Hall v. State of Missouri

Filing 55

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the petition of Arizona Hall for a writ of habeas corpus relief under 28 U.S.C. § 2254 is DENIED. IT IS FURTHER ORDERED that a certificate of appealability shall not be issued. Signed by District Judge Audrey G. Fleissig on 04/11/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ARIZONA HALL,
Petitioner,
v.
CHRIS KOSTER,
Respondent.

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Case No. 4:16CV01528 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition, as supplemented, of
Missouri state prisoner Arizona Hall for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. On June 27, 2013, a jury convicted Petitioner of domestic assault in the second
degree for a crime committed on September 11, 2008. On October 3, 2013, the trial court
entered judgment against Petitioner for domestic assault in the second degree, and
sentenced him as a prior and persistent offender to ten years’ imprisonment.
The Court interprets Petitioner’s various pleadings in this action (ECF Nos. 4, 6, 7,
29, 33, 45, 46, and 48) as raising the following overlapping grounds for habeas relief: (1)
the indictment was legally insufficient in that it charged “recklessly” causing serious
physically injury, and not “knowingly” doing so as Petitioner contends is required by
Missouri law for a conviction of second-degree domestic assault; (2) the jury convicted
Petitioner of third-degree domestic assault, but he was sentenced for second-degree
domestic assault; (3) in obtaining the indictment and conviction, defense counsel
conspired with the prosecutor to use the victim’s perjured testimony that Petitioner

threatened to kill her, and this conspiracy was due to Petitioner’s race (African American)
and in retaliation for an incident involving Petitioner’s sons and nephew that caused the
death of a Caucasian woman “who had ties with state officials”; (4) and the prosecutor
conspired with the trial judge to convict Petitioner and sentence him as a persistent
offender due to Petitioner’s race and in retaliation for the incident involving Petitioner’s
sons and nephew; (5) the prosecutor and court enhanced Petitioner’s sentence by relying
on a substitute information that charged Petitioner with being a persistent offender but
that was never recorded on the court’s docket sheet, thereby depriving the trial court of
jurisdiction and Petitioner of his due process right to be notified of the charges against
him; and his own defense counsel lied to the trial court when he said he showed
Petitioner the substitute information before trial. Petitioner also contends that failure to
vacate his conviction in light of other cases where convictions were vacated based on
insufficient charging documents constitutes a violation of equal protection.
Respondent argues that Petitioner’s claims were all procedurally defaulted because
he did not raise them on direct appeal, and alternatively, that the claims are without merit.
For the reasons set forth below, habeas relief will be denied.
BACKGROUND
Count IV of the original five-count indictment filed on May 6, 2009, charged
Petitioner with domestic assault in the second degree, in that on September 11, 2008, he
“recklessly caused serious physical injury to T.N. by striking her,” in violation of Mo.
Rev. Stat. § 565.073. ECF No. 44-2 at 29-31. The other four counts, on which Petitioner
was acquitted, charged kidnapping (Count I) and domestic assault first degree (Count II)
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on April 26, 2008; and armed criminal action (Count III), and domestic assault third
degree (Count V) on September 11, 2008. The indictment also charged Petitioner with
being a prior offender in that he pleaded guilty in September 1981 to the felony of
trespass first degree. Id. As he was charged in the indictment, Petitioner was subject to a
sentence of seven years’ imprisonment if convicted on Count IV.
A substitute information filed-stamped June 4, 2013, charged Petitioner as a prior
and persistent offender, with the language of Count IV remaining the same. Id. at 53-55.
Id. The substitute information listed three prior felony convictions in support of
Petitioner’s status as a prior and persistent offender: a 1972 guilty plea to stealing a
motor vehicle; a 1973 guilty plea to stealing a motor vehicle; and a 1987 guilty plea to
first-degree assault and armed criminal action. As a prior and persistent offender,
Petitioner was subject to a term of imprisonment of 15 years on Count IV, under Mo.
Rev. Stat. § 558.016. Although the substitute information is stamped as “Filed,” it does
not appear on the copy of the state court docket sheet provided by Respondent. ECF No.
44-2 at 4-21.
Petitioner’s four-day jury trial commenced on June 24, 2013. At the close of the
evidence, before closing argument, the parties stipulated that Petitioner had three prior
convictions (two for stealing a motor vehicle and one for first-degree assault and armed
criminal action). ECF No. 44-1 at 616. The court read the convictions into the record
and stated on the record that it found Petitioner to be a prior and persistent offender; there
was no objection. Id.
The verdict director on Count IV, Instruction No. 10, told the jury that to convict
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Petitioner of domestic assault in the second degree, the jury had to find that on September
11, 2008, Petitioner “recklessly caused serious physical injury” to T.N. ECF No. 44-2 at
91. Instruction No. 11 told the jury that if the jury did not find Petitioner guilty of
domestic assault in the second degree as submitted in Instruction No. 10, but believed
that on September 11, 2008, he “recklessly caused physical injury” to T.N., the jury
should find Petitioner guilty “under Count IV of domestic assault in the third degree.” Id.
at 92. The jury found Petitioner guilty as to Count IV of domestic assault in the second
degree as submitted in Instruction No. 10. Id. at 106.
The State’s sentencing memorandum represented that Petitioner had been found
guilty of domestic assault in the second degree, and was a prior and persistent offender,
and recommended a sentence of 15 years’ imprisonment. ECF No. 44-3 at 73-74. On
October 3, 2013, the trial court entered judgment against Petitioner for domestic assault
in the second degree, and sentenced him as a prior and persistent offender to ten years’
imprisonment. Id. at 76-79; ECF No. 44-1 at 663. After informing Petitioner of his right
to appeal and to seek post-conviction relief, Petitioner addressed the court and questioned
the sentencing enhancement based on the finding that he was a persistent offender,
whereas the indictment he saw only charged him with being a prior offender. Defense
counsel confirmed that he had received the substitute information and had reviewed it
with Petitioner prior to trial, but counsel stated that he might not have given Petitioner a
copy of it. Petitioner indicated that what he “received” was the indictment, and the court
stated that what mattered was what was in the court file and what his lawyer received.
ECF No. 44-1 at 666-67.
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On July 22, 2013, prior to his sentencing and before any direct appeal, Petitioner
filed a state petition for habeas relief raising some of the claims he now presents in his
federal habeas action. ECF No. 45 at 37-41. The record does not include an order from
the state courts ruling on this petition and in his amended petition, Petitioner represents
that the state habeas petition was never ruled on. ECF No. 9 at 4. Petitioner references
numerous other filings he made in state court, including at least one other state habeas
petition, but they have not been made a part of the record before the Court (nor do such
filings appear on www.courts.mo.gov/casenet/).
In his direct appeal, filed on June 13, 2014, Petitioner argued that the trial court
erred in allowing the prosecutor to make two improper comments during closing
argument, and in permitting a police officer to testify about the phenomenon known as a
cycle of violence. On October 14, 2014, the Missouri Court of Appeals rejected all
claims and affirmed the judgment and sentence. In its opinion, the appellate court
erroneously stated that Petitioner was appealing following a jury verdict finding him
guilty of domestic assault in the third degree, in violation of Mo. Rev. Stat. § 565.074.
ECF No. 41-3 at 2. The state appellate court’s mandate issued on April 1, 2015.
Respondent argues that all of Petitioner’s federal habeas claims are procedurally
defaulted because they could have been but were not raised on direct appeal; and
Petitioner’s filing of the state petition for habeas corpus did not excuse this procedural
default. Respondent argues alternatively that all of Petitioner’s claims are without merit.
Respondent argues that the erroneous statement of the Missouri Court of Appeals that
Petitioner’s conviction was for third-degree domestic assault does not change the facts
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that Petitioner was properly charged with second-degree domestic assault, the jury was
correctly instructed on second-degree assault and found him guilty of that crime, the trial
court sentenced him for second-degree domestic assault, and the Missouri Court of
Appeals affirmed the trial court’s judgment and sentence.
Respondent argues that Petitioner’s claim that defense counsel conspired with the
prosecutor to convict Petitioner based on perjured testimony fails because Petitioner did
not allege what testimony he believes to be perjured, or point to any evidence that would
suggest such a conspiracy; and that this claim is “implausible, frivolous, and unsupported
by the record.” ECF No. 41 at 6-7. Respondent argues that similarly, Petitioner alleges
no facts to suggest a conspiracy involving state officials or the trial judge, or racial bias in
the prosecution of the case against Petitioner. Lastly, Respondent argues that Petitioner
had notice that he was being charged with being a persistent offender, by means of the
substitute information that was received and marked filed prior to trial, and that it is of no
import that this document does not appear on the state court’s docket sheet. 1

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The Court notes that this Court initially dismissed Petitioner’s habeas case as
untimely. By opinion dated June 19, 2017, the Eighth Circuit Court of Appeals reversed
and remanded the case, noting that if Petitioner’s claims related back to a case he had
filed on March 2, 2016, Hall v. State, No. 4:16-cv-00291-CDP (E.D. Mo.), the present
case appeared to have been filed within the limitations period. Hall v. Hawley, No. 171090 (8th Cir. June 19, 2017) (ECF No. 5). On remand, Respondent has not raised a
statute of limitations defense and the Court believes that judicial economy would best be
served by assuming that Petitioner’s claims relate back to his earlier filing, and
addressing the substantive and other procedural issues in the case. See Trussell v.
Bowersox, 447 F.3d 588, 590 (8th Cir. 2006) (holding that a federal habeas court may
disregard the statute of limitations for a § 2254 petition in the interest of judicial
economy because the limitations period is not a jurisdictional bar to court review).
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DISCUSSION
Standard for Federal Habeas Relief and Procedural Default
Pursuant to 28 U.S.C. § 2254, a district court “shall entertain an application for a
writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). To preserve a claim for federal
habeas review, “a state habeas petitioner must present that claim to the state court and
allow that court an opportunity to address his 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. (citation omitted).
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.” Murray v. Carrier, 477 U.S. 478, 488 (1986). 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.” Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). 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.”
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Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (citation omitted).
Here, the Court agrees with Respondent that Petitioner’s claims about the
sufficiency of the substitute information were defaulted due to his failure to raise them on
direct appeal. See, e.g., Schwarzman v. Gray, No. 17-3859, 2018 WL 994352, at *2 (6th
Cir. Jan. 30, 2018) (holding that a habeas petitioner procedurally defaulted his claim that
the indictment was insufficient by failing to raise the claim on direct appeal). Petitioner’s
state habeas petition referenced above did not excuse him from raising these claims on
direct appeal. See Roberson v. Villmer, No. 4:14-CV-45 (CEJ), 2017 WL 1177908, at *4
(E.D. Mo. Mar. 30, 2017) (citing cases). Nor has Petitioner shown cause or prejudice to
excuse the procedural default, or that he is innocent of the second-degree domestic
assault, or of being a persistent offender under Missouri law.
Although Petitioner does not frame any of his claims as claims of ineffective
assistance of defense counsel, if indeed defense counsel lied to the trial court about
reviewing the substitute information with Petitioner before trial, and Petitioner can
establish that he is fact was unaware before trial that that he had been charged with being
a persistent offender, Petitioner’s constitutional right to the effective assistance of counsel
would be implicated because a criminal defendant has a due process right to fair notice of
the charges against him to permit adequate preparation of his defense. But such a claim
was also procedurally defaulted by Petitioner’s failure to present it to the state courts in a
postconviction motion. See, e.g., McLaughlin v. Steele, 173 F. Supp. 3d 855, 869 (E.D.
Mo. 2016). Here too, Petitioner has failed to assert or establish either cause and prejudice
or a miscarriage of justice to avoid the procedural default of this claim.
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Consideration of the Merits of Petitioner’s Claims
As an alternative basis for the denial of federal habeas relief, the Court concludes
that other than the claim that defense counsel lied about reviewing with Petitioner the
substitute information before trial, Petitioner’s claims fail on the merits.
Constitutional Sufficiency of the Charging Document
Petitioner is incorrect that under Missouri law, second-degree domestic assault
requires that the perpetrator acted “knowingly” when serious physical injury, as opposed
to general physical injury, is involved. To the contrary, Mo. Rev. Stat. § 565.073
provides that a person who “recklessly causes serious physical injury” commits the crime
of domestic assault in the second degree. Both the indictment and substitute information
properly charged this crime, and the jury was correctly instructed on it. The Court agrees
with Respondent that the fact that the Missouri Court of Appeals erroneously stated that
Petitioner was convicted of third-degree domestic assault does not change these essential
facts, and does not lead to the conclusion that Petitioner’s constitutional rights were
violated. And inasmuch as the indictment does properly charge the offense of conviction,
Petitioner’s claim that he has been denied Equal Protection in light of other cases where
convictions were voided for insufficient charging documents also fails.
The fact that the substitute information does not appear on the state court docket
sheet does not constitute a violation of Petitioner’s federal constitutional rights. It is
undisputed that the substitute information was filed and provided to defense counsel
before trial, and that the substitute information adequately charged that Petitioner was a
persistent offender under Missouri law. The trial court also read Petitioner’s prior
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convictions into the record and stated its finding that Petitioner was a prior and persistent
offender at the close of the evidence, and Petitioner raised no objection.
Claims of Conspiracy and Racial Bias
As Respondent argues, Petitioner has not alleged any facts that suggest a
conspiracy to charge and convict him, or that he was charged and convicted as the result
of racial bias. Petitioner’s remaining claims, therefore, fail. See, e.g., Hoisington v.
Ryan, No. CV1402568TUCJASBGM, 2017 WL 7798102, at *18 (D. Ariz. Nov. 22,
2017) (“Neither has Petitioner presented any evidence, beyond his bare assertion, that the
trial court, prosecutor, and defense counsel engaged in a conspiracy against him or
otherwise acted to deprive him of due process.”), R & R adopted, No.
CV142568TUCJASBGM, 2018 WL 1071189 (D. Ariz. Feb. 27, 2018); Hence v. Smith,
37 F. Supp. 2d 970, 979 (E.D. Mich. 1999).
CONCLUSION
For the reasons stated above, the Court does not believe that Petitioner is entitled
to federal habeas relief. The Court also does not believe that reasonable jurists might find
the Court’s assessment of the procedural and substantive issues presented in this case
debatable or wrong, for purposes of issuing a Certificate of Appealability under 28
U.S.C. § 2254(d)(2). See Buck v. Davis, 137 S. Ct. 759, 773 (2017) (standard for issuing
a Certificate of Appealability).
Accordingly,
IT IS HEREBY ORDERED that the petition of Arizona Hall for a writ of habeas
corpus relief under 28 U.S.C. § 2254 is DENIED.
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IT IS FURTHER ORDERED that a certificate of appealability shall not be
issued.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 11th day of April, 2018.

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