Robinson v. Lewis

Filing 65

OPINION, MEMORANDUM AND ORDER (See Full Order). IT IS HEREBY ORDERED that the First Amended Petition for Writ of Habeas Corpus [Doc. No. 13 ] is DENIED. IT IS FURTHER ORDERED that no certificate of appealability shall issue. A separate judgment in accordance with this Opinion, Memorandum and Order is entered this same date. Signed by District Judge Henry Edward Autrey on 9/18/23. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AARON ROBINSON,
Petitioner,
v.
JASON LEWIS,
Respondent.

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Case No. 4:17CV4 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Aaron Robinson’s First
Amended Petition for Writ of Habeas Corpus, [Doc. No. 13], Petitioner’s Motion
for Judgment on the Pleadings, [Doc. No. 62], and Respondent’s Response to the
Court’s Show Cause Order, [Doc. No. 64]. For the reasons set forth below,
Petitioner’s Petition and motion will be denied.
Facts and Background
On January 3, 2017, Petitioner, proceeding pro se, filed his Petition for Writ
of Habeas Corpus. Petitioner raises three claims for relief in his First Amended
Petition: 1) his sentence remains unconstitutional under Miller v. Alabama, 567
U.S. 460 (2012), in spite of the enactment of Mo. Rev. Stat. § 558.047 and
Missouri Supreme Court’s July 19, 2016 decision; 2) a Batson claim involving the
strike of an African-American juror; and 3) trial counsel was ineffective for failing

to offer a modified self-defense jury instruction hypothesizing “multiple
assailants.”
The Court’s March 26, 2020 Order
On March 26, 2020, Petitioner’s First Amended Petition for Writ of Habeas
Corpus was ordered stayed by this Court because Petitioner’s petition involves
both exhausted and unexhausted claims. Petitioner’s Batson and ineffective
assistance of counsel claims were properly exhausted in state courts on direct
appeal and post-conviction relief proceedings, respectively. However, the Court
found Petitioner’s arguments in support of his first claim for relief each arise from
the alleged failure of § 558.047 to bring Petitioner’s sentence into conformity with
Miller and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) were unexhausted
claims. Petitioner’s last pleading filed before the Missouri Supreme Court, his
motion for reconsideration, was filed on March 25, 2016, months before § 558.047
became law. Because Petitioner had not presented the issues regarding deficiencies
of § 558.047 before Missouri state courts, the Court found it could not rule on
Petitioner’s unexhausted claims and ordered the stay until Petitioner exhausted his
state court remedies. Petitioner was ordered to pursue state court remedies within
thirty days and return to this Court within thirty days after his state court
exhaustion was completed.

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May 4, 2022 Status Report Order
On May 4, 2022, the Court ordered a status report to be filed by the parties
regarding the status of Petitioner’s claims in state court. On June 2, 2022,
Respondent filed a status report indicating he has not received any state court
notice being filed by, or on behalf of, Petitioner. Respondent also conducted a
search of Case.net, Missouri’s centralized electronic court case management and
filing system, and was unable to locate any case filed by Petitioner relating to his
convictions and sentences since the Court’s March 26, 2020 Order. Respondent
argues the stay should be lifted and Petitioner’s case dismissed, as Petitioner failed
to comply with the Court’s Order and has not made any effort to exhaust his claims
to state court.
Motion to Remand Motions
In lieu of a status report, Petitioner filed a Motion to Remand, requesting
more time to wait for the state court to resolve an “unexhausted issue” about taking
a “Mental Competency test prior to trial.” The unexhausted claims in this case are
relevant to those arguments in support of his first claim for relief each arise from
the alleged failure of § 558.047 to bring Petitioner’s sentence into conformity with
Miller and Montgomery, not a mental competency test. Petitioner also filed a
Motion to Compel the Court to Respond to his remand motion.

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On February 3, 2023 the Court denied Petitioner’s Motion to Remand and
granted Petitioner 30 days to amend his petition to delete the unexhausted claims.
On February 24, 2023, Petitioner filed a letter to the Court asserting that he had
exhausted his Miller v. Alabama claim and had Petitioned for Rehearing and
Review of Sentencing, thus, according to Petitioner, establishing that he had
exhausted his state court remedies.
Thereafter, May 22, 2023, Petitioner filed the Motion for Judgment on the
Pleadings. Respondent filed his response to the Court’s Show Cause Order
regarding this motion on June 20, 2023.
Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a one-year statute of limitations on the filing of federal habeas petitions.
Rhines v. Weber, 544 U.S. 269, 274 (2005). “Although the limitations period is
tolled during the pendency of a properly filed application for State post-conviction
or other collateral review, the filing of a petition for habeas corpus in federal court
does not toll the statute of limitations.” Id. at 274-75 (citations and internal
quotations omitted). Because of AEDPA's one-year statute of limitations and the
exhaustion requirement, some petitioners come to federal court with “mixed”
petitions, meaning their petitions include exhausted and unexhausted claims. Id. at
275. If the district court dismisses the petition because it contains unexhausted
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claims and the dismissal occurs after the one-year statute of limitations has run, the
petitioner is barred from returning to federal court after exhausting the unexhausted
claims. Id.
The Antiterrorism 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 the statute’s effective date of April 24, 1996. When reviewing a claim that has
been decided on the merits by a state court, AEDPA limits the scope of judicial
review in a habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a state court shall not be granted with respect to any
claim that was adjudicated on the merits in state court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
In construing AEDPA, the United States Supreme Court, in Williams v.
Taylor, held that:
Under the ‘contrary to’ clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that reached by [the U.S.
Supreme Court] on a question of law or if the state court decides a case
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differently than [the U.S. Supreme Court] has on a set of materially
indistinguishable facts. Under the ‘unreasonable application’ clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from [the U.S. Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
529 U.S. 362, 412–13 (2000). Furthermore, the Williams Court held that “a federal
habeas court may not issue the writ simply because that court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly.” 529 U.S. at 409.
A state court decision must be left undisturbed unless the decision was
contrary to or involved an unreasonable application of clearly established federal
law as determined by the Supreme Courtt of the United States, or the decision was
based on an unreasonable determination of the facts in light of the evidence
presented in state court. Colvin v. Taylor, 324 F.3d 583, 586-87 (8th Cir. 2003).
A decision is contrary to United States Supreme Court precedent if it decides
a case based on a different rule of law than the rule dictated by United States
Supreme Court precedent, or it decides a case differently than the United States
Supreme Court did on materially indistinguishable facts. Id. A decision may only
be overturned, as an unreasonable application of clearly established United States
Supreme Court precedent, if the decision is both wrong and an objectively
unreasonable interpretation or application of United States Supreme Court
precedent. Id. A federal habeas court may not disturb an objectively reasonable
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state court decision on a question of federal law even if the decision is, in the
federal court’s view, wrong under Eighth Circuit precedent, and even if the habeas
court would have decided the case differently on a clean slate. Id. State court
factual determinations are presumed to be correct, and this presumption can only
be rebutted by clear and convincing evidence. 28 U.S.C. §2254(e)(1).
Ineffective Assistance of Counsel
To prevail on his ineffective assistance of counsel claims, Petitioner must
show that his attorney's performance fell below an objective standard of
reasonableness and that he was prejudiced thereby. See Strickland v. Washington,
466 U.S. 668, 688 (1984). With respect to the first Strickland prong, there is a
strong presumption that counsel's conduct fell within the wide range of
professionally reasonable assistance. Id. at 689. Thus, “counsel should be strongly
presumed to have rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment,” and the “burden to show that
counsel's performance was deficient rests squarely on the defendant.” Burt v.
Titlow, 571 U.S. 12, 22-23 (2013) (quotation marks and citation omitted); see also
Strickland, 466 U.S. at 689 (noting that a petitioner must show that the challenged
action was not part of a sound trial strategy); Abernathy v. Hobbs, 748 F.3d 813,
816 (8th Cir. 2014) (explaining that reviewing courts must refrain “from engaging

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in hindsight or second-guessing of trial counsel's strategic decisions”) (citation
omitted)).
To establish “prejudice,” the 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. “Merely showing a
conceivable effect is not enough; a reasonable probability is one sufficient to
undermine confidence in the outcome.” Paulson v. Newton Corr. Facility, 773
F.3d 901, 904 (8th Cir. 2014) (citation omitted). Although Strickland requires a
showing of both deficient performance and prejudice, a “finding that no prejudice
exists is sufficient to conclude that counsel was not constitutionally ineffective –
[courts] need not make a determination regarding deficiency.” Holder v. United
States, 721 F.3d 979, 987 (8th Cir. 2013).
“Taken together, AEDPA and Strickland establish a ‘doubly deferential
standard’ of review.” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(quoting Cullen v. Pinholster, 563 U.S. 170, 202 (2011)).
First, under Strickland, the state court must take 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. Strickland, 466 U.S. 696. ... To satisfy Strickland,
the likelihood of a different result must be “substantial, not just
conceivable.” Id.
Under AEDPA, [federal courts] must then give substantial deference to the
state court's predictive judgment. So long as the state court's decision was
not “contrary to” clearly established law, the remaining question under the
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“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. [Harrington v. Richter, 562 U.S. 86, 112, 101
(2011)]. This standard was meant to be difficult to meet, and “even a strong
case for relief does not mean the state court's contrary conclusion was
unreasonable.” Id. at [102.]
Williams, 695 F.3d at 831-32. “When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 562 U.S. at 105.
In this context, a state court's findings of fact made in the course of deciding
a claim of ineffective assistance of counsel are presumed to be correct. Odem v.
Hopkins, 382 F.3d 846, 849 (8th Cir. 2004).
Discussion
The Court may not grant habeas relief under 28 U.S.C. § 2254 unless the
petitioner has “exhausted the remedies available in the courts of the State,” “there
is an absence of available State corrective process,” or “circumstances exist that
render such process ineffective to protect the rights of the applicant.” § 2254(b)(1).
The petitioner “has the burden to show that all available state remedies had been
exhausted or that exceptional circumstances existed.” Carmichael v. White, 163
F.3d 1044, 1045 (8th Cir. 1998). In Rhines, the Supreme Court held that “it likely
would be an abuse of discretion for a district court to deny a stay and to dismiss a
mixed petition if the petitioner had good cause for his failure to exhaust, his
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unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.” 544 U.S. at 278.
As the Court has previously noted, a stay was initially appropriate given the special
circumstances of the state court proceedings and the enactment of § 558.047. In
accordance with the dictates of Rhines, and as noted in the Court’s March 26, 2020
Order, “reasonable time limits [were placed] on [P]etitioner's trip to state court and
back.” Id. at 278. On March 26, 2020, Petitioner was given thirty days to pursue
state court remedies. To date, there is no information before the Court that,
Petitioner has, or has attempted, to do so. The information Petitioner uses to
attempt to establish that he has exhausted his claims in the state court are
unavailing. As Respondent correctly argues, before this Court’s stay order,
Petitioner filed pro se correspondence with the St. Louis City Circuit Court in his
original criminal case and his Rule 29.15 post-conviction case. The state court
construed Petitioner’s correspondence in the criminal case to advance two
motions, a motion for rehearing and review of sentencing and a motion for
reduction of sentence. The state court denied both motions on January 7, 2021. The
state court construed the pro se correspondence in the post-conviction case to be a
motion to reopen the post-conviction case and denied that motion on November 19,
2020. While the circuit court’s orders in both cases could be read to deny
Petitioner’s claims on the merits, the circuit court did not have authority to
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consider his procedurally improper motions as a matter of state law. In
the criminal case, Petitioner’s sentence was final on April 23, 2010, so the circuit
court did not have jurisdiction to consider his motions to review or reduce the
sentence. Zahnd v. Van Amburg, 533 S.W.3d 227, 230 (2017).
As to the pro se motion in the post-conviction case, Rule 29.15 motions are
governed by Missouri’s rules of civil procedure. Thus, a Rule
29.15 motion court only retains authority to reopen the case for thirty days.
Eastburn v. State, 400 S.W.3d 773–74 (Mo. 2013). “After the expiration of this
thirty-day period, the circuit court generally lacks the ability to reopen a final
judgment.” Id.
In accordance with Rhines, the Court will proceed with the exhausted claims
since dismissal of the entire petition would unreasonably impair the petitioner's
right to obtain federal relief, as is the case here. Id. at 270.
Petitioner’s Exhausted Claims
Petitioner’s claims that have been exhausted in the state court are that he was
denied equal protection in violation of Batson v. Kentucky, 476 U.S. 79
(1986) when the State struck Veniremember Dell Jones and that his trial counsel
was ineffective for failing to request a modification to the self-defense jury
instruction to include language hypothesizing the existence of “multiple
assailants.”
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Batson Challenge
Petitioner raised his equal protection claim in the State court. On direct
appeal, the Missouri Court of Appeals found that the trial court did not err in
accepting the prosecutor’s explanation for striking venireperson Jones:

During voir dire, the prosecutor asked the venire panel whether
anyone was acquainted with the courtroom staff. Jones raised her
hand and said that she was familiar with one of the sheriffs but
did not know her name. Jones explained that she was employed by
the city. As part of her duties, Jones taught classes to city
employees. She said that she did not teach any classes to sheriffs,
but recognized one in the courtroom.
Later, the prosecutor asked whether any venirepersons would be
unable to consider the full range of punishment in the event that
Defendant was found guilty of armed criminal action. One
venireperson indicated that he thought the armed criminal action
count would be "superfluous" if the jury found Defendant guilty of
first-degree murder because he expected the sentences would run
concurrently anyway. After a brief discussion with the trial court,
the venireperson said that he could consider "the high end" of a
sentencing range depending on the evidence that was presented.
While this venireperson was talking, Jones said, "right," loudly
enough for the prosecutor to hear her. Without being specifically
asked, Jones stated that she agreed with the previous speaker that
she could consider the range of punishment based on the evidence
presented.
At the conclusion of voir dire, the State used one of its six
peremptory strikes to remove Jones. Defendant raised a Batson
challenge, accusing the prosecutor of striking Jones on the basis of
her race. The trial court identified Jones as an African-American
female. The prosecutor explained that she struck Jones because
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she seemed to have a dominant personality and because she taught
classes to city employees she might tend to be more judgmental of
the prosecutor's trial performance:
[PROSECUTOR]: Your Honor, Ms. Jones is-works for the
city, and she teaches a number of classes to city employees,
including a class on attitude or attitude adjustment. She had
a very gregarious and infectious personality. She seemed to
be really making efforts to talk to everyone around her in the
jury area. I also noticed that she made a lot of a ... very big
facial expressions throughout voir dire, but wouldn't
necessarily respond verbally, just made very big facial
expressions. And it was my impression of Ms. Jones that she
would be almost an overwhelmingly strong candidate for the
jury pool because of the fact that she teaches these classes.
And furthermore, I thought that as a teacher, particularly
on attitude, I thought that she might be sort of more
judgmental of me and my performance in the courtroom
because she does teach classes.
Defense counsel asserted that Venireperson McCaffrey
(McCaffrey), a retired schoolteacher, was similarly situated "as far
as the teaching aspects." The prosecutor responded by pointing out
that McCaffrey taught first grade; she did not "teach adults on
attitude issues."
The trial court noted that the State's description of Jones as having
a "very gregarious personality was accurate" while, in contrast,
McCaffrey, was "extremely quiet." The trial court found that "there
is some validity to the State's notations as to the personality, and
that that is not a pretext, that that is something that is a
legitimate observation that might have a bearing on the
interaction of the jurors, and sufficiently distinguishes Ms. Jones
from Ms. McCaffrey." Accordingly, the trial court overruled
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Defendant's Batson challenge with respect to the State's strike of
Jones.
The Missouri Court of Appeals went on to set out the
three-part test established by Batson then applied that test to the
relevant facts to conclude that the trial court did not clearly err in
finding the prosecutor’s strike was not racially motivated. The Court of
Appeals explained:
Here, Defendant raised a Batson challenge to the State's strike of
Jones, and the trial court identified Jones as an African-American
female. Thus, the first step of the Batson inquiry was satisfied. The
prosecutor then offered two race-neutral reasons for striking
Jones. First, the prosecutor noted that Jones exhibited a "very
gregarious and infectious personality," that she made "big facial
expressions," and that she had made an effort to talk to everyone
in the jury area. The prosecutor indicated that she thought Jones
would be an "overwhelmingly strong candidate for that jury pool,"
presumably meaning that the prosecutor was afraid that Jones
would dominate the deliberations due to her strong personality.
Second, the prosecutor pointed out that Jones taught classes to city
employees, including classes on attitude adjustment, and worried
that Jones, due to her experience teaching these classes, would be
especially critical of the prosecutor's courtroom performance. As
these reasons were facially race neutral, the second step of the
Batson inquiry was satisfied.
The burden then shifted to Defendant to prove that the State's
proffered reasons for striking Jones were merely pretext for
intentional racial discrimination. Defendant's response to the
prosecutor's facially race-neutral reasons for the strike was that
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McCaffrey, apparently a "European-American juror," was also a
teacher and had not been struck by the State. However, as the
prosecutor and the trial court observed, McCaffrey was not
similarly situated to Jones. While both had a teaching background,
McCaffrey was a retired first-grade teacher while Jones was
currently employed to teach "attitude issues" to adult city
employees a particular concern of the prosecutor's because she
thought that that subject matter would lead Jones to be more
judgmental regarding the prosecutor's courtroom performance.
Equally problematic, Jones actively participated in voir dire,
speaking out even when other jurors were talking. In contrast,
McCaffrey remained reserved until she was specifically called
upon by the prosecutor. It was this personality difference that led
the prosecutor and the trial court to conclude Jones' s might be a
particularly dominant voice on the jury if seated.
The Missouri Court of Appeals properly articulated the Batson
standard and discussed its conclusion that the trial court’s conclusion
that the prosecutor’s reasoning was not improperly based on Ms. Jones’
race was not erroneous. This conclusion is supported by the record and
is not an unreasonable application of federal law. This ground for relief
is denied.
Ineffective Assistance of Counsel
Petitioner claims counsel was ineffective for failing to request a
modification to the self defense jury instruction to include the existence
of “multiple assailants.”

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The Missouri Court of Appeals acknowledged the required
standard upon which to assess counsel’s performance under Strickland.
While it is possible to modify a self-defense instruction against an attack
by multiple assailants, the Court concluded that the instruction would
not have been proper even if requested by counsel since there was no
evidence Petitioner acted in self-defense against multiple assailants. The
Appellate Court explained:
Six eye witnesses testified consistently that Victim’s friends
never confronted or attacked Movant during the encounter
between Movant and Victim. Movant himself testified that Victim
struck him first, that Movant struck back, that Victim drew a gun,
and then Movant then fired because “it was me or him.” Nowhere
does Movant contend any of Victim’s friends struck him, drew
guns on him, or attempted to strike him. In fact, Movant’s own
testimony makes it clear that these other individuals were across
the street when Movant shot Victim. Although Movant testified
these other individuals were “running towards us” from across the
street, this occurred after Movant drew his gun and there was no
evidence these other individuals were assailing Movant in any
way.
Since there was no evidence of multiple assailants, Petitioner was not
prejudiced by counsel not seeking the modification. Indeed, as the
Missouri Court of Appeals additionally explained:
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Second, even if the “multiple assailants” modification was
applicable, we find the record does not support a finding that
Movant was prejudiced. Instruction No. 7 did not prevent the jury
from considering the presence and conduct of Victim’s friends at
the time of the shooting. See Bolden, 423 S.W.3d at 811. The selfdefense instruction clearly advised the jury to “consider all of the
evidence in the case in determining whether the defendant acted
in lawful self-defense” (emphasis added). See State v. Goodine,
196 S.W.3d 607, 623 (Mo. App. S.D. 2006) (holding self-defense
instruction omitting “multiple assailants” language was not plain
error because it instructed the jury to “consider all of the
evidence,” allowing the jury to consider the actions of individuals
other than the victim); see also Mangum, 390 S.W.3d at 864
(finding the finding plain error and reversing where self-defense
instruction both erroneously omitted “multiple assailants” language
and also failed to instruct the jury to “consider all of the evidence”;
distinguishing Goodine). Instruction No. 7 also defined
“reasonable belief” as “a belief based on reasonable grounds, that
is, grounds that could lead a reasonable person in the same
situation to the same belief” (emphasis added). Bolden, 423
S.W.3d at 811 (affirming denial of post-conviction relief, holding
self-defense instruction not defective for failing to include
“multiple assailants” modification where reasonable belief is
defined in terms of “a reasonable person in the same situation”).
To obtain relief, Movant must show that counsel’s failure to
request the “multiple assailants” modification deprived Movant of
his right to a fair trial. Id. However, Instruction No. 7 allowed the
jury to consider the presence and conduct of victim’s friends when
determining whether Movant’s use of force in self-defense was
reasonable, and trial counsel made this argument to the jury in
closing arguments. Therefore, Movant failed to establish prejudice
because the instructions did not mislead the jury into believing it
could only consider Victim’s conduct when determining whether
Movant’s use of deadly force was reasonable. See id. (in a claim
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alleging ineffective assistance based on instructional error,
“prejudice is the potential for confusing or misleading the jury”).
The conclusion of the Appellate court that Petitioner was not
prejudiced was reasonable based on the evidence presented at trial. Since
Petitioner cannot establish prejudice, under Strickland, Petitioner’s claim
of ineffective assistance of counsel fails.
Conclusion
For the foregoing reasons, the Court concludes none of the grounds in
Petitioner’s Petition entitle him to relief.
Certificate of Appealability
The Court finds dismissal of the petition is not debatable, reasonably subject
to a different outcome on appeal, or otherwise deserving of further proceedings.
Therefore, a certificate of appealability will not be issued by this Court. Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983). If the Petitioner desires further review of his
motion, he may request issuance of a certificate of appealability by a circuit judge
of the Eighth Circuit Court of Appeals.
Accordingly,
IT IS HEREBY ORDERED that the First Amended Petition for Writ of
Habeas Corpus [Doc. No. 13] is DENIED.

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IT IS FURTHER ORDERED that no certificate of appealability shall
issue.
A separate judgment in accordance with this Opinion, Memorandum and
Order is entered this same date.
Dated this 18th day of September, 2023.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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