Smith v. Steele

Filing 14

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Stanley Payne is substituted for Troy Steele as proper party respondent. IT IS FURTHER ORDERED that the petition of Ernest L. Smith for writ of habeas corpus pursuant to 28 U.S.C. § 2254 1 is de nied. IT IS FURTHER ORDERED that a Certificate of Appealability will not issue in this action because petitioner has not made a substantial showing of a denial of a constitutional right. A separate Judgment is entered herewith. Signed by District Judge Catherine D. Perry on October 7, 2019. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERNEST L. SMITH,
Petitioner,
v.
STANLEY PAYNE,1
Respondent.

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Case No. 4:16 CV 517 CDP

MEMORANDUM AND ORDER
This matter is before the Court on Missouri state prisoner Ernest L. Smith’s
petition for writ of habeas corpus under 28 U.S.C. § 2254. I will deny the petition.
Procedural History
On February 14, 2011, Smith was charged by criminal complaint in the
Circuit Court of St. Louis County, Missouri, with murder second degree and armed
criminal action. An amended complaint was filed February 15, charging Smith
with murder first degree and armed criminal action. A grand jury returned a twocount indictment on March 16, charging Smith with murder first degree and armed
criminal action. On March 4, 2013, an information in lieu of indictment was filed,
bringing the same charges and adding Smith’s status as a prior offender. Trial on

1

Petitioner is currently incarcerated at the Eastern Reception, Diagnostic and Correctional
Center (ERDCC). Because Stanley Payne is the current warden at ERDCC, he is substituted for
former warden Troy Steele as the proper party respondent

the information began that same date. On March 6, 2013, a jury found Smith
guilty of murder second degree and armed criminal action. The court sentenced
Smith to concurrent terms of thirty years’ and fifteen years’ imprisonment,
respectively. The Missouri Court of Appeals affirmed Smith’s conviction and
sentence. State v. Smith, 430 S.W.3d 338 (Mo. Ct. App. 2014) (order) (per
curiam).
Smith thereafter filed a motion for post-conviction relief under Missouri
Supreme Court Rule 29.15, which was denied after an evidentiary hearing. On
March 1, 2016, the Missouri Court of Appeals affirmed the denial of postconviction relief. Smith v. State, 482 S.W.3d 825 (Mo. Ct. App. 2016) (order) (per
curiam). Mandate issued March 23, 2016.
Smith timely filed this federal habeas petition on April 13, 2016, raising the
following grounds for relief:
1) That he was denied due process when the trial court denied his request
for mistrial and gave only an oral instruction to the jury regarding the
prosecutor’s reference to a voice stress analysis during his cross-examination
of Smith;
2) That trial counsel was ineffective for failing to call Tiara Jones and
William Stewart as witnesses at trial;
3) That trial counsel was ineffective for failing to argue to the jury that
Marquan Prete did not grab the victim from behind during the shooting; and
4) That trial counsel and direct appeal counsel were ineffective for failing to
raise a claim that his right to a speedy trial was violated.

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In response, respondent avers that Smith properly raised these claims in state court
and that the Missouri Court of Appeals determined the claims to be without merit.
Respondent contends that the court of appeals’ determinations are objectively
reasonable and are thus entitled to deference. For the following reasons, I agree.
Legal Standard
Where the state court adjudicated a claim on the merits, federal habeas relief
can be granted on the claim only if the state court adjudication “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,”
28 U.S.C. § 2254(d)(1); 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)(2). See Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law
must be clearly established at the time petitioner’s state conviction became final,
and the source of doctrine for such law is limited to the United States Supreme
Court. Id. at 380-83.
A state court’s decision is “contrary to” clearly established Supreme Court
precedent when it is opposite to the Supreme Court’s conclusion on a question of
law or different than the Supreme Court’s conclusion on a set of materially
indistinguishable facts. Williams, 529 U.S. at 412-13; Carter v. Kemna, 255 F.3d
589, 591 (8th Cir. 2001). A state court’s decision is an “unreasonable application”

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of Supreme Court precedent if it “identifies the correct governing legal principle
from [the Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner’s case.” Williams, 529 U.S. at 413. Merely erroneous or
incorrect application of clearly established federal law does not suffice to support a
grant of habeas relief. Instead, the state court’s application of the law must be
objectively unreasonable. Id. at 409-11; Jackson v. Norris, 651 F.3d 923, 925 (8th
Cir. 2011). Finally, when reviewing whether a state court decision involves an
“unreasonable determination of the facts” in light of the evidence presented in the
state court proceedings, a federal court must presume that state court findings of
basic, primary, or historical facts are correct unless the petitioner rebuts the
presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Rice v.
Collins, 546 U.S. 333, 338-39 (2006); Collier v. Norris, 485 F.3d 415, 423 (8th
Cir. 2007). Erroneous findings of fact do not ipso facto ensure the grant of habeas
relief. Instead, the determination of these facts must be unreasonable in light of the
evidence of record. Collier, 485 F.3d at 423; Weaver v. Bowersox, 241 F.3d 1024,
1030 (8th Cir. 2001).
The federal court is “bound by the AEDPA [Antiterrorism and Effective
Death Penalty Act] to exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). To
obtain habeas relief from a federal court, the petitioner must show that the

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challenged state court ruling “rested on ‘an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.’” Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). This standard is difficult to
meet. Id.
Relevant Factual Background
Evidence adduced at trial showed that Smith’s home was burglarized in
early 2011. On February 6, 2011, Anthony Ramsey, an acquaintance of Smith’s,
went to Smith’s home to tell him that Christopher “Merk” Scott was the person
who burglarized his home and that there was another plan to rob him. Later that
day, Scott arrived at Smith’s house to purchase heroin. In addition to Smith, Scott,
and Ramsey, Marquan Prete and another individual were present at the house.
While Scott was sitting on Smith’s couch, Smith grabbed a gun, hit Scott with it,
and asked Scott where his “stuff” was. Smith and Scott then wrestled over the gun.
Smith fired the gun, hitting Scott in the neck. As Scott attempted to flee, the other
individual present struck him with a broom handle and Scott fell. When Scott got
up and turned back toward Smith, Smith shot him again, striking him in the right
eye and killing him.
Smith wrapped Scott’s body in plastic and duct tape. He drove the body to
East St. Louis, Illinois, where he discarded it next to some dumpsters, poured

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gasoline on it, and set it on fire. While crossing the bridge returning to Missouri,
Smith threw the gun he had used to kill Scott into the Mississippi River.
Smith’s defense at trial was that he acted in self-defense.
Discussion
Ground 1:

Trial Court’s Failure to Declare Mistrial After Prosecutor’s Reference
to Voice Stress Test

Smith testified in his own defense at trial. He testified that he voluntarily
went to the police station on February 13, 2011, after receiving a message from the
police. He testified that he first told the police that he was not involved in the
incident, but then told them that he shot an intruder who was breaking into his
home and later discovered that it was Scott. Smith then testified that he later gave
a third version to the police, that is, that he accidentally shot Scott when Scott
jumped off the couch and attacked him.
On cross-examination, Smith admitted that he talked to the police several
times and that he first denied any knowledge of the incident. Smith also testified
that although he told the police that he lit Scott’s body on fire, it was someone else
who actually set fire to the body. The prosecutor continued, “And they did a voice
stress analysis on you that you agreed to take, and they came back saying: We
think you’re lying.” (Resp. Exh. 1 at 405-06.) At that point, defense counsel
objected and moved for a mistrial, claiming that any reference to or results from a
voice stress test are not admissible because they are unreliable, and that permitting
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such reference prejudiced Smith given that his credibility was a key factor in his
defense. The court overruled the motion for mistrial, but gave a curative
instruction to the jury, telling them to ignore the prosecutor’s question and not to
speculate as to what answer may have been given. (Id. at 419.)
Smith claims that the failure to grant a mistrial denied him due process.
Smith raised this claim on direct appeal. Upon review of the merits of the claim,
the Missouri Court of Appeals denied relief.
Whether evidence may be admitted in a state court trial is a matter of state
law. Weston v. Dormire, 272 F.3d 1109, 1113 (8th Cir. 2001). This includes
evidence related to polygraph tests or, in this case, voice stress tests. Id. Whether
to grant a mistrial is likewise a matter of state law and is left to the trial judge’s
discretion. Schneider v. Delo, 890 F. Supp. 791, 838 (E.D. Mo. 1995). “It is a
drastic remedy only to be utilized when no other means exist to minimize or
remove the prejudice to the defendant.” Id.
It is well established that federal habeas relief does not lie for errors of state
law and that a federal habeas court may not re-examine state-court determinations
on state-law questions. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). For
purposes of habeas review under 28 U.S.C. § 2254, therefore, I consider only the
question of whether the state trial court’s ruling on Smith’s motion for mistrial
rendered his trial fundamentally unfair so as to deny due process. Weston, 272

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F.3d at 1113. Under this standard, Smith must show that there is a reasonable
probability that the error complained of affected the outcome of the trial, that is,
that absent the alleged error, the verdict probably would have been different.
Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999).
Here, the Missouri Court of Appeals found that Smith did not meet this
standard. Assuming for the sake of argument that the prosecutor should not have
referenced the voice stress test, the court of appeals determined that such error did
not prejudice the jury to the point of depriving Smith of a fair trial, and therefore
that the trial court’s failure to grant a mistrial did not violate Smith’s right to due
process. (Resp. Exh. 5, Memo. at pp. 4-5.) The court of appeals considered, first,
that the prosecutor mentioned the voice stress test only once and did not attempt to
use the test as part of a “theme” to infer Smith’s lack of credibility. The court of
appeals also noted that the trial court sustained defense counsel’s immediate
objection to this reference and provided a curative instruction to the jury to
disregard the question and to refrain from speculating as to what the response may
have been. (Id. at p. 5.) Most notably, the court of appeals observed that Smith
had already admitted in his testimony that he had lied to the police, and further that
overwhelming evidence established Smith’s guilt. The court of appeals thus
determined that even in the absence of the prosecutor’s improper reference, a
reasonable jury would have found that the evidence overwhelmingly established

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Smith’s lack of credibility as well as his guilt of second degree murder and armed
criminal action. (Id. at p. 6.)
Given the isolated nature of the prosecutor’s comment, the curative
instruction, the fact that Smith had already admitted through his testimony that he
lied to the police (about both the circumstances of the shooting and who burned the
victim’s body), and the overwhelming evidence of guilt and Smith’s lack of
credibility, it cannot reasonably be said that the prosecutor’s passing reference to
the voice stress test rendered Smith’s trial fundamentally unfair such that the trial
court should have declared a mistrial. See Weston, 272 F.3d at 1113.
The Missouri Court of Appeals’ determination was neither contrary to nor an
unreasonable application of Supreme Court precedent. Nor has Smith
demonstrated that the decision was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. Smith’s claim
that the trial court’s failure to declare a mistrial deprived him of due process is
denied.
Ground 2:

Trial Counsel’s Failure to Call Jones and Stewart as Witnesses

Anthony Ramsey testified for the State at trial. He testified that when he
arrived at Smith’s house on February 6, he spoke with Smith’s girlfriend, Tiara
Jones, but could not remember what they talked about. Smith avers that if called
as a witness, Jones would have testified that her conversation with Ramsey

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involved Ramsey telling her that Scott and another person were coming to Smith’s
home to rob and kill him. Ramsey also testified that William Stewart told him that
Smith thought Scott was the person who had broken into his home. Smith avers
that if called as a witness, Stewart would have testified that he never told Ramsey
this, and that instead Ramsey told Stewart that Scott planned to rob and kill Smith.
Smith claims that trial counsel was ineffective in failing to call Jones and
Stewart to testify on his behalf at trial. Smith raised this claim in his Rule 29.15
post-conviction motion and on appeal of the denial of the motion. Upon
consideration of the merits of the claim, the Missouri Court of Appeals denied
relief.
At the time Smith’s conviction became final, the law was clearly established
that the Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To be
entitled to federal habeas relief on his claim of ineffective assistance of counsel,
Smith must show that 1) his counsel’s performance was deficient, and 2) the
deficient performance prejudiced his defense. Id. In order to prevail on this claim,
Smith must satisfy both components of the Strickland test. Accordingly, if he
makes an “insufficient showing” on one component, I am not required to address
the other. Id. at 697.
In evaluating counsel’s performance, the basic inquiry is “whether counsel’s

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assistance was reasonable considering all the circumstances.” Strickland, 466 U.S.
at 688. Smith bears a heavy burden in overcoming “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. In addition, a presumption exists that counsel’s conduct
“might be considered sound trial strategy.” Id. at 688. “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable[.]” Id. at 690-91. To establish prejudice, Smith “must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
With respect to Smith’s claim regarding Jones, the Missouri Court of
Appeals noted that trial counsel chose not to call her to testify after the investigator
interviewed her. The Missouri Court of Appeals determined that counsel’s
decision was a matter of sound trial strategy, based on evidence that
Jones failed to appear at two deposition settings arranged by trial
counsel. Even after Jones was personally served with a subpoena to
appear as a witness for the State, she failed to appear at trial despite
telling the prosecutor that she was on her way. . . . [I]n arguing against
the State’s request for body attachment of Jones, trial counsel stated
that Jones had made several inconsistent statements to police and
allowing Jones to testify would deprive [Smith] of a fair trial.
(Resp. Exh. 11, Memo. at pp. 5-6.)

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Counsel does not render deficient performance in failing to call an
uncooperative witness to testify or a witness whose testimony could be detrimental
to the defense. Forest v. Delo, 52 F.3d 716, 722 (8th Cir. 1995) (uncooperative
witness); Johns v. Bowersox, 203 F.3d 538, 546 (8th Cir. 2000) (reasonable not to
present evidence that would be more detrimental than helpful); Haley v.
Armontrout, 924 F.2d 735, 740 (8th Cir. 1991) (counsel did not render ineffective
assistance by failing to use witness testimony that would not have benefitted
petitioner and may have had significant detrimental effect). “[A] reasoned
decision not to call a witness is a virtually unchallengeable decision of trial
strategy.” Rodela-Aguilar v. United States, 596 F.3d 457, 464 (8th Cir. 2010)
(internal citation and quotation marks omitted).
With respect to Stewart, the court of appeals noted that the purpose of his
proffered testimony was to impeach Ramsey by attacking his credibility. The court
observed that trial counsel had already “comprehensively attacked Ramsey’s
credibility” by impeaching him with his prior criminal history and prior
inconsistent statements. (Resp. Exh. 11, Memo. at pp. 6-7, n.4.) Further, the court
noted that even if Stewart would have testified, his proffered testimony would not
have established Smith’s defense because Stewart would not have testified that he
relayed the message to Smith that Scott intended to rob him. Accordingly, the
testimony would not have established Smith’s state of mind relevant to his claim of

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self-defense. (Id. at p. 6.) The court of appeals therefore determined that Smith
failed to show that he was prejudiced as a result of counsel’s failure to call Stewart
to testify, especially given the overwhelming evidence of guilt. (Id. at p. 7.) There
is no prejudice in failing to call a witness to testify if, factoring in their testimony,
the government’s case remains overwhelming. McCauley-Bey v. Delo, 97 F.3d
1104, 1106 (8th Cir. 1996).
The Missouri Court of Appeals’ decision was neither contrary to nor
involved an unreasonable application of clearly established federal law. Nor was it
based on an unreasonable determination of the facts. The court identified the
correct governing legal rule on ineffective assistance of counsel from Strickland
and reasonably applied it to the facts of the case. It was not objectively
unreasonable for the court of appeals to conclude that counsel’s decision to not call
Jones as a defense witness was a matter of trial strategy and that failure to call
Stewart did not change the outcome of the trial. This claim of ineffective
assistance of trial counsel is denied.
Ground 3:

Trial Counsel’s Failure to Present Argument Regarding Prete’s
Physical Location During the Shooting.

There was competing testimony at trial regarding where Marquan Prete was
and what he was doing when Smith first shot Scott. Prete testified that he was
standing next to Scott when Smith fired the first shot and that the gun rang in his
ear, causing him to pass out. Ramsey testified that Prete was behind Scott, trying
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to put him in a “full Nelson,” but that he had difficulty doing so because he was
shorter than Scott. Smith testified that Prete did not try to grab Scott.
In his third ground for relief, Smith claims that trial counsel was ineffective
during closing argument when she failed to argue to the jury that Prete was not
holding Scott from behind. Smith raised this claim in his post-conviction motion
and on appeal of the denial of the motion. Upon review of the merits of the claim,
the Missouri Court of Appeals determined that counsel’s failure to argue to the jury
that Prete was not trying to hold Scott from behind during the shooting was
reasonable trial strategy. “At trial, the State did not argue that Prete had restrained
or attempted to restrain Victim during the shooting. . . . [I]t was reasonable trial
strategy for trial counsel not to make an argument against an assertion that the
State had not made, especially when the record indicates no evidence supporting
such assertion.” (Resp. Exh. 11, Memo. at pp. 8-9.) This decision is supported by
the record and entitle to deference.
In Yarborough v. Gentry, the Supreme Court explained the deference courts
give to defense counsel’s decisions regarding closing argument:
[C]ounsel has wide latitude in deciding how best to represent a client,
and deference to counsel’s tactical decisions in [her] closing
presentation is particularly important because of the broad range of
legitimate defense strategy at that stage. Closing arguments should
sharpen and clarify the issues for resolution by the trier of fact, but
which issues to sharpen and how best to clarify them are questions
with many reasonable answers. . . . Judicial review of a defense
attorney’s summation is therefore highly deferential – and doubly
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deferential when it is conducted through the lens of federal habeas.
540 U.S. 1, 5-6 (2003) (internal quotation marks and citations omitted). Here,
given that the State made no argument that Prete had attempted to hold Scott when
Smith shot him, it was reasonable for counsel not to address the issue, especially
with the competing testimony and the lack of conclusive evidence either way.
Smith has failed to overcome the presumption that, under the circumstances,
counsel’s challenged action could be considered sound trial strategy. Strickland,
466 U.S. at 688.
I am not aware of any “clearly established Federal law, as determined by the
Supreme Court of the United States” of which the state court’s decision runs afoul,
nor has Smith demonstrated such. Therefore, it cannot be said that the court’s
determination “resulted in a decision that was contrary to, or involved an
unreasonable application of,” clearly established federal law. 28 U.S.C. §
2254(d)(1). Nor has Smith shown that the court’s determination “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)(2).
Smith is not entitled to habeas relief on this claim.
Ground 4:

Counsel’s Failure to Raise a Claim of a Speedy Trial Violation

Smith was charged by criminal complaint on February 14, 2011, which was
amended on February 15. On March 1, Smith filed a pro se motion for speedy

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trial, requesting trial within 180 days. Smith was indicted on March 16. Trial
counsel entered her appearance at Smith’s arraignment, which occurred on March
23. Smith’s trial began nearly two years later, on March 4, 2013. Trial counsel
never brought the speedy trial issue to the attention of the trial court, nor did the
court address the issue. Nor did counsel raise a speedy trial claim on direct appeal.
Smith claims that both trial counsel and direct appeal counsel were ineffective for
failing to pursue a claim that his right to speedy trial was violated.
Smith raised his claims of ineffective assistance of counsel in his postconviction motion and on appeal of the denial of his motion. On appeal, the
Missouri Court of Appeals reviewed Smith’s underlying claim that his Sixth
Amendment right to a speedy trial was violated. Applying the factors set out in
Barker v. Wingo, 407 U.S. 514 (1972),2 the court of appeals found Smith’s Sixth
Amendment claim to be without merit. Specifically, the court noted that the
pretrial process included several settlement conferences and pretrial hearings; that
Smith filed motions to suppress, which were scheduled and heard by the court; and
that trial settings were continued because of court conflicts and at Smith’s request
so that he could pursue pretrial motions. (Resp. Exh. 11, Memo. at p. 11.)
On the first trial date, [Smith] wanted to pursue motions to suppress
evidence and statements, thus, a continuance was granted. Also, the
evidence at the post-conviction evidentiary hearing established some
2

The Barker factors are: 1) length of delay, 2) the reason for the delay, 3) the defendant’s
assertion of his right, and 4) prejudice to the defendant. Barker, 407 U.S. at 530.
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of the delay was attributable to the defense’s need to complete
discovery and prepare for trial. The discovery took longer than usual
because one witness, Jones, had failed to appear twice for depositions
arranged by trial counsel. Furthermore, [Smith] did not inform his
trial counsel of his pro se speedy trial motion and the counsel was
unaware of such motion. [Smith] neither asked trial counsel about his
court dates nor voiced any objection to his trial being continued.
Accordingly, the delay is partially attributable to [Smith].
(Id.) The court of appeals also noted that Smith filed his pro se motion three
weeks before counsel entered her appearance, did not inform counsel of the
motion, and did not thereafter express his desire for a speedy trial. (Id. at p. 12.)
Finally, the court noted that Smith conceded that the delay did not impair his
defense, and that his only complaint was that he had to spend “dead time” in jail
waiting for his trial to begin. (Id.)
Weighing all of the Barker factors, the court of appeals concluded that Smith
was not deprived of his right to a speedy trial. (Resp. Exh. 11, Memo. at p. 13.) It
therefore determined that trial counsel was not ineffective for failing to file a
motion to dismiss based on a speedy trial violation, given that such a motion would
have likely been denied. (Id.) Counsel does not act “outside the spectrum of
professionally reasonable performance” in failing to pursue an argument that is
unlikely to succeed. McReynolds v. Kemna, 208 F.3d 721, 724 (8th Cir. 2000).
For this same reason, the court of appeals determined that direct appeal
counsel was not ineffective in failing to raise this non-meritorious claim on appeal.
(Resp. Exh. 11, Memo. at p. 13.) See Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)
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(criminal defendant entitled to effective assistance of counsel on direct appeal);
Garrett v. United States, 78 F.3d 1296, 1305 (8th Cir. 1996) (direct appeal counsel
not ineffective in failing to raise non-meritorious claim). The court of appeals
found this to be especially true here, given that the speedy trial claim was not
raised in Smith’s motion for new trial and therefore could have been reviewed on
appeal only for plain error. Based on its own analysis of the claim, the court
determined that the record on direct appeal would not have shown that the delay
caused any manifest injustice, which is required to prevail on an unpreserved
claim. (Resp. Exh. 11, Memo. at p. 13.) Therefore, if counsel had indeed raised
the claim on direct appeal, it is not likely that the outcome of the appeal would
have been different. Smith therefore cannot succeed on his claim of ineffective
assistance of direct appeal counsel. Chambers v. Bowersox, 157 F.3d 560, 566
(8th Cir. 1998) (Strickland applies to claims of ineffective assistance of direct
appeal counsel); Armstrong v. Gammon, 195 F.3d 441, 445 (8th Cir. 1999) (where
petitioner does not show a reasonable probability that the outcome of his appeal
would have been different, claim of ineffective assistance of direct appeal counsel
fails).
Although Smith argues in his Traverse that appellate counsel gave
inconsistent statements regarding his knowledge of Smith’s pro se motion for
speedy trial, this circumstance does not change the analysis. The Missouri Court

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of Appeals’ determination that counsel was not ineffective was based on its own
analysis of the underlying Sixth Amendment claim and its conclusion that Smith
would not have prevailed on the claim. Whether or not direct appeal counsel was
aware of Smith’s pro se motion was not relevant to this analysis.
The Missouri Court of Appeals’ decision was well based on law and fact and
was not “contrary to, or involved an unreasonable application of,” clearly
established federal law. 28 U.S.C. § 2254(d)(1). Nor has Smith shown that the
court’s determination “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)(2). The claims raised in Ground 4 of Smith’s
habeas petition are denied.
Certificate of Appealability
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals
from the final order denying habeas relief in a § 2254 proceeding unless a circuit
justice or judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A).
To grant such a certificate, the justice or judge must find a substantial showing of
the denial of a federal constitutional right. 28 U.S.C. § 2253(c)(2); see Tiedeman
v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing
that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565,

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569 (8th Cir. 1997). I find that reasonable jurists could not differ on any of
Smith’s claims, so I will deny a Certificate of Appealability on all claims.
Accordingly,
IT IS HEREBY ORDERED that Stanley Payne is substituted for Troy
Steele as proper party respondent.
IT IS FURTHER ORDERED that the petition of Ernest L. Smith for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 [1] is denied.
IT IS FURTHER ORDERED that a Certificate of Appealability will not
issue in this action because petitioner has not made a substantial showing of a
denial of a constitutional right.
A separate Judgment is entered herewith.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 7th day of October, 2019.

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