Thompson v. Villmer

Filing 13

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 1 is DENIED. IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FINALLY ORDERED that no certificate of appe alability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. §2253. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Shirley Padmore Mensah on 9/23/19. (KEK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN THOMPSON,

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Petitioner,
v.
TOM VILLMER,
Respondent.

No. 4:16-CV-0761-SPM

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Kevin Thompson’s (“Petitioner”) pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent filed a response to
the Petition (Doc. 6), to which Petitioner filed a traverse (Doc. 8). The parties have consented to
the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 16).
For the following reasons, the petition for a writ of habeas corpus will be denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2011, Petitioner was indicted on three counts of statutory sodomy in the

second degree. See Resp’t Ex. A, at 14-15. On April 11, 2012, a superseding indictment charged
defendant with eleven counts of statutory sodomy in the second degree. See id. at 22-26. On August
22, 2012, a jury found Petitioner guilty of eleven counts of statutory sodomy in the second degree.
See Resp’t Ex. A., at 79-89. On November 8, 2012, judgment was entered on all eleven counts,
and Petitioner was sentenced. See id. at 90-97.
The Missouri Court of Appeals summarized the background and facts as follows:
On March 9, 2011, [Petitioner] was indicted on eleven counts of
second-degree statutory sodomy in violation of Section 566.064.
The charges stemmed from [Petitioner]’s mouth-to-genital contact
with the victim E.J. on seven separate occasions, and hand-to-genital
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contact with the victim E.J. on four separate occasions, all when E.J.
was less than seventeen years of age, between May 1, 2009, and
June 1, 2010. Detective Timothy Herr (“Detective Herr”) of the
Hazelwood Police Department investigated the sexual allegations
involving [Petitioner] and E.J. and interviewed both parties. The
Children’s Advocacy Center (“CAC”) also interviewed E.J. This
interview was recorded and portions were played at trial. Detective
Herr was present at the CAC interview and took notes.
(Resp’t Ex. J at 2).
In April 2013, the Missouri Court of Appeals, on direct appeal, affirmed Petitioner’s
conviction. Resp’t Ex. E at 1. Petitioner subsequently filed a pro se Rule 29.15 Motion for postconviction relief, asserting ineffective assistance of his trial counsel, alleging that she: (i) failed to
adequately cross examine Detective Herr about his police report and recollections concerning
E.J.’s CAC statement; (ii) failed to object to the prosecutor’s use of leading questions throughout
the direct examination of E.J.; and (iii) failed to investigate and depose E.J. prior to trial. Resp’t
Ex. G at 6. In his amended motion for post-conviction relief, filed through counsel, Petitioner
raised identical claims of ineffective assistance of counsel. Id. at 30. The motion court denied the
claims on the merits without an evidentiary hearing. Id. at 60. On appeal, Petitioner raised the same
three claims. Resp’t Ex. H at 14-16. The Missouri Court of Appeals affirmed the motion court’s
denial of his motion for post-conviction relief. Resp’t Ex. J at 3.
On May 27, 2016, Petitioner filed the instant petition for a writ of habeas corpus, alleging
six grounds for relief: (1) that his trial counsel was ineffective for failing to investigate and depose
the victim before trial; (2) that his trial counsel was ineffective for failing to object to the
prosecutor’s use of leading questions during the direct examination of the victim; (3) that his trial
counsel was ineffective for failing to cross-examine Detective Herr with his police report; (4) that
Petitioner’s convictions violated the double jeopardy clause; (5) that the trial court erred by failing
to declare a mistrial during the state’s closing argument based on improper personalization; and
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(6) that the trial court erred by failing to declare a mistrial during the state’s closing argument after
the prosecutor characterized Petitioner as a pedophile without any evidentiary basis. (Doc. 1).
II.

LEGAL STANDARDS
A. Standard for Reviewing Habeas Corpus Claims on the Merits
A federal judge may issue a writ of habeas corpus freeing a state prisoner, if the prisoner

is “in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C.
§ 2254(a). However, the judge may not issue the writ if an adequate and independent state-law
ground justified the prisoner’s detention, regardless of the federal claim. See Wainwright v. Sykes,
433 U.S. 72, 81-88 (1977).
Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by the AEDPA [the
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) (citing 28
U.S.C. § 2254). Under the AEDPA, a federal court may not grant relief to a state prisoner with
respect to any claim that was adjudicated on the merits in the state court proceedings unless the
state court’s adjudication of the claim “(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the States court proceeding.” 28
U.S.C. § 2254(d).

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A state court decision is “contrary to” clearly established Supreme Court precedent “if the
state court arrives at a conclusion opposite to that reached by [the United States Supreme] Court
on a question of law or if the state court decides a case differently than [the United States Supreme]
Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529, 412-13 (2000).
“[A] state court decision involves an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it is shown that the state court’s
presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359
F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v.
Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct
unless the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C.
§ 2254(e)(1)).
B. Procedural Default
To preserve a claim for federal habeas review, a state prisoner must present that claim to
the state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers,
446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised
before the state court are procedurally defaulted.” Id. The federal habeas court will consider a
procedurally defaulted claim only “where the petitioner can establish either cause for the default
and actual prejudice, or that the default will result in a fundamental miscarriage of justice.” Id.
(citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v. Groose, 75 F.3d 408, 411
(8th Cir. 1996) (en banc)). The procedural default doctrine and its attendant cause and prejudice
standard are grounded in concerns of comity and federalism, and apply alike whether the default

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in question occurred at trial, on appeal, or on state collateral attack. See Coleman, 501 U.S. at 730;
Murray v. Carrier, 477 U.S. 478, 490-92 (1986).
To demonstrate cause, a petitioner must show that “some objective factor external to the
defense impeded [the petitioner’s] efforts to comply with the State’s procedural rule.” Id. at 488.
To establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982). Lastly, in order to assert the fundamental
miscarriage of justice exception, a petitioner must “ ‘present new evidence that affirmatively
demonstrates that he is innocent of the crime for which he was convicted.’ ” Murphy v. King, 652
F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
III.

DISCUSSION
A. Claims Addressed in State Court: Grounds One, Two, and Three
The following claims were addressed on the merits in a state court proceeding. As such,

the AEDPA requires this court to exercise only limited deferential review of the underlying state
court decision. 28 U.S.C. § 2254. This Court will grant relief only if the state’s adjudication of the
claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).
a. Grounds One, Two, and Three: Ineffectiveness of Petitioner’s Trial Counsel
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective assistance of
counsel, a petitioner must show both that “[his] counsel’s performance was deficient” and that “the

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deficient performance prejudiced [his] defense.” Strickland, 466 U.S. at 687; see also Paulson v.
Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance, a
petitioner must show “that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential,” and Petitioner bears a
heavy burden in overcoming “a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance” and “might be considered sound trial strategy.” Id. at
689 (citation and internal quotation marks omitted). To show prejudice, Petitioner 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.” Id. at 694.
When an ineffective assistance claim has been addressed by the state court, this Court must
bear in mind that “[t]aken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v.
Pinholster, 563 U.S. 170, 201 (2011)). In the context of a habeas claim, it is not sufficient for a
petitioner to “show that he would have satisfied Strickland’s test if his claim were being analyzed
in the first instance,” Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Rather, he must show that the
[state court] applied Strickland to the facts of his case in an objectively unreasonable manner.” Id.
at 699.
i. Trial Counsel’s Failure to Depose the Victim
In Ground One, Petitioner alleges that his trial counsel was ineffective for failing to
investigate and depose the victim as a material witness prior to trial. Petitioner asserts that his
attorney should have deposed E.J. as a material witness before trial so that his testimony would

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have been preserved and would have allowed for more effective impeachment of inconsistent
statements. Petitioner raised this claim on appeal from the denial of post-conviction relief, and the
Missouri Court of Appeals denied it on the merits, stating:
Although [Petitioner] complains trial counsel was ineffective in not
conducting her own deposition of E.J., [Petitioner] does not allege what
information trial counsel could have developed from a deposition that was not
obtained in E.J.’s earlier interview at CAC. [Petitioner] therefore failed to show
trial counsel’s preparedness for trial was affected by not conducting said
deposition. Specifically, [Petitioner] fails to identify what trial counsel would
have discovered, that was not otherwise known to her, had she interviewed and
deposed E.J. In fact, the motion court noted trial counsel’s decision not to
interview E.J. prior to trial may have been strategic in that such an interview, if
conducted, would give E.J. more practice in answering questions in
preparedness for his trial testimony as well as a familiarity with trial counsel,
her style of questioning, and the questions she would ask him at trial.
Additionally, choosing not to depose a State’s witness, especially when it is
known what that witness is going to say, avoids highlighting or alerting the State
to weaknesses in the defense or defense strategy.
[Petitioner] does not explain how any deposition might have changed the
outcome. The motion court found [Petitioner] did not show what evidence might
have been found by additional formal discovery, including a deposition, or how
it would have improved [Petitioner]’s trial position and provided him a viable
defense. Thus, because [Petitioner] ultimately failed to show there is a
reasonable possibility the outcome of the case would have been different if trial
counsel had deposed E.J. prior to trial, he did not show he was entitled to an
evidentiary hearing on this claim. Point III is denied.
(Resp’t Ex. J, at 11) (citations omitted).
A review of the record shows that the Missouri Court of Appeals did not apply Strickland
to the facts of this case in an objectively unreasonable manner. The Missouri Court of Appeals
properly noted that the Strickland standard applied. Resp’t Ex. J, at 4. The Court agrees with the
state court’s determination that trial counsel’s decision not to interview E.J. prior to trial may have
been strategic in that such an interview, if conducted, could have given the victim practice in
answering questions about the events at issue, and could have served to better prepare him for
facing such questions at trial. Furthermore, the Missouri Court of Appeals reasonably found that

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Petitioner failed to identify anything trial counsel could have discovered about E.J.’s testimony
that was not already available to her by reviewing E.J.’s CAC interview, and therefore, her failure
to depose E.J. did not negatively impact counsel’s performance. As the Eighth Circuit has held, a
“defense counsel’s failure to depose [a witness] was not ineffective, where there was no reason to
suppose that doing so would have helped defendant’s case.” Robinson v. Maschner, 2 Fed. Appx.
683, 684 (8th Cir. 2001) (citations omitted). Because the Missouri Court reasonably applied
Strickland in evaluating this claim, its determination was not “contrary to, [nor did it involve] an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d). The Court will
deny relief on Ground One.
ii. Trial Counsel’s Failure to Object to Leading Questions
Petitioner’s second ground for relief alleges that Petitioner’s trial counsel was ineffective
for failing to object to the prosecutor’s use of leading questions throughout the direct examination
of the victim. Specifically, Petitioner asserts that the timing of the sex acts was a crucial part of
the State’s case against him, and the prosecutor repeatedly used leading questions during his direct
examination of E.J. in order to indicate that oral sex happened multiple times before E.J. was
seventeen, and that if Petitioner’s counsel had objected to such leading questions, the trial outcome
would have been different. Petitioner raised this claim in his Rule 29.15 post-conviction motion
and on appeal from the denial of that motion. The Missouri Court of Appeals considered the claim
and rejected it on the merits, stating:
[Petitioner] asserts trial counsel was ineffective in failing to object to the
prosecutor’s purported leading questions of E.J. [Petitioner] complains of the
prosecutor’s questioning of E.J. as to the timing of the sexual acts committed by
[Petitioner], the number of times the acts occurred, and the details E.J. gave his
caseworker. The motion court found these questions were largely follow-up
questions to questions already asked of E.J. by the prosecutor, for purposes of
clarification and elucidation. Questions presented in a leading form on matters
already covered are not objectionable.
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Further, decisions about whether or when to make objections at trial are
left to the judgment of counsel. Ineffective assistance of counsel is not to be
determined by a post-trial academic determination that counsel could have
successfully objected to evidence in a given number of instances. Failing to
object to objectionable evidence does not establish ineffective assistance of
counsel unless the evidence resulted in a substantial deprivation of the accused’s
right to a fair trial.
Finally, the motion court noted E.J. was a young witness discussing an
embarrassing set of facts and the motion court, which also sat as the trial court,
stated it would have given some latitude to the prosecutor’s questioning and thus
trial counsel was not ineffective for failing to make objections that would have
been overruled. Trial courts have great latitude in allowing and forbidding
leading questions.
Timing, Number, and Details of Acts
E.J. testified he moved in with [Petitioner] on May 14, 2010. E.J.
testified he turned seventeen on June 9, 2010. One of the important issues at trial
was whether [Petitioner] performed sex acts with E.J. before E.J. turned
seventeen. Therefore, the State had to ensure through its questioning of E.J. that
it was made clear to the jury when each sexual act described by E.J. occurred,
relative to E.J.’s moving in with [Petitioner], his birthday, and his age at the time
of the act. This required confirming and clarifying questions directed to E.J.,
with regard to information already testified to by E.J., to present the information
in a chronological context so that the jury could determine, in deliberating and
arriving at its verdict, whether or not each sex act occurred before E.J. was
seventeen years old.
The questions directed to E.J. by the State as to how many times
[Petitioner] did certain things to E.J. and to describe them were not leading. They
were mere questions. Defense counsel was free to cross-examine E.J. on his
answers and extensively did so. On redirect, the State again asked questions to
reestablish and clarify what E.J. had already testified to, after defense counsel
attempted to impeach his credibility as to the timing, nature, and number of
[Petitioner]’s actions.
Prejudice
Furthermore, [Petitioner] suffered no prejudice. The motion court found,
and we agree, that the State’s questions directed to E.J. were largely
supplemental clarifying elicitations of the facts and information E.J. had already
revealed through his testimony. Objections, like the one made by trial counsel
during the State’s redirect and overruled by the trial court, if sustained would
only result in the information being elicited in another manner. Objections
would also serve to highlight E.J.’s testimony of [Petitioner]’s sexual abuse of
E.J., already described in detail on a number of occasions, which trial counsel
may want to avoid doing as a matter of sound trial strategy.
[Petitioner] failed to rebut the presumption trial counsel’s failure to
object was a strategic choice. In arguing ineffectiveness, a movant must
overcome a strong presumption that counsel’s failure to object was sound trial
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strategy. In many instances, seasoned trial counsel do not object to otherwise
improper questions or arguments for strategic purposes. It is feared that frequent
objections irritate the jury and highlight the statements complained of, resulting
in more harm than good.
Finally, [Petitioner] confessed to Detective Herr on tape to committing
oral sex on E.J. seven or eight times prior to E.J. moving in with him on May 14,
2010, i.e., prior to E.J. turning seventeen. This tape was played for the jury.
[Petitioner]’s claim of ineffective assistance of counsel for counsel’s failure to
object to allegedly leading questions sets forth no facts entitling him to an
evidentiary hearing. Point II is denied.
(Resp’t Ex. J. at 8-11) (citations omitted.
As discussed above, to prevail on his ineffective assistance claim, Petitioner must show
both that “[his] counsel’s performance was deficient” and that “the deficient performance
prejudiced [his] defense.” Strickland, 466 U.S. at 687. To show prejudice, Petitioner 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.” Id. at 694. In addition, because the state court addressed
this claim on its merits, Petitioner can prevail only by showing that the state court applied
Strickland to the facts of this case in an objectively unreasonable manner. See Bell, 535 U.S. at
698-99.
A review of the record shows that the Missouri Court of Appeals did not apply Strickland
to the facts of this case in an objectively unreasonable manner. The Court of Appeals noted that a
trial court has great latitude regarding whether to allow leading questions, and would have been
more likely than usual to allow such questioning where, as here, the witness was a young person
testifying to highly personal and potentially embarrassing matters. Failing to object, when such an
objection would almost certainly not have been sustained, is not ineffective. Furthermore, the
Court of Appeals reasonably found that trial counsel’s decision not to object seemed a matter of
sound trial strategy, as to object could have served to emphasize E.J.’s testimony regarding

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Petitioner’s abuse. This Court agrees with the state court’s determination that trial counsel’s
decision not to object was well within the “wide range of reasonable professional assistance”
countenanced by Strickland. Strickland, 466 U.S. at 688. Because the Missouri Court reasonably
applied Strickland in evaluating this claim, its determination was not “contrary to, [nor did it
involve] an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d).
The Court will deny relief on Ground Two.
iii. Trial Counsel’s Failure to Cross-Examine Detective Herr
Petitioner’s third ground for relief alleges that Petitioner’s trial counsel was ineffective for
failing to cross-examine Detective Herr with his police report. Specifically, Petitioner alleges that
his attorney did not adequately cross-examine the Detective about the fact that his police report
indicated that E.J. stated that the “big stuff” (referring to sexual activity) happened after he moved
into Petitioner’s house, which differed from E.J.’s testimony about when the sex acts occurred,
and that if his attorney had cross-examined him more effectively, the outcome of the trial would
have been different. Petitioner raised this claim on appeal from the denial of post-conviction relief,
and the Missouri Court of Appeals considered this claim and rejected it on the merits, stating:
[Petitioner] claims trial counsel was ineffective for failing to crossexamine Detective Herr with his police report from the CAC interview wherein
E.J. stated the oral sex began after he moved into [Petitioner]’s house.
[Petitioner] maintains this claim merited an evidentiary hearing because E.J.’s
trial testimony about when the oral sex began differed from what he said in his
CAC interview, as documented in Detective Herr’s police report. [Petitioner]
contends the timing of when the oral sex began was a disputed point because the
State’s position was the sodomies occurred before E.J. turned seventeen years
old and before he moved in with [Petitioner], but [Petitioner]’s position was E.J.
had moved in and turned seventeen when the sexual activity occurred.
[Petitioner] claims had trial counsel cross-examined Detective Herr on this
subject and in this fashion, there is a reasonable probability the outcome of the
trial would have been different.
The motion court found no ineffectiveness on the part of trial counsel in
her cross-examination of Detective Herr. Rather, the motion court determined
trial counsel effectively and aggressively cross-examined Detective Herr, at times
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to the point of drawing objections from the prosecutor. The motion court found
[Petitioner]’s complaints about trial counsel’s failure to question Detective Herr
as to E.J.’s statements to the CAC interviewer in the manner proposed by
[Petitioner] were meritless because the jury heard the CAC interview, which
spoke for itself, during trial counsel’s cross-examination of E.J. Questioning
Detective Herr about the notes he took of what was said by E.J. in the interview
would only produce cumulative and irrelevant testimony in the face of the jury
hearing the interview itself. As such, this suggested manner of questioning
would not have produced the likelihood of a different outcome at [Petitioner]’s
trial, and did not merit an evidentiary hearing.
[Petitioner] maintains the motion court cannot speculate as to what trial
counsel’s trial strategy was, and had to hold an evidentiary hearing so that trial
counsel could testify as to her trial strategy. [Petitioner] cites to State v. Blue,
811 S.W.2d 405, 410 (Mo. App. E.D. 1991), for this proposition. However, in
Blue, counsel failed to call a witness altogether. We remanded for an evidentiary
hearing for counsel to explain her trial strategy in not doing so. We cited to State
v. Talbert, 800 S.W.2d 748, 749 (Mo. App. E.D. 1990), where our Court
determined that in the absence of an evidentiary hearing, there is no basis for
determining the trial counsel’s reason for failure to call a witness. Blue, 811
S.W.2d at 410. We found in Talbert the movant alleged what his witness would
have testified and, if true, the testimony would have been important to the
defense.
Here, trial counsel did not fail to call a witness who would have testified
to something important to [Petitioner]’s defense. Also, trial counsel thoroughly
cross-examined Detective Herr, portions of the interview were read into
evidence, and E.J. himself testified and was cross-examined by trial counsel as
to the relevant acts and dates thereof alleged by E.J. Questioning Detective Herr
about the notes he took of E.J.’s interview would only produce irrelevant
testimony in the face of the jury hearing the interview itself. As such, this
suggested manner of questioning would not have produced the likelihood of a
different outcome at [Petitioner]’s trial, and did not merit an evidentiary hearing.
Point I is denied.
(Resp’t Ex. J, at 6-8) (citations omitted).
A review of the record shows that the Missouri Court of Appeals did not apply Strickland
to the facts of this case in an objectively unreasonable manner with regard to this claim. After
reviewing the trial transcript, the Court agrees with the state court’s characterization of trial
counsel’s cross-examination of Detective Herr as both extensive and aggressive. Resp’t Ex. B, at
408-58. The Court also finds reasonable the Court of Appeal’s determination that it was not
ineffective for counsel to refrain from questioning the Detective about the notes he took during
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E.J.’s interview with the CAC. Portions of the CAC interview were read into evidence during trial,
and it is not clear how it could have bolstered Petitioner’s defense to hear redundant testimony
from Detective Herr regarding his notes of that same interview. Perhaps most saliently, and as
noted by the Missouri Court of Appeals, E.J. testified at trial, and was extensively cross-examined
by trial counsel regarding the alleged inconsistencies in his statements regarding the dates of
various sexual acts. In light of that, and given the strong presumption that trial counsel’s conduct
falls within the wide range of reasonable professional assistance, counsel’s failure to crossexamine the Detective about his notes did not negatively impact counsel’s performance, as doing
so would have added nothing of value to Petitioner’s defense. In light of the above, the undersigned
cannot conclude that the Missouri Court of Appeals’ determination was “contrary to, or an
unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d). The Court will
deny relief on Ground Three.
B. Procedurally Defaulted Claims: Grounds Four, Five, and Six
Petitioner’s remaining grounds for relief are as follows: Ground Four, that Petitioner’s
convictions violated the double jeopardy clause; Ground Five, that the trial court erred by failing
to declare a mistrial during the state’s closing argument based on improper personalization; and
Ground Six, that the trial court erred by failing to declare a mistrial during the state’s closing
argument after the prosecutor characterized Petitioner in a manner that was without an evidentiary
basis. Grounds Four, Five, and Six were presented in Petitioner’s direct appeal, but because they
were not properly preserved, the Missouri Court of Appeals did not review them on their merits.
Resp’t Ex. E. More specifically, as to the claim asserted in Ground Four, the Missouri Court of
Appeals found that because Petitioner conceded that the claim was not preserved for review, and
because he “failed to establish error, plain or otherwise” regarding a double jeopardy violation, the

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state court declined to conduct even plain error review. Id. at 7. As for the claims asserted in
Grounds Five and Six, the Missouri Court of Appeals did conduct plain-error review of both, and
determined that the trial court had not erred. However, as recently held by the Eighth Circuit, plainerror review by a state court will not revive a procedurally defaulted claim for purposes of federal
habeas review. See Clark v. Bertsch, 780 F.3d 873, 874 (8th Cir. 2015) (“[A] federal habeas court
cannot reach an otherwise unpreserved and procedurally defaulted claim merely because a
reviewing state court analyzed that claim for plain error.”).
Respondent asserts that because Petitioner’s Grounds Four, Five, and Six for habeas relief
are procedurally defaulted, they are not adequate bases for habeas relief. The Court agrees that
these Grounds are procedurally barred from federal court review, as Petitioner did not properly
preserve them for review at the state level. Furthermore, Petitioner presents no argument to excuse
the default, and the record contains no indication that he can show the requisite prejudice to
overcome a procedural bar, or that he is actually innocent. See Cagle v. Norris, 474 F.3d 1090,
1099 (8th Cir. 2007) (because Petitioner failed to establish cause to excuse his procedural default,
the district court need not consider whether prejudice had been shown); see also Abdi v. Hatch,
450 F.3d 334, 338 (8th Cir. 2006) (where Petitioner failed to present new evidence of actual
innocence, the refusal to entertain his procedurally defaulted claims will not result in a fundamental
miscarriage of justice). Accordingly, Petitioner’s claims asserted in Grounds Four, Five, and Six
are procedurally barred from federal habeas review, and will be denied.
IV.

CONCLUSION
For all the above reasons, Petitioner is not entitled to federal habeas relief. Under 28 U.S.C.

§ 2253, an appeal may not be taken to the court of appeals from the final order in a 28 U.S.C §
2254 proceeding unless a circuit judge or district judge issues a certificate of appealability. 28

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U.S.C § 2253(c)(1)A). To grant such a certificate, the judge must find that the petitioner “has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C § 2253(c)(2); 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 issues differently, or the issues deserve
further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citation omitted). This
court finds that reasonable jurists could not differ on Petitioner’s claims, so that the Court will not
issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FINALLY ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 23rd day of September, 2019.

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