Wilson v. Wallace

Filing 25

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DENIED. [Doc 1 .]IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by Petitioner for a Certificate of Ap pealability is DENIED.IT IS FURTHER ORDERED that the Clerk of Court shall substitute Jason Lewis in the place of Ian Wallace as the Respondent in this action, pursuant to Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts.. Signed by Magistrate Judge Nannette A. Baker on 05/14/2019. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN PAUL WILSON,
Petitioner,
v.
JASON LEWIS 1,
Respondent.

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Case No. 4:16-CV-1086 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Kevin Wilson’s (“Wilson”) Petition for Writ
of Habeas Corpus. [Doc. 1.] Respondent filed a response to the Petition for Writ of Habeas
Corpus. [Doc.13.] The parties have consented to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 8.] For the reasons set forth below,
Wilson’s Petition for Writ of Habeas Corpus will be denied.
I.

Background
On February 12, 2012, a jury found Wilson guilty of five counts of first-degree statutory

sodomy and five counts of first-degree child molestation, while acquitting Wilson on ten counts
of statutory rape. (Resp’t Ex. E at 95-114.) The trial court sentenced Wilson to concurrent
sentences of life imprisonment for each count of statutory sodomy and 15 years imprisonment for
each count of child molestation. (Resp’t Ex. E at 123-136.)
The following evidence, in light most favorable to the verdict, was presented at trial:

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During the pendency of the Petition, a different person began serving as warden at the Southeastern Correctional
Center where Petitioner is incarcerated. Pursuant to Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Respondent is the state officer who has custody. Therefore, the Clerk of Court is
ordered to add Jason Lewis, the current warden, as the Respondent and remove Ian Wallace’s name.

Wilson married H.D. 2’s mother, Linda, and moved into Linda’s house when H.D. was
approximately seven years old. For the first few years of the marriage, Wilson and H.D. got along
well. Within two years, Wilson and H.D. began fighting often and H.D. grew to hate Wilson.
Sometime after H.D. turned 13, Wilson initiated sexual contact with H.D. These incidents
happened twice a week for almost a year. One day, when H.D. was almost 14 years old, she told
Wilson that what he was doing was wrong and the incidents stopped. H.D. told her mother about
the abuse in 2011, when H.D. was 19 years old. Linda reported H.D.’s claims to the police, and
Wilson was subsequently arrested. After Wilson’s arrest, but before trial, he wrote letters to H.D.’s
family, expressing remorse and asking for forgiveness. One letter stated, “I know I have caused a
lot of pain, hurt, anger, hate, confusion, mistrust, and sorrow for every one of you.” (Resp’t Ex. P
at 384 3).
At trial, Wilson testified in his own defense, denying any sexual contact with H.D. (Resp’t
Ex. P at 515-17). Wilson also claimed that his apology letters were for the anger shown to H.D.
and her family while living with them. (Resp’t Ex. P at 519-521). Wilson’s conviction was
affirmed on direct appeal. (Resp’t Ex. C). He later filed a pro se motion for post-conviction relief
which was overruled by the motion court and affirmed by the Missouri Court of Appeals. (Resp’t
Ex. H).
II.

Standard of Review
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in

violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ,
a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91

2

Because the records and transcripts include the names of minors at the time of the events at issue, the Court will
refer to the Victim as H.D. E.D. Mo. L.R. 2.17(2).
3
The page number references in the exhibits are the page numbers for the federal court entry at the top of the pages,
not the original page numbers from the state court file.

2

(2011). “In general, if a convicted state criminal defendant can show a federal habeas court that
his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of
habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 569 U.S.
413, 421 (2013). The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254
(AEDPA) applies to all petitions for habeas relief filed by state prisoners after this statute’s
effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting
habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding whether a claim
that was adjudicated on the merits in state court proceedings “(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 determination of a factual issue made by a state court is
presumed to be correct unless the petitioner successfully rebuts the presumption of correctness by
clear and convincing evidence. 28 US.C. § 2254(e)(1).
For purposes of § 2254(d)(1), the phrase “clearly established Federal law” “refers to the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). “In other words, ‘clearly
established federal law’ under § 2254(d)(1) is the governing legal principle or principles set forth
by the Supreme Court at the time the state court renders its decision.” Id. at 71-72. To obtain
habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he
thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris, 459 F.3d 849,
853 (8th Cir. 2006).

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A state court’s decision is “contrary to” clearly established Supreme Court precedent “if
the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme Court]
cases’ or ‘confronts a set of facts that are materially indistinguishable from a decision of [the]
Court and nevertheless arrives at a result different from [the] precedent.’” Penry v. Johnson, 532
U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
A state court decision is an unreasonable application of clearly established Supreme Court
precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case. Id. (citing Williams, 529 U.S. at 407-08). “[A] federal habeas
court making the ‘unreasonable application’ inquiry should ask whether the state court’s
application of clearly established federal law was objectively unreasonable.” Id. at 793 (citing
Williams, 529 U.S. at 409). “A state court decision involves ‘an unreasonable determination of
the facts in light of the evidence presented in the state court proceedings,’ 28 U.S.C. § 2254(d)(2),
only if it is shown that the state court’s presumptively correct factual findings do not enjoy support
in the record.” Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute
error is inconsistent with the presumption that state courts know and follow the law.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002). AEDPA’s highly deferential standard demands that state court
decisions be given the benefit of the doubt. Id
III.

Discussion
Wilson presents five claims for review. First, Wilson asserts that the trial court erred in

allowing the State to re-open its case after the defense had rested its case. Second, Wilson contends
that the trial court erred in overruling his motion to suppress his confession to the police. Next,
Wilson asserts that his trial and appellate counsel were ineffective for failing to object to the verdict

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directors. Finally, Wilson asserts that post-conviction counsel was ineffective for “not doing
everything the Petitioner asked.”
A.

Double Jeopardy Claim

In his first claim, Wilson asserts that the trial court erred in allowing the State to re-open
its case at the conclusion of the trial. Wilson contends that the trial court made a finding that the
State had rested without presenting sufficient evidence on Counts 17 through 20 and that that ruling
operated as an acquittal of those four counts. Allowing the State to present additional evidence,
Wilson asserts, violates his right to be free from double jeopardy.
At the end of the prosecution’s case, Wilson’s counsel made a motion for judgment of
acquittal at the close of the state’s evidence. (Resp’t Ex. P at 460.) The Court overruled the
motion. (Resp’t Ex. P at 461-62.) After the defense rested its case, the trial court stated the
following:
I’ve talked to the attorneys informally about this. After the
State’s motion – I mean, the defendant’s motion for judgment
of acquittal at the end of the State’s case, which I denied, I
was thinking that’s somewhat interlocutory. We should do it
at the close of all the evidence, too.
I was thinking more about it. I looked back in my notes, and
I didn’t find any indication of touching of the breasts, which
is the charge for the child, five child molestation counts,
except for the first one where the first time they had
intercourse. The victim [H.D.] testified that the defendant put
his hands under her brassiere and then specifically said
touched her breasts.
So, I asked the court reporter to, during our last break, to look
through her notes, and using keywords that she has on her
computer, she wasn’t able to find any other indication that
[H.D.] ever said that the defendant touched her breasts,
specifically during all the contact they had.
So at this point, based on that evidence, I would be inclined to
sustain the defendant’s motion for judgment of acquittal on
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those - - on four of those five counts. That’s my thinking at
this time.
(Resp’t Ex. P at 551-52.) The State then moved to recall H.D. and re-open the case to address the
issue of whether H.D. was touched on her breast multiple times. (Resp’t Ex. P at 552.) Defense
counsel objected that reopening the case was improper and a violation of Wilson’s constitutional
rights to a fair trial and effective assistance of counsel. (Resp’t Ex. P at 552-53.) The trial judge
then stated:
In allowing the State or any party to re-open, I think the
fundamental purpose of these trials is to get to the truth of the
matter. So, I would, in weighing this, I think that the truth is
the most important matter in determining whether to reopen
so that the jury has all the evidence, unless there is some
fundamental procedural violation. And although there is
somewhat of a violation in that the State closed its case, if you
want to call it a violation, that’s a rule. I just don’t see that it’s
fundamental to the point that it would outweigh the truthseeking ability of the Court in the whole procedure. So, I
know this is over the defendant’s objection. I’ll allow the
State to recall [H.D.] for just that one purpose.
(Resp’t Ex. P at 554-55.) After further argument, the court allowed the State to re-call H.D. to the
stand. H.D. returned to the stand and testified that Wilson touched her breasts with his hands over
a hundred times, “every time.” (Resp’t Ex. P at 561.)
The Missouri Court of Appeals found that the trial court’s language regarding its
“inclination” to grant Wilson’s motion for judgment of acquittal, followed by the permission to reopen the case, was not a final judgment of acquittal. (Resp’t Ex. C at 5-6.) The court of appeals
noted that Wilson was not surprised by the evidence, he had an adequate opportunity to meet the
evidence, and the order of proof would not prejudice him. (Resp’t Ex. C at 6.)
In federal habeas proceedings, the standard of review for evidentiary rulings is narrow
because “[i]n the habeas context, rules of evidence and trial procedure are usually matters of state

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law.” Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006). State court evidentiary decisions
are only reviewable if the asserted error infringed a specific constitutional protection or was “of
such magnitude as to fatally infect the trial and deprive the defendant of due process.” Parker v.
Bowersox, 94 F.3d 458, 460 (8th Cir. 1996), cert. denied, 520 U.S. 1171 (1997). “To meet this
burden, a habeas petitioner must show that absent the alleged impropriety the verdict probably
would have been different.” Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007).
The Double Jeopardy Clause of the Fifth Amendment provides, in relevant part “. . . nor
shall any person be subject for the same offence to be twice put in jeopardy of life or limb; … .”
U.S. CONST. amend. V. The “Double Jeopardy Clause bars retrial following a court-decreed
acquittal, even if the acquittal is based upon an egregiously erroneous foundation.” Evans v.
Michigan, 568 U.S. 313, 318 (2013). An acquittal encompasses any ruling that the prosecution’s
proof is insufficient to establish criminal liability. Evans, 568 U.S. at 318. “A mistaken acquittal
is an acquittal nonetheless, [therefore] a verdict of acquittal … could not be reviewed on error
otherwise, without putting a [defendant] twice in jeopardy, and thereby violating the Constitution.”
Id. “Thus, an ‘acquittal’ includes ‘a ruling by the court that the evidence is insufficient to convict,’
a ‘factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal
culpability,’ and any other ‘rulin[g] which relate[s] to the ultimate question of innocence.’” Id.
For example, the Eighth Circuit found that jeopardy attached when a district court judge stated
unequivocally, “Motion for judgment of acquittal as a matter of law on [count] 5 is granted,
exception saved.” United States v. Thompson, 690 F.3d 977, 996 (8th Cir. 2012). In Thompson,
the Eighth Circuit noted that the district court judge did not indicate any availability of
reconsideration. Id.

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In this case, the trial court judge did not make a ruling on Wilson’s motion, but rather stated
he was inclined grant it. The inclination to grant a motion and granting the motion are not the
same. The trial court judge’s statement does not suffice as a judgment of acquittal. Immediately
after stating his inclination to grant the motion for acquittal, the parties made argument regarding
whether the prosecution could reopen the case. Based on the state trial court judge’s statements
and the surrounding circumstances, this Court finds that the state court’s consideration of this issue
was not unreasonable. Therefore, the Court will deny relief on this claim.
B.

Admission of Statements to Police

Next, Wilson asserts the trial court erred in admitting into evidence his statements to the
police at trial. Wilson contends this ruling violates his right to due process, his privilege against
self-incrimination and right to counsel because he requested an attorney, an attorney appeared on
his behalf, and he was denied access to the attorney. Wilson further asserts he did not knowingly,
voluntarily, or intelligently waive his right to speak with his attorney before questioning.
After the allegations were made by H.D., Wilson was placed under arrest by two officers
from the Maplewood Police Department, Detectives Kerry Daniels and Edward Fite. (Resp’t Ex.
P at 9, 501.) As Wilson was being placed in the patrol car, he called out to his mother, “Mom,
they’re arresting me, but they won’t tell me what for. Call Jack Warner.” (Resp’t Ex. P at 47.)
The police then drove Wilson to the Maplewood Police Department and the officers immediately
placed him in an interview room. (Resp’t Ex. P at 9, 14, 21-22, 432.) The interview was recorded
on a DVD. (Resp’t Ex. P at 11, 432.) Detective Fite read Wilson his Miranda rights and presented
Wilson with a Miranda form. (Resp’t Ex. P at 10, 23.) Wilson did not sign the form, but Wilson
verbally acknowledged that officers had read him his rights and he understood them. (Resp’t Ex.
P at 10-11, 23.) The officers then began questioning Wilson. At one point during questioning,

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Wilson asked Detective Fite if he thought he needed an attorney. (Resp’t Ex. P at 11.) Detective
Fite responded to Wilson stating that it was [Wilson’s] choice if he wanted to contact one. (Resp’t
Ex. P at 11). Detective Daniels testified that they did not use any threats or promises, and that
Wilson coherently answered the questions. (Resp’t Ex. P at 11-13.) At no point during his
interaction with the officers did Wilson ask for the interview to stop. (Resp’t Ex. P at 12.)
After Wilson left with the officers, Wilson’s mother contacted Wilson’s brother, who then
contacted John “Jack” Warner, an attorney. (Resp’t Ex. P at 34, 47.) After receiving the call from
Wilson’s brother, Warner drove to the Maplewood police station. (Resp’t Ex. P at 35.) Upon
Warner’s arrival, he notified the receptionist that he was an attorney and was there to see Wilson.
(Resp’t Ex. P at 36-37.) Warner was told Wilson had just arrived and was being processed. (Resp’t
Ex. P at 36.) For the next three-and-a-half hours, Warner asked every 45 minutes to speak with
Wilson. (Resp’t Ex. P at 38.) He again was told Wilson was still being processed. (Resp’t Ex. P
at 38, 40.) After the interrogation had concluded, Warner met with Wilson. (Resp’t Ex. P at 38.)
During the interrogation, officers became aware of Warner’s presence towards the “very end” of
the interview. (Resp’t Ex. P at 29-30.) Wilson had made incriminating statements during the
interview. (Resp’t Ex. P at 32-33, 515-16.) Wilson filed a motion to suppress those statements,
which was denied.
The privilege against self-incrimination clause of the Fifth Amendment provides that no
person “shall be compelled in any criminal case to be a witness against himself ….” U.S. Const.
amend. V. The Fifth Amendment’s exception from compulsory self-incrimination is protected by
the Fourteenth Amendment against abridgment by the states. Malloy v. Hogan, 378 U.S. 1, 6
(1964).

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In Miranda v. Arizona, the Court provided “concrete constitutional guidelines” for law
enforcement agencies and courts that the admissibility in evidence of statements given during a
custodial interrogation was dependent upon whether the police provided the suspect with the
following four warnings: (1) right to remain silent; (2) anything suspect says can be used against
him in a court of law; (3) right to have an attorney present; and (4) if the suspect cannot afford an
attorney, one will be appointed for him prior to questioning. Dickerson v. United States, 530 U.S.
428, 435 (2000) (citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)). “Confessions remain a
proper element in law enforcement. Any statement given freely and voluntarily without any
compelling influences, is of course, admissible in evidence.” Illinois v. Perkins, 496 U.S. 292,
297 (1990).
The prosecution cannot use statements “whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384
U.S. at 444. “If the individual states that he wants an attorney, the interrogation must cease until
an attorney is present.” Id. at 474. The defendant’s request to have an attorney present must be
clear and unambiguous so that “a reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459 (1994).
“Miranda warnings are required for official interrogations only where a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way.” Leviston v. Black,
843 F.2d 302, 304 (8th Cir. 1988). “Interrogation refers not only to express questioning but also
to any words or actions on the part of the police that the police should know are reasonably likely
to elicit an incriminating response from the suspect.” Holman v. Kemna, 212 F.3d 413, 418 (8th
Cir. 2000). The issue before this court is whether the Missouri state court was “unreasonable in

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applying these governing legal precedents to the facts of this case.” Dormire v. Wilkerson, 249
F.3d 801, 805 (8th Cir. 2001) (citing Ramdass v. Angelone, 530 U.S. 156, 166 (2000)).
There are three instances regarding the request for counsel in this case. First, the Missouri
Court of Appeals found that Wilson’s request to his mother to “call Jack Warner” was not a clear
assertion of the right to counsel. (Resp’t Ex. C at 8). The state court’s finding that Wilson’s
directive to his mother to call Jack Warner does not constitute a request for counsel was reasonable.
The directive was not made to the police officers. Further, there is no evidence that the officers
knew Warner was an attorney or that Wilson was requesting counsel when he spoke to his mother.
Next, the Missouri Supreme Court found that the police department’s failure to notify him
that Warner was present did not make his Miranda waiver invalid. When a third party contacts an
attorney for a defendant, the police need not make such an attorney available to the defendant
without the defendant’s explicit request. Moran v. Burbine, 475 U.S. 412, 422 (1986). The
Supreme Court’s decision in Moran established a broad principle that “an attorney’s attempt to
reach a suspect is not relevant to the validity of a Miranda waiver if the suspect is unaware of the
attorney’s efforts.” Beck v. Bowersox, 362 F.3d 1095, 1100 (8th Cir. 2004). As stated in Moran:
Events occurring outside the presence of the suspect and
entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a
constitutional right. … Once it is determined that a suspect’s
decision not to rely on his rights was uncoerced, that he at all
times knew he could stand mute and request a lawyer, and that
he was aware of the State’s intention to use his statements to
secure a conviction, the analysis is complete and the waiver is
valid as a matter of law.
Moran, 475 U.S. at 422-23. Wilson verbally agreed that he was aware of and understood his
Miranda rights. Wilson knew that he had instructed his mother to call Jack Warner and he still
waived his right to have counsel present.

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Finally, Wilson’s question to Detective Fite asking whether he thought Wilson needed an
attorney was not an unequivocal request for counsel. The U.S. Supreme Court has found that a
defendant’s statement “Maybe I should talk to a lawyer” was not a request for counsel. Davis, 512
U.S. at 462. The Eighth Circuit has also held that statements similar to Wilson’s statements were
not requests for counsel that required the law enforcement officer to cease questioning. See United
States v. Mohr, 772 F.3d 1143, 1145-46 (8th Cir. 2014) (defendant’s statements of “Should I get
a lawyer at this time? … I think I should get one” and “I want my lawyer .. If you want this
recorded, I want a lawyer present” were not unambiguous requests for counsel); United States v.
Havlik, 710 F.3d 818, 820-22 (8th Cir. 2013) (defendant’s statements “I don’t have a lawyer. I
guess I need to get one, don’t I?” and “I guess you better get me a lawyer then” were not
unambiguous or unequivocal requests for counsel); Dormire, 249 F.3d at 804 (defendant’s
statement, “Could I call my lawyer?” was not a clear statement that he was requesting counsel
rather than asking whether he had the right to call one). Based on the foregoing, the Court finds
that the state court factual findings and legal application were not unreasonable under AEDPA;
therefore, relief is denied on this claim.
C.

Ineffective Assistance of Counsel

Next, Wilson asserts the state court erred in denying his post-conviction relief motion
because his trial and appellate counsel were ineffective for failing to challenge the verdict
directors. He also asserts ineffective assistance of post-conviction counsel. The state motion court
rejected Wilson’s post-conviction claims, regarding the verdict directors, holding that the “verdict
directors submitted were specific, proper, and supported by the evidence of separate and distinct
acts by movant.” (Resp’t Ex. J at 57-58.) The Missouri Court of Appeals affirmed. (Resp’t Ex.
H.)

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The Sixth Amendment guarantees that in all criminal prosecutions the accused has the right
to the assistance of counsel for his defense. U.S. Const. amend. VI. The Sixth Amendment’s right
to counsel has been interpreted to mean “that if the right to counsel guaranteed by the Constitution
is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that
judges should strive to maintain proper standards of performance by attorneys who are
representing defendants in criminal cases in their courts.” McMann v. Richardson, 397 U.S. 759,
771 (1970). “The Sixth Amendment recognizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce
just results.” Strickland v. Washington, 466 U.S. 668, 685 (1984). “An accused is entitled to be
assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that
the trial is fair.” Id. To succeed in a claim “that counsel’s assistance was so defective as to require
reversal of a conviction,” a petitioner must establish (1) that the trial counsel’s performance fell
below an objective standard of reasonableness and (2) that this deficient performance prejudiced
the Petitioner’s defense. Strickland, 466 U.S. at 687-88. Both the performance and prejudice
components of the ineffectiveness inquiry are mixed questions of law and fact. Strickland, 466
U.S. at 698.
The “performance” component of Strickland requires a showing that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688.
To satisfy this prong, a petitioner must first identify the specific acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment. Id. at 690. The court
must then examine the totality of the circumstances in order to determine whether “the identified
acts or omissions were outside the wide range of professionally competent assistance.” Strickland,
466 U.S. at 690. In making this determination, the court should recognize that trial counsel is

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“strongly presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” Id. “Miscues and omissions are inevitable in any
case and there is no such thing as a perfect trial.” Medearis v. U.S., 469 F.Supp.2d 779, 785
(D.S.D. 2006).
To satisfy the “prejudice” component of Strickland, a 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.” Strickland, 466 U.S. at 694. Such “reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In determining whether
prejudice exists, “a court hearing an ineffectiveness claim must consider the totality of the evidence
before the judge or jury.” Id. at 695. Further, the court “should presume, absent challenge to the
judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.”
Id. at 694.
“In the interests of finality and federalism, federal habeas courts are constrained by
[AEDPA] to exercise only a ‘limited and deferential review of underlying state court decisions.’”
Sera v. Norris, 400 F.3d 538, 542 (8th Cir. 2005). “Taken together, AEDPA and Strickland
establish a ‘doubly deferential standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th
Cir. 2012) (citing Cullen v. Pinholster, 563 U.S. 170) (2011)). “First, under Strickland, the state
court must make a predictive judgment about the effect of the alleged deficiencies of counsel on
the outcome of the trial, focusing on whether it is reasonably likely that the result would have been
different absent the errors.” Williams, 695 F.3d at 831 (citing Strickland, 466 U.S. at 696)). “To
satisfy Strickland, the likelihood of a different result must be substantial not just conceivable.” Id.
Second, under AEDPA, the Court must give substantial deference to the state court’s predictive
judgment. Id. Therefore, “[s]o long as the state court’s decision was not “contrary to” clearly

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established federal law, the remaining question under the “unreasonable application” clause of
§ 2254(d) is “whether the state court’s determination under the Strickland standard is
unreasonable, not merely whether it is incorrect.” Id. at 831 (citing Harrington v. Richter, 562
U.S. 86, 101 (2011)). This standard is difficult, and “even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.” Harrington, 562 U.S. at 102.
“In a criminal trial, the State must prove every element of the offense, and a jury instruction
violates due process if it fails to give effect to that requirement.” Middleton v. McNeil, 541 U.S.
433, 437 (2004).

“Even if there is some ‘ambiguity, inconsistency, or deficiency’ in the

instruction, such an error does not necessarily constitute a due process violation.” Waddington v.
Sarausad, 555 U.S. 179, 190 (2009). The petitioner “must show both that the instruction was
ambiguous and that there was a ‘reasonable likelihood’ that the jury applied the instruction in a
way that relieved the State of its burden of proving every element of the crime beyond a reasonable
doubt.” Waddington, 555 U.S. at 190-91. The jury instruction must not be judged alone, but “must
be considered in the context of the instructions as a whole and the trial record.” Id. at 191. The
pertinent question is “whether the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process.” Id. There being a “slight possibility” that the jury
misapplied the instruction is not enough. Id.
In the underlying criminal case, Wilson was charged in Counts 11-15 with five counts of
first-degree statutory sodomy. In Counts 16-20, Wilson was charged with five counts of firstdegree child molestation. Wilson’s defense at trial was that he never had any sexual contact with
H.D.
The verdict directors for Counts 11 through 14 (Instructions 17, 18, 19, and 20) charged
statutory sodomy based on H.D. touching Wilson’s penis. (Resp’t Ex. E at 82-85.) Although these

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verdict directors were similarly worded, they required the jury to find that Wilson committed an
act of statutory sodomy “separate and distinct” from the acts charged in the other four counts. For
example, the verdict director for Count 11 (Instruction 17) provided 4:
As to Count 11, if you find and believe from the
evidence beyond a reasonable doubt:
First that between September 1, 2004 and October
28, 2005, separate and distinct from counts 12-14, …the
defendant knowingly had H.D. touch the defendant’s penis
with her hand, and
Second, that such conduct constituted deviate sexual
intercourse, and
Third, that at that time H.D. was a child less than
fourteen years old, then you will find the defendant guilty
under Count 11 of statutory sodomy in the first degree.
However, unless you find and believe from the
evidence beyond a reasonable doubt each and all of these
propositions, you must find the defendant not guilty of that
offense.

(Resp’t Ex. E at 82.)
The verdict director for Count 15 (Instruction 21) charged one instance of first-degree
statutory sodomy based on Wilson placing his penis in H.D.’s mouth when she was less than 14
years old 5. (Resp’t Ex. E at 86.) The verdict directors for Counts 16 through 20 (Instructions 22,

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Verdict directors for Counts 12, 13, and 14 (Instructions 18, 19, and 20) were similarly worded except they
referred to acts “separate and distinct” from the other charged counts relating to hand-to-penis contact.
5
The verdict director for Count 15 read as follows:
As to Count 15, if you find and believe from the evidence beyond a reasonable doubt:
First that between September 1, 2004 and October 28, 2005, … the defendant knowingly
placed his penis in the mouth of H.D. and
Second, that such conduct constituted deviate sexual intercourse, and
Third, that at that time H.D. was a child less than fourteen years old, then you will find the
defendant guilty under Count 15 of statutory sodomy in the first degree.
However, unless you find and believe from the evidence beyond a reasonable doubt each and
all of these propositions, you must find the defendant not guilty of that offense.

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23, 24, 25, and 26) charged first-degree child molestation based on Wilson touching H.D.’s breasts.
(Resp’t Ex. E at 87-91.) Although these verdict directors were similarly worded, they required the
jury to find that Wilson committed an act of child molestation “separate and distinct” from the acts
charged in the other four counts. (Resp’t Ex. E at 87-91.)
Instruction 27 instructed the jury that “The defendant is charged with a separate offense in
each of the twenty counts submitted to you.” (Resp’t Ex. E at 92.) Instruction 27 further instructs,
“Each count must be considered separately. You should return a separate verdict for each count
and you can return only one verdict for each count.” (Resp’t Ex. E at 92.)

1.

Trial Counsel

Wilson contends that his trial counsel’s failure to object to the verdict directors constituted
ineffective assistance of counsel. Wilson’s habeas petition asserts that the verdict directors in
Counts 11-20 violated his right to a unanimous verdict of each count. The Missouri Court of
Appeals rejected Wilson’s claim stating, “there is nothing in the record to suggest that the jury was
confused by the instructions or had not agreed on the same act or incident constituting each
offense.” (Resp’t Ex. H at 8.) Further, the court of appeals held that the verdict directors at issue
did not create any reasonable likelihood that the jury was misled or that Wilson was convicted
with a non-unanimous jury. (Resp’t Ex. H at 8-9.) Addressing the prejudice prong of the
Strickland analysis, the court of appeals noted that while Wilson denied abusing H.D., the record
contained his videotaped confession to the police and the apologetic letters to H.D. and her family.
(Resp’t Ex. H at 8.) Considering the totality of the evidence, in the record, the court of appeals
held that Wilson was not prejudiced by trial counsel’s failure to object to the verdict directors.
(Resp’t Ex. H at 8.)

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Strategic choices of trial counsel are entitled to great deference. Strickland v. Washington,
466 U.S. at 689. In determining whether prejudice exists, “a court hearing an ineffectiveness claim
must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695.
This court finds that the state court findings of fact and application of Strickland in this case were
not unreasonable. Even if Wilson, had a plausible argument regarding the verdict directors, he
would be unable to establish prejudice, because the evidence of his guilt, including H.D.’s
testimony, his confession to the police, and his apology letters to H.D. and her family, presented
overwhelming support for the guilty verdicts. Based on the foregoing, the Court will deny relief
on this claim.
2.

Appellate Counsel

Next, Wilson asserts that appellate counsel was ineffective for failing to seek plain error
review of the trial court’s submission for the verdict directors for Counts 11 through 20.
“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.” Id. (citations omitted). “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 v.
Groose, 110 F.3d 1346, 1352 (8th Cir. 1997); 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)

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(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).
A review of Wilson’s claims indicate that he has not established ineffective assistance of
appellate counsel. As explained previously, the state court’s legal and factual findings regarding
the verdict directors were not unreasonable. Moreover, Wilson cannot establish that his claims
were meritorious issues for appeal; therefore, he was not prejudiced in appellate counsel’s failure
to request plain error review of the claims. Therefore, the Court finds that habeas relief should be
denied on this claim.
3.

Post-Conviction Counsel

Finally, Wilson asserts that his post-conviction relief counsel was ineffective for “not doing
everything Petitioner requested.” The ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings is not a ground for relief in a proceeding arising
under section 2254.” 28 U.S.C. § 2254(i). This Court—as a matter of law—cannot adjudicate this
claim. Therefore, the Court will deny relief on this claim.
IV.

Conclusion
Based on the foregoing, the Court finds that Wilson’s requests for relief pursuant to 28

U.S.C. § 2254 are denied. The Court finds all of the state court’s findings and conclusions
regarding Wilson’s claims were not contrary to, not do they involve an unreasonable application
of clearly established federal law as determined by the Supreme Court of the United States. Nor
did the state court’s findings result in a decision that was based on an unreasonable determination
in light of the evidence presented in the state court proceedings. Because Wilson has made no

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showing of a denial of a constitutional right, a certificate of appealability will not be issued in this
matter. See 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 is DENIED. [Doc 1.]
IT IS FURTHER ORDERED that, for the reasons stated herein, any motion by
Petitioner for a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Jason Lewis in the
place of Ian Wallace as the Respondent in this action, pursuant to Rule 2 of the Rules Governing
Section 2254 Cases in the United States District Courts.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of May, 2019.

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