As a result, I will deny his petition for a writ of habeas corpus.

BACKGROUND
On September 12, 2011, Houston was convicted of one count of forcible
rape, one count of attempted forcible sodomy, and one count of victim tampering
in the Circuit Court of the City of St. Louis. (ECF Nos. 23-1, 16-1). Houston was
sentenced to concurrent sentences of life without the possibility of parole for the
forcible rape and attempted forcible sodomy. He was also sentenced to three years
for witness tampering. The Missouri Court of Appeals affirmed Houston’s
conviction and sentence on direct appeal. (ECF No. 13-3); State v. Houston, 386
S.W.3d 888 (Mo. Ct. App. 2012). On February 22, 2013, Houston filed a motion to
vacate, set aside or correct the judgment or sentence under Missouri Supreme
Court Rule 29.15. The post-conviction relief court denied Houston’s motion, and
the Missouri Court of Appeals affirmed that denial. (ECF Nos. 16-2, 13-6);
Houston v. State, 469 S.W.3d 503 (Mo. Ct. Ap. 2015).
On February 4, 2016, Houston filed his petition in this matter under 28
U.S.C. § 2254. Houston raises the following ten grounds for relief:
(1) Trial counsel was ineffective for failing to investigate and present
evidence of consensual sex between Houston and the victim six months
prior to the crimes in question, (Doc. 1 at 16);
(2) The motion court erred in refusing to review the additional claims
Houston raised in his pro se Rule 29.15 Motion because they were
allegedly illegible, (id. at 21);1
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Instead, the motion court reviewed claims raised in Houston’s amended rule 29.15 motion, filed
with the assistance of counsel.
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(3) The trial court failed to direct a verdict at the close of all of the evidence
despite the State’s failure to prove Houston took a substantial step toward
completing the crime of attempted forcible sodomy, (id. at 23);
(4) Direct appeal counsel failed to adequately use the “Destructive
Contradiction Doctrine” to challenge the victim’s testimony, (id. at 25);
(5) Trial counsel failed to subpoena police Officer Scott A. Wilmont as a key
witness to provide impeachment evidence against the victim, (id. at 26);
(6) Trial counsel failed to properly lay a foundation to impeach a key state
witness, (id. at 28);
(7) Trial counsel failed to object to an exhibit that was not produced before
trial, showing the location of the crime relative to a White Castle, (id.
at 29);
(8) Direct appeal counsel failed to raise “under Plain Error review” the
State’s failure to produce the White Castle exhibit, (id. at 31);
(9) Trial counsel failed to make a timely and proper objection to the State’s
motion in limine preventing testimony that the victim had previous
sexual encounters with Houston, (id. at 33);
(10) Direct appeal counsel failed to raise “under Plain Error” the Motion in
limine discussed in Ground 9, (id. at 36).
Upon my referral, the Magistrate Judge recommended that I deny grounds 4
through 10 because they were not presented in state court and were procedurally
defaulted. Additionally, the Magistrate Judge conducted an analysis under
Martinez v. Ryan for grounds 5, 6, 7, and 9 and determined they were not
“substantial” ineffective assistance of counsel claims that had some merit. The
Magistrate Judge concluded that ground 2 was not cognizable as a federal habeas
corpus action because “the Constitution does not guarantee the existence of state
post-conviction proceedings, [and therefore] an infirmity in a state post-conviction
proceeding does not raise a constitutional issue.” Bell-Bey v. Roper, 499 F.3d 752,
756 (8th Cir. 2007).
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The Magistrate Judge denied grounds 1 and 3 on the merits. For ground 1,
the Magistrate Judge concluded that the evidence that Houston wished to introduce
would not have been admissible under Missouri’s rape shield statute, § 491.015.1
R.S.Mo. For ground 3, the Magistrate Judge concluded that the state appellate
court’s decision that “a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S.
307, 319 (1979), warranted deference. Finally, the Magistrate Judge recommended
that I deny Houston’s request for an evidentiary hearing because he failed to allege
facts sufficient to justify habeas relief.
LEGAL STANDARD
I must conduct a de novo review of the Magistrate Judge’s report and
recommendation pursuant to 28 U.S.C. § 636(b). To prevail under § 2254, Houston
must show that he has exhausted his state court remedies or that no effective
process exists in state courts for protecting his rights. 28 U.S.C. § 2254(b). To
prevail on the merits, Houston must show that the state court’s adjudication of his
claim “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 “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). To prevail on an ineffective assistance of counsel claim, Houston must
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show that his counsel’s performance fell below an objective standard of
reasonableness and that he was prejudiced by the deficient representation.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. Finally,
if Houston has procedurally defaulted an ineffective assistance of trial counsel
claim because of post-conviction counsel’s failure to raise it, his underlying claim
may be reviewed under Martinez v. Ryan, 566 U.S. 1 (2012). To satisfy this
exception, the underlying ineffective assistance of counsel claim must be a
“substantial one, which is to say that the prisoner must demonstrate that the claim
has some merit.” Id. at 17.
ANALYSIS
Houston raised eight objections to the Magistrate Judge’s report and
recommendations. (ECF no. 27). Two of Houston’s objections pertain to ground 1,
two pertain to ground 5, two pertain to ground 7, and two pertain to ground 9.
Houston does not object to the Magistrate Judge’s recommendations concerning
grounds 2, 3, 4, 6, 8, and 10. I have independently reviewed the Magistrate Judge’s
recommendations concerning these grounds for relief. I agree with the Magistrate
Judge that grounds 4, 6, 8, and 10 have been procedurally defaulted. I agree with
the Magistrate Judge that ground 2 is not cognizable in a federal habeas corpus
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action. I also agree with the Magistrate Judge that ground 3 should be denied on
the merits. The state appellate court’s decision that “a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt,”
Jackson v. Virginia, 443 U.S. 307, 319 (1979), warrants deference concerning
ground 3. As a result, I will deny grounds 2, 3, 4, 6, 8, and 10. I review Houston’s
remaining grounds for relief below.
A. Ground 1
For ground 1, Houston argues that trial counsel was ineffective for failing to
investigate his case. According to Houston, if trial counsel had effectively
investigated his case, he would have presented evidence of consensual sex “within
six months” of the crimes in question. (ECF No. 1 at 18). The prosecutor filed a
motion in limine to exclude evidence of past sexual conduct under Missouri’s rape
shield statute, § 491.015.1 R.S.Mo. A record does not exist of whether the motion
was granted, but trial counsel did not ask questions concerning past sexual
conduct, and it appears the trial court granted it. (ECF No. 13-6 at 5). The postconviction appellate court found that it was proper to grant the motion in limine,
and that trial counsel was not ineffective for failing to admit this evidence. (Id.
at 5-6). The Magistrate Judge similarly determined that the evidence in question
would not have been admissible under the rape shield law, and trial counsel’s

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conduct did not fall below an objectively reasonable standard. Strickland v., 466
U.S. 668, 687-88.
In his objection to the Magistrate Judge’s recommendations on Ground 1,
Houston argues that 1) the consent was his main defense, such that he met an
exception to the rape shield statute and 2) the statute violated the Confrontation
Clause of the Sixth Amendment. The post-conviction appellate court and
Magistrate Judge both considered how Houston’s consent argument affected
application of the rape shield statute. The statute provides that “the complaining
witness’ prior sexual conduct” is inadmissible except where “consent is a defense
to the alleged crime and the evidence is reasonably contemporaneous with the date
of the alleged crime.” § 491.015.1 R.S.Mo. The post-conviction appellate court
appropriately determined that consensual sex that occurs six months before the
crimes in question is not “reasonably contemporaneous” for purposes of this
statute. (ECF No. 13-6 at 5-6). This conclusion is not an unreasonable
determination of the facts or an unreasonable application of clearly established
federal law.
Additionally, Houston does not establish that the application of Missouri’s
rape shield law in this case is contrary to the Confrontation Clause. The Sixth
Amendment right to cross-examining witnesses is limited by “other legitimate
interests in the criminal trial process” such as preventing “harassment, prejudice,
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confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” United States v. Pumpkin Seed, 572 F.3d 552, 560 (8th
Cir. 2009). As long as these limitations are not “arbitrary or disproportionate to the
purposes they are designed to serve,” they are constitutionally permissible. Id.
(quoting United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir.2005)). The postconviction appellate court considered the applicability of the rape shield statute at
length and determined that it was appropriate to the circumstances of this case.
(ECF No. 13-6 at 5-7). For that reason, the post-conviction appellate court
concluded that trial counsel’s actions did not fall below an objectively reasonable
standard.
This conclusion is not an unreasonable determination of the facts or an
unreasonable application of clearly established federal law. As a result, I must
deny this ground for relief.
B. Ground 5
For ground 5, Houston argues that his trial counsel was ineffective for
failing to subpoena police Officer Scott A. Wilmont as a witness to provide
impeachment evidence against the victim. Houston argues that, if called to testify,
Officer Wilmont would have contradicted the victim’s statements about the crime
scene. The Magistrate Judge determined that trial counsel’s decision not to
subpoena Officer Wilmont was a matter of trial strategy, and that, therefore, trial
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counsel’s conduct did not fall below an objective standard of reasonableness. (ECF
No. 24 at 9). “Decisions relating to witness selection are normally left to counsel’s
judgment, and this judgment will not be second-guessed by hindsight.” Williams v.
Armontrout, 912 F.2d 924, 934 (8th Cir. 1990).
Houston objects to the Magistrate Judge’s recommendation on the grounds
that his counsel not only failed to call Officer Wilmont, but also failed to interview
Officer Wilmont. (ECF No. 27 at 3). “The decision to interview a potential witness
is not a decision related to trial strategy. Rather, it is a decision related to adequate
preparation for trial.” Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir. 1990).
The “failure to interview” theory was not contained in Houston’s petition. Even if
trial counsel failed to interview Wilmont, Houston has not provided sufficient
allegations to conclude that the failure was below an objective standard of
reasonableness or prejudicial to Houston. Instead Houston has provided only a
vague argument that Wilmont would contradict the victim’s statement that
underwear or other evidence was “put away and left behind by [the victim].” (ECF
no. 1 at 26). As a result, Wilmont does not have a substantial ineffective assistance
of counsel claim concerning ground 5, and this claim is procedurally defaulted.
C. Ground 7
For ground 7, Houston argues that his trial counsel was ineffective for
failing to object to the prosecutor’s introduction of a certain map as evidence. The
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map showed the apartment where the crimes occurred in relation to a White Castle,
for which a third person at the apartment left, leaving the victim and Houston alone
for thirty minutes or more. Houston argues that “petitioner’s [sic] never receive[d]”
the exhibit, and that the White Castle is much closer than the exhibit purported to
show. (ECF No. 27 at 2). Houston does not argue that his counsel never received
the exhibit.
The Magistrate Judge concluded that trial counsel’s failure to object to the
map was not “below an objective standard of reasonableness” nor “prejudicial” to
Houston. Strickland, 466 U.S. 668, 687-88. Houston has presented no evidence to
support his allegation that “the drive to White Castle is 2 minutes.” As a result, he
cannot demonstrate that entering the exhibit into evidence was prejudicial to him.
His claim of ineffective assistance of counsel is not substantial. Accordingly,
Houston’s ground 7 is procedurally defaulted.
D. Ground 9
For ground 9, Damon Houston argues that his trial counsel failed to object to
the prosecutor’s motion in limine concerning past sexual conduct. This ground is
very similar to ground 1, except that Houston did not fairly present this claim
before the state motion court. As a result, I must determine whether ground 9
presents a substantial ineffective assistance of counsel claim. For ground 1, I
concluded that the motion court appropriately determined that § 491.015.1 R.S.Mo
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applied in this case. Houston does not have a strong argument that § 491.015.1
should not have applied. I conclude that, in failing to object to the prosecutor’s
motion in limine, trial counsel’s conduct did not fall below an objective standard of
reasonableness nor prejudice Houston. As a result, ground 9 does not present a
substantial ineffective assistance of counsel claim and this ground is procedurally
defaulted.
CONCLUSION
Based on my de novo review, I conclude that Houston’s grounds 4 through
10 are procedurally defaulted, ground 2 is not cognizable in a federal habeas
corpus action, and grounds 1 and 3 do not demonstrate that the post-conviction
court adjudicated claims contrary to federal law or made an unreasonable
determination of facts.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Damon Houston’s petition for
writ of habeas corpus, [No. 1], is DENIED. An appropriate judgment will
accompany this Memorandum and Order.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 27th day of March, 2019.
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