Lotts v. Steele et al
Filing
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MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the petition of Darel Lotts for a writ of habeas corpus relief is DENIED. IT IS FURTHER ORDERED that a certificate of appealability shall not be issued. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 3/17/2020. (JMP)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAREL LOTTS,
Petitioner,
v.
TROY STEELE, et al.,
Respondents.
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Case No. 4:16-cv-01796-AGF
MEMORANDUM AND ORDER
This matter is before the Court on the pro se petition of Missouri state prisoner
Darel Lotts for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 15, 2010,
Petitioner was convicted by a jury of first-degree murder, first-degree assault, and two
counts of armed criminal action. Petitioner was sentenced to a term of life without parole
for the murder, a concurrent term of 30 years’ imprisonment for the first-degree assault,
and two concurrent terms of 20 years’ imprisonment for the armed criminal actions.
In his federal habeas petition, Petitioner asserts several claims of trial court error
and ineffective assistance of counsel. For the reasons set forth below, habeas relief will
be denied.
BACKGROUND
This case arises out of a drug deal that resulted in the shooting of Kurt Williams
and his brother, Jamar Starks. Petitioner was charged by the State of Missouri with firstdegree murder; first-degree assault; first-degree robbery; first-degree attempted robbery;
and four counts of armed criminal action. A jury trial took place from July 13–15, 2010,
and the evidence at trial showed the following, as summarized by the Missouri Court of
Appeals in Petitioner’s direct appeal:
[Petitioner] bought drugs from [Williams] on several occasions in the past.
During the evening of July 22, 2008, [Petitioner] called Williams to buy
crack cocaine from him again, but Williams was suspicious because the deal
was not conducted as it had been in the past. [Petitioner] walked to the
meeting spot, entered the car that Williams and his brother, [Starks], drove,
and asked Williams for the drugs. When Williams handed [Petitioner] the
drugs, [Petitioner] told Williams that his “brother” wanted to see the drugs
on the scale. Williams agreed. [Petitioner] handed back the drugs and left
the car to look for Alex Jordan (“Jordan”).
[Petitioner] returned to the car with Jordan, who carried a backpack.
[Petitioner] and Jordan sat in the back seat, and [Petitioner] pulled out a
revolver from Jordan’s backpack. Williams and Starks tried to flee from the
car, but [Petitioner] shot them both. Williams saw [Petitioner] and Jordan
running away, but then [Petitioner] returned and shot Starks three more
times.
At the crime scene, the police found Starks’s body and a baseball hat. A
DNA analysis of the hat determined that [Petitioner’s] DNA was present on
it. Williams was hospitalized for a month, and when he was released from
the hospital, he told the police that [Petitioner] shot him. Williams also
identified [Petitioner] and Jordan from photographic line-ups and physical
line-ups.
Resp. Ex. 5 at 6-7.
On the first day of trial, Petitioner’s counsel informed the trial court outside the
presence of the jury that counsel had just learned that morning of an alleged feud between
Petitioner’s family and Williams’s family stemming from a nearly 15-year-old homicide
in which Williams’s uncle’s girlfriend’s son was convicted of killing Petitioner’s cousin
and uncle. Resp. Ex. 1 at 211-12. Counsel indicated that he wished to cross-examine
Williams about this feud to demonstrate bias and Williams’s motive to falsely identify
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Petitioner as the perpetrator. The trial court held that cross-examination on the issue
would not be permitted because the allegation of bias was too attenuated. Id. at 212.
During the presentation of its case, the State called Williams to testify. Williams
described the shooting, identified Petitioner in the courtroom, testified that Petitioner was
the shooter, and testified that he had previously identified Petitioner as the shooter in a
police photographic lineup more than a month after the shooting. Defense counsel crossexamined Williams but did not raise the issue of his family’s alleged feud with
Petitioner’s family or other potential bias.
As part of the State’s case, a DNA analyst from the St. Louis Metropolitan Police
Department Crime Laboratory also testified that DNA recovered from a baseball hat
found on the scene of the crime contained DNA from four different individuals, two of
which were main contributors, and that one of the main contributors was Petitioner.
Petitioner testified in his own defense at trial and presented the testimony of four
of his relatives who each testified that Petitioner was at his grandmother Brenda Blount’s
apartment with other family members at or around the time of the shooting. Petitioner
also testified that the baseball hat found at the crime scene did belong to him at one point,
but that he shared the hat with multiple family members and that he had given the hat to
Jordan several weeks before the shooting.
During cross-examination, the prosecutor elicited testimony from Petitioner that
Petitioner owned and had worn the baseball hat found at the crime scene. The prosecutor
then asked Petitioner whether he was the “main contributor” of the DNA found on the
hat, and defense counsel objected that the question misstated the evidence. The trial
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court sustained the objection “as to the main contributor questions,” but the prosecutor
went on to state: “You were the main contributor. You heard that evidence.” Resp. Ex. 1
at 511. Petitioner answered: “I mean that is my hat, of course. Since it’s mine, of course,
I would be the main contributor. I mean I wore it the most.” Id. Defense counsel did not
renew his objection, and the trial court did not ask the jury to disregard this testimony.
The prosecutor further questioned Petitioner about being stopped by the police in
connection with the shooting, as follows:
[Prosecutor]: I mean you actually told the police they stopped you -- they
told you have the right to remain silent and all that kind of stuff, right?
[Petitioner]: Yes.
[Prosecutor]: And you said, “I understand my rights.”
[Petitioner]: Yes, I did.
[Prosecutor]: And you said, “I have an alibi for that night.”
[Petitioner]: And I said -- yes, sir.
[Prosecutor]: And then you said, “But I’m not going to tell you what it is.”
[Petitioner]: No, I didn’t say-[Prosecutor]: And you refused to tell the police what your alibi was, didn’t
you, Mr. Lotts?
Id. at 521-22.
At this point, Petitioner’s trial counsel objected to the prosecutor’s line of
questioning and argued that it constituted improper impeachment. Counsel then moved
for a mistrial. The prosecutor responded that Petitioner waived his Fifth Amendment
right when he told police he had an alibi because he made a statement, even if he refused
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to tell police the alibi. The trial court held: “Maybe half and one-half. I think once he
refused to tell them, he might be invoking his right again, but I think you got that much
out.” Id. at 523. The trial court then denied the motion for a mistrial, and the prosecution
moved on to a different line of questioning. Id.
During its rebuttal, the State presented the testimony of Michael Jones, who
testified that he had known Petitioner for nine years and had lived with Petitioner and
Petitioner’s family for some time. Jones testified that, in December 2008, Petitioner
confessed to Jones that Petitioner had shot two people who tried to rob him, and although
Petitioner did not name the two victims, Jones “just kn[ew]” it was Williams and Starks.
Id. at 544. The prosecutor also showed Jones a copy of a photographic line-up and asked
Jones to identify Petitioner from the photograph. On cross-examination, defense counsel
highlighted the fact that Jones did not tell police about Petitioner’s confession until Jones
had been incarcerated and wanted to exchange the information to get out of jail.
As noted above, on July 15, 2010, the jury found Petitioner guilty of murder in the
first degree, assault in the first degree, and two counts of armed criminal action. It
acquitted Petitioner of the remaining charges. The trial court sentenced Petitioner to life
without parole for the murder count, 30 years’ imprisonment for the assault count, and 20
years’ imprisonment for the armed criminal action counts, all to run concurrently. The
trial court then advised Petitioner of his rights to file a direct appeal and a motion for
post-conviction relief. The trial court also engaged Petitioner in a colloquy regarding
defense counsel’s representation, after which the court found that no probable cause
existed for ineffective assistance of counsel.
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Direct Appeal
On direct appeal, Petitioner, through appointed counsel, argued that the trial court
erred when it overruled defense counsel’s motion for mistrial after the prosecution
questioned Petitioner about his refusal to make a statement to the police because such
questioning violated Petitioner’s rights to due process and privilege against selfincrimination. Petitioner argued that the jury was tainted after hearing the improper
evidence of his post-arrest silence regarding his alibi defense and that a mistrial was
therefore the appropriate remedy.
On November 1, 2011, the Missouri Court of Appeals issued its opinion affirming
the judgment of conviction and sentence. See Resp. Ex. 5. The appellate court held that
Petitioner had not properly preserved his claim for a mistrial because he failed to raise it
in his motion for a new trial. Conducting an analysis for plain error, the appellate court
found that Petitioner’s claim failed because Petitioner’s voluntary statement to police that
he had an alibi for the night of the incident waived his right to silence as to the subject
matter of the alibi. Thus, the prosecutor’s questions about the alibi and specifically
about Petitioner’s refusal to identify the alibi at the time of the police interview was an
attempt to impeach Petitioner. The Missouri Court of Appeals found no error in the trial
court’s refusal to grant a mistrial after the prosecutor attempted to impeach Petitioner
with his own statements and his “selective silence” regarding his alibi. Id. at 11.
Petitioner did not file a motion to transfer to the Missouri Supreme Court. See
Resp. Ex. 6.
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State Post-Conviction Proceedings
Petitioner filed a pro se motion for post-conviction relief in the state court on
February 14, 2012. In his pro se motion, Petitioner raised the following claims: (1) trial
counsel was ineffective for failing to object to the prosecution showing Jones a
photograph of Petitioner; (2) trial counsel was ineffective for failing to depose Jones; (3)
the trial court erred or abused its discretion when it denied Petitioner’s claim of
ineffective assistance of counsel; (4) the prosecutor committed misconduct by asking
Petitioner whether he was the main contributor of DNA evidence found at the scene in
violation of the trial court’s ruling sustaining an objection to such questioning; (5) trial
counsel was ineffective for failing to move for a mistrial after the prosecutorial
misconduct described above; (6) trial counsel was ineffective for failing to cross-examine
Williams about his alleged bias; (7) trial counsel was ineffective for failing to present
testimony from alibi witnesses and family members Roger Sales, Cynthia Allen, Brenda
Blountt, and Taeshay Guido; and (8) trial counsel was ineffective for failing to request a
competency evaluation to determine Petitioner’s mental competence to stand trial and
assist counsel in his defense. Resp. Ex. 8 at 6-51.
In his amended motion for post-conviction relief, filed with the assistance of
counsel, Petitioner incorporated each of his pro se claims and added to those claims that:
(1) trial counsel was ineffective for failing to cross-examine Williams about his motive
and bias to falsely accuse Petitioner of the shooting because Petitioner’s father, Charles
Lotts, testified against Williams’s relative in another murder case; and (2) trial counsel
was ineffective for failing to make an offer of proof regarding this evidence.
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The motion court held an evidentiary hearing on June 26, 2014, at which
Petitioner; Petitioner’s trial counsel; Petitioner’s father, Lotts; and Petitioner’s brother,
Sales testified. On September 8, 2014, the motion court denied Petitioner’s motion for
post-conviction relief.
The motion court addressed the claims raised in Petitioner’s amended and pro se
motions. The motion court rejected Petitioner’s claim that counsel was ineffective for
failing to cross-examine Williams regarding his potential bias or to make an offer of
proof in that regard. The motion court noted that defense counsel did ask to be allowed
to cross-examine Williams as to hostility between the families and that the trial court
reasonably held that such hostility, which dated back 15 years, was too remote in time to
demonstrate bias. Further, the motion court held that Petitioner’s father’s testimony at
the evidentiary hearing failed to demonstrate animosity or bias, and thus would not have
provided a defense. The motion court also noted that, during the trial, evidence
demonstrated that Williams and Petitioner had previously worked together and “there
was no suggestion of bad blood between them other than the speculation offered by
[Petitioner].” Resp. Ex. 8 at 73. The motion court held that Petitioner failed to
demonstrate that trial counsel’s cross-examination was ineffective or that an offer of
proof would have resulted in a different outcome on appeal, so as to establish prejudice.
The motion court then addressed the claims raised in Petitioner’s pro se motion.
With respect to Petitioner’s claim that trial counsel erred when he failed to object to the
State’s lack of foundation before showing Jones a photograph of Petitioner at trial, the
motion court held that the allegation was without merit because Jones had known
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Petitioner for many years and had no issue with respect to Petitioner’s identity. It further
concluded that had trial counsel objected on this basis, there was no reasonable
probability that the result of the trial would have been different.
The motion court next rejected as without merit Petitioner’s claim based on trial
counsel’s failure to interview Jones or take his deposition. The motion court concluded
that trial counsel “vigorously cross-examined and tried to discredit Jones.” Id. at 77. The
motion court noted that trial counsel “got Jones to admit that he made the statement
regarding [Petitioner] after he was arrested and locked up in order to get out of jail.” Id.
The motion court further concluded that Petitioner failed to establish that Jones’s alleged
inconsistencies would have significantly undermined Jones’s credibility or otherwise
changed the outcome of trial, particularly in light of the other evidence against Petitioner.
Next, the motion court denied as refuted by the record Petitioner’s allegation that
the trial court erred when it determined there was no ineffective assistance of counsel.
The motion court also rejected Petitioner’s claim of prosecutorial misconduct arising
from the prosecutor disregarding the trial court’s ruling regarding the DNA “main
contributor” questions. The motion court found that it was uncontested that the hat
belonged to Petitioner, that other persons wore the hat, and that the DNA of Petitioner
and other individuals was found on the hat. Thus, the motion court held that there was no
reasonable probability that, had the prosecutor not pursued this line of questioning, the
result of the trial would have been different.
As to Petitioner’s claim that trial counsel was ineffective for failing to move for a
mistrial after alleged prosecutorial misconduct described above, the motion court held
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that there was no reasonable probability that Petitioner was deprived of the right to a fair
trial based on the prosecutor’s actions and that a mistrial would not have been granted
had it been requested. Next, the motion court held that trial counsel was not ineffective
for failing to cross-examine Williams for the reasons previously stated.
The motion court also denied as meritless Petitioner’s claim that trial counsel was
ineffective for failing to present testimony from the alibi witnesses Petitioner identified
because all but one of those witnesses failed to appear at the evidentiary hearing, and
Petitioner failed to provide evidence as to what those witnesses would have stated had
they been called to testify at trial. Further, the motion court held that Sales, who did
testify at the evidentiary hearing, admittedly “had nothing to offer regarding the night of
the murder” and could not have provided Petitioner a viable defense at trial. Id. at 85-87.
Finally, the motion court held that counsel was not ineffective for failing to request a
competency evaluation because there was no evidence that Petitioner was incompetent.
On appeal from the denial of post-conviction relief, Petitioner, through appointed
counsel, pursued only the ineffective-assistance claims relating to cross-examining
Williams regarding his bias, failing to make an offer of proof regarding the family feud,
and failing to call Sales as a witness at trial.
On December 22, 2015, the Missouri Court of Appeals affirmed the motion
court’s judgment. In affirming the denial of post-conviction relief, the appellate court
noted that the trial court had granted a motion in limine to prohibit eliciting testimony
regarding the family feud on the basis that the evidence of the alleged bias was too
attenuated; thus, “if [trial counsel] had attempted to cross-examine and impeach Williams
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on that very ground, his questions would have been inadmissible.” Resp. Ex. 13 at 9.
The appellate court found that counsel was not ineffective for failing to elicit testimony
that was inadmissible under the motion in limine. The appellate court further found that
Petitioner’s claim that trial counsel was ineffective for failing to make an offer of proof
failed because ineffective-assistance claims are limited to errors that affect a criminal
defendant’s right to a fair trial, rather than his ability to appeal a conviction, and because
there was little chance that, had counsel made an offer of proof as to the alleged family
feud, the trial court’s decision would have been reversed on appeal.
As to Petitioner’s claim regarding counsel’s failure to call Sales as a witness, the
Missouri Court of Appeals held that Petitioner failed to establish that Sales’s testimony
would have provided a viable defense or alibi, so trial counsel was not ineffective for
choosing not to call him as a witness. The Missouri Court of Appeals issued its mandate
on January 14, 2016.
Federal Habeas Petition
Petitioner filed his petition for writ of habeas corpus in this Court on November
14, 2016, by placing it in the prison mail system. ECF No. 1 at 15. Petitioner raises ten
grounds for federal habeas relief: (1) the trial court erred when it denied his request for a
mistrial; (2) trial counsel was ineffective for failing to cross-examine Williams about his
alleged bias; (3) trial counsel was ineffective for failing to call Sales as a defense witness
to testify about the baseball hat; (4) the motion court erred in denying Petitioner’s motion
for post-conviction relief based on counsel’s failure to cross-examine Williams; (5) trial
counsel was ineffective for failing to depose Jones; (6) the trial court erred and/or abused
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its discretion in rejecting Petitioner’s ineffective-assistance-of-counsel claim (7) the
prosecutor committed misconduct by continuing to question Petitioner about DNA
evidence in violation of the trial court’s evidentiary ruling; (8) trial counsel was
ineffective for failing to object to Jones’s identification of Petitioner; (9) trial counsel was
ineffective for failing to move for a mistrial after the prosecutorial misconduct described
above; and (10) trial counsel was ineffective for his failure to present testimony from
alibi witnesses Sales, Cynthia Allen, Brenda Blountt, and Taeshay Guido.
Respondent argues that the petition is untimely as it was filed beyond the one-year
statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Further, Respondent maintains
Petitioner’s claims are not cognizable in habeas corpus, are procedurally barred because
they were not raised at the state court level, or are otherwise without merit. Petitioner did
not file a reply, and the time to do so has passed.
DISCUSSION
Statute of Limitations
As an initial matter, the Court agrees that the petition is untimely. Under the AntiTerrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress established a
one-year statute of limitations period for petitioners seeking federal habeas relief from
state court judgments. Finch v. Miller, 491 F.3d 424, 426 (8th Cir. 2007). In this case,
the one-year statute of limitations began to run on the date Petitioner’s judgment became
final, meaning the date on which the time for seeking review in the Missouri Supreme
Court expired. See 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). Because Petitioner did not seek transfer to the Missouri Supreme Court, his
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limitations period began to run 15 days after the Missouri Court of Appeals affirmed his
conviction on direct appeal, or November 16, 2011. See Camacho v. Hobbs, 774 F.3d
931, 935 (8th Cir. 2015) (stating that when a petitioner foregoes state appeals, the court
must look to state-court filing deadlines to determine the expiration of the time for
seeking direct review); and Mo. S.Ct. R. 83.02 (“Application by a party for such transfer
shall be filed within fifteen days of the date on which the opinion, memorandum decision,
written order, or order of dismissal is filed.”).
Petitioner did not file a state post-conviction motion until 90 days later, on
February 14, 2012. These 90 days count against the one-year statute of limitations.
See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir. 2001); Curtiss v. Mount Pleasant
Corr. Facility, 338 F.3d 851, 853-54 (8th Cir. 2003). The statute of limitations was
thereafter tolled while Petitioner’s state post-conviction proceeding was pending, see 28
U.S.C. § 2244(d)(2), and until the Missouri Court of Appeals issued its mandate in that
proceedings on January 14, 2016, see Payne v. Kemna, 441 F.3d 570, 572 (8th Cir.
2006) (determining that petitioner’s petition, filed exactly one year after the issuance of
the mandate in his post-conviction case, was timely). Petitioner thereafter had 275 days
to file his federal habeas petitioner in order for that petition to be timely. But Petitioner
waited 305 days, until November 14, 2016, to place his petition in the prison mail system.
As such, Petitioner’s petition is untimely.
However, the statute of limitations in § 2244(d) is subject to the doctrine of
equitable tolling. See Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001). Although
Petitioner has not directly asserted that equitable tolling should apply here, he indicates in
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his petition that he never received a copy of the Missouri Court of Appeal’s decision
denying his direct appeal. See ECF No. 1 at 2. Without deciding whether equitable
tolling should apply under such circumstances, the Court will review Petitioner’s claims
on the merits, as such review is straightforward. See Stansberry v. Lombardi, No. 4:13
CV 663 CDP, 2016 WL 4089281, at *1 n.2 (E.D. Mo. Aug. 2, 2016).
Legal Standard
Federal habeas relief is available to a state prisoner “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). Where a claim has been adjudicated on the merits in state court, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that habeas
relief cannot be granted unless the state court’s adjudication:
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).
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to
show ineffective assistance of counsel, “a [petitioner] must show that counsel’s
performance was deficient,” and “that the deficient performance prejudiced [his]
defense.” Id. at 687. When “[c]onsidering an attorney’s performance, [the court] must
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indulge a strong presumption that the conduct was reasonable, and the [petitioner] must
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Paulson v. Newton Corr. Facility, 773 F.3d 901, 904
(8th Cir. 2014) (citation omitted). In other words, the petitioner must show that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” White v. Dingle, 757 F.3d 750, 752 (8th Cir. 2014)
(citation omitted). In order to show prejudice, 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.” Id. at 753 (citations omitted).
Non-Cognizable Claims (Claims 4 and 6)
Petitioner’s claims that the motion court erred in denying his motion for postconviction relief (Claim 4) and the trial court erred in rejecting his ineffective assistance
claim (Claim 6) are “attacks on proceedings collateral to detention and not on the
detention itself,” and are therefore not cognizable in this federal habeas proceeding. See
Williams v. Missouri, 640 F.2d 140, 144 (8th Cir. 1981). However, Petitioner’s
underlying ineffective assistance of counsel claims are cognizable federal habeas claims
and will be addressed below.
Procedurally Defaulted Claims (Claims 1, 5, and 7-10)
Petitioner’s Claims 1, 5, and 7 through 10 1 were procedurally defaulted in state
court. Under the doctrine of procedural default, a federal habeas court is barred from
1
Petitioner’s Claim 10 was defaulted as to all potential alibi witnesses except Sales.
Petitioner’s claim with respect to Sales is duplicative of Claim 3, which was reviewed by
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considering the merits of a claim not fairly presented to the state courts, absent a showing
by the petitioner of cause for the default and prejudice resulting therefrom, or that he is
actually innocent, such that a miscarriage of justice would result by failing to consider the
claim. E.g., Murphy v. King, 652 F.3d 845, 848-49 (8th Cir. 2011).
As to the first claim, that the trial court erred when it denied Petitioner’s request for
a mistrial after the prosecutor questioned Petitioner about his refusal to make a statement
to the police, the Missouri Court of Appeals noted that Petitioner did not preserve this claim
for direct appeal but nevertheless reviewed the claim for plain error. A “state court’s
discretionary plain-error review of [an] unpreserved claim[] cannot excuse [a habeas
petitioner’s] procedural default.” Clark v. Bertsch, 780 F.3d 873, 877 (8th Cir. 2015). 2
Petitioner raised Claims 5 (failing to depose Jones), 7 (prosecutorial misconduct),
8 (failing to object to Jones’s identification), 9 (failing to move for mistrial as a result of
prosecutorial misconduct), and 10 (failing to present testimony of alibi witnesses) in his
pro se and amended motions for post-conviction relief. However, he did not pursue the
above-noted claims on appeal from the denial of that motion. The Court’s review of
the state courts and will be addressed on the merits below.
2
Petitioner does not claim in his federal habeas petition that trial counsel was
ineffective for failing to preserve the request for a mistrial. And such a claim would have
been procedurally defaulted, not having been raised in Petitioner’s state post-conviction
proceedings. Nor would the ineffective assistance of post-conviction counsel for failing
to raise such a claim excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012),
because the claim lacked merit. See Martinez, 566 U.S. at 16. Indeed, the Missouri
Court of Appeals correctly held that the prosecutor’s attempt to impeach Petitioner with
his voluntary statements and silence as to the subject matter of those statements did not
violate Petitioner’s Fifth Amendment rights, see Anderson v. Charles, 447 U.S. 404, 408
(1980), and that a mistrial was not warranted.
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these claims is therefore barred, and ineffective assistance of postconviction appellate
counsel has not been recognized as cause to excuse such a default. See Arnold v.
Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012).
In short, Claims 1, 5, and 7 through 10 were procedurally defaulted in state court,
and Petitioner raises no cause to excuse the default. Petitioner has also failed to show that
a miscarriage of justice will result if his defaulted claims are not considered. See Abdi v.
Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (holding that a petitioner must present new
evidence that affirmatively demonstrates that he is actually innocent of the crime for which
he was convicted in order to fit within the miscarriage of justice exception).
Remaining Claims (Claims 2 and 3)
As to the claims which were not defaulted, the Court concludes that each is without
merit. When addressing claims that were addressed by state courts, “[t]aken together,
AEDPA and Strickland establish a doubly deferential standard of review.” Williams v.
Roper, 695 F.3d 825, 831 (8th Cir. 2012) (citation omitted). 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.
With respect to Claim 2, the state court reasonably found that trial counsel was not
ineffective for failing to cross-examine Williams about his alleged bias, in light of the
trial court’s ruling on the motion in limine, as well as the attenuated nature of the bias
theory. Regarding Claim 3, the state court reasonably held that trial counsel was not
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ineffective for failing to call Sales as a witness because Sales’s testimony was
inconsequential. Sales’s anticipated testimony that Petitioner gave the baseball hat to
Jordan was consistent with the State’s theory of the case that Jordan was also present at
the shooting. It would not have exonerated Petitioner, particularly in light of the other
evidence against him.
CONCLUSION
The Court concludes that Petitioner is not entitled to federal habeas relief. The
Court does not believe that reasonable jurists might find the Court’s assessment of the
procedural or 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)
(citing Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)).
Accordingly,
IT IS HEREBY ORDERED that the petition of Darel Lotts for a writ of habeas
corpus relief is DENIED.
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 17th day of March, 2020.
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