Wolfin v. Lewis

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the petition of Thomas G. Wolfin, Jr. for a writ of habeas corpus is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An appropriate Judgment will be issued on this date. Signed by District Judge Rodney W. Sippel on 5/23/2018. (CAR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THOMAS G. WOLFIN, JR.,
Petitioner,
v.
JASON LEWIS,
Respondent.

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No. 4:17 CV 1106 RWS

MEMORANDUM AND ORDER
This matter is before me upon the petition of Missouri state prisoner Thomas
Wolfin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After carefully
considering his pro se petition, respondent’s brief, and petitioner’s multiple
supplemental filings, I will deny the petition for the reasons set forth below.
BACKGROUND
A. Trial
Wolfin was convicted on February 26, 2014, of first-degree domestic
assault, third-degree assault of a law-enforcement officer, and resisting arrest in the
24th Judicial Circuit Court of Missouri, St. Genevieve County. (Doc. 16, Ex. 1 at
274). He was sentenced as a prior and persistent offender on May 20, 2014, to
prison terms of twenty years for domestic assault and concurrent one-year
sentences for the other two convictions. (Id. at 296-297).

B. Direct Appeal
Petitioner raised two grounds in his direct appeal. (Doc. 16, Ex. 2). First, he
argued that the prosecution failed to prove first-degree domestic assault because
the victim (“HB”) sustained only “physical injury” rather than “serious physical
injury” as required by statute. (Id. at 17). Second, petitioner argued that the trial
court plainly erred in excluding additional evidence surrounding his divorce from
HB, because it precluded petitioner from presenting his defense that the allegation
of domestic assault was a fabrication intended to obtain favorable divorce
settlement terms. (Id. at 19).
The Eastern District of the Missouri Court of Appeals affirmed the trial
court on both grounds.

(Doc. 16, Ex. 6). The court held that the prosecution’s

burden of proof on first-degree domestic assault was not to show that the victim
actually sustained “serious physical injury,” but rather that petitioner attempted to
cause such injury. (Id. at 4). After reviewing the evidence presented at trial,
including that “Wolfin told H.B. [throughout the assault] that he was going to kill
her[,]” the court held that:
Evidence that Wolfin repeatedly head-butted H.B.,
choked [her], and slammed [her] into the floor is
consistent with an intent to create a substantial risk of
death, serious disfigurement, or impairment. Any of
these individual acts could qualify as a substantial step
toward causing [her] serious physical injury. Evidence of
these cumulative acts unquestionably [does so.]
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(Id. at 5) (emphasis added). The court also declined to exercise its discretion to
review Wolfin’s second point for plain error, because Wolfin failed to raise this
claim during his trial. (Id. at 6). The court found that petitioner was, in fact, able
to present his defense theory to the jury in the form of evidence that H.B. filed for
divorce, sought maintenance, and sought an award of property. (Id. at 7). The
court concluded that the trial court’s determination that “any evidence or argument
as to the fairness of the divorce settlement was irrelevant and likely to confuse the
jury” was a reasonable exercise of its broad discretion. (Id.)
C. Post-Conviction Review
Petitioner subsequently returned to the trial court for post-conviction review.
His initial pro se motion for an evidentiary hearing (Doc. 16, Ex. 7 at 13) was
substantially amended by appointed counsel (Id. at 27). His amended motion
presented two claims. First, he argued that he received ineffective assistance of
trial counsel when counsel did not introduce HB’s hospital records as evidence
challenging the severity of her injuries. (Id. at 28). Second, he argued that he
received ineffective assistance of trial counsel when counsel did not have him
evaluated for his competency to stand trial. (Id. at 30).
The trial court denied both claims. (Id. at 61). The court cited the Court of
Appeals’ holding that the severity of HB’s injuries was irrelevant; rather, “the State
was required [to show only] that the [petitioner] attempt to kill or cause serious
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physical injury.

The evidence abundantly established such proof, both by

[petitioner’s] repeated conduct and by [his] statements at the time of the assault, as
overheard by the victim’s daughter.” (Id. at 62). The court further held that based
on the information available to trial counsel at the time, as evidenced by the trial
transcript, petitioner clearly understood the proceedings and was competent to
assist in his own defense. (Id. at 63).
D. Appeal of Post-Conviction Review
Petitioner subsequently returned to the Court of Appeals, claiming that the
trial court clearly erred in denying his post-conviction review motion. The Court
of Appeals affirmed the trial court on both grounds. (Doc. 16, Ex. 10). The Court
of Appeals substantially reiterated its previous holding on petitioner’s first
argument: “Given the abundant evidence showing [petitioner’s] attempts to cause
serious physical injury, he fails to establish that there is a reasonable probability
that the result of the proceedings would have been different if the medical evidence
[that serious physical injury was not actually sustained] had been admitted.” (Id. at
8).
In denying petitioner’s second point, the court noted that “‘[when]
communication problems are caused by the defendant’s desire to control the
defense, as opposed to mental impairments, and there is no indication that the
defendant is generally incapable of cooperating with counsel, the defendant does
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not demonstrate that he is incompetent to stand trial.’” (Id. at 8 (quoting Davis v.
State, 486 S.W.3d 898, 911-12 (Mo. banc 2016) (internal citation omitted))). The
court further observed that “[nothing] in the record was sufficient to indicate to
[trial counsel] that [petitioner] possessed a questionable mental condition such that
she had a duty to have [him] evaluated. Therefore, that [she] did not have [him]
evaluated was not ineffective assistance of counsel.” (Id. at 10).
E. Petition for Writ of Habeas Corpus
Now, Wolfin’s pro se petition appears to raise nine grounds for relief, as
follows:
First, that he received ineffective assistance of trial counsel because stateappointed public defenders “are defending the state.” (Doc. 1 at 6).
Second, that the prosecuting attorney engaged in a conspiracy to fabricate
the charges. (Id. at 6).
Third, that he received ineffective assistance of trial counsel when counsel
did not call additional (unnamed) witnesses and make additional objections. (Id. at
14).
Fourth, that he received ineffective assistance of appellate counsel when
counsel allegedly accepted a bribe from the prosecuting attorney and did not call
additional witnesses as requested by petitioner. (Id. at 23).

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Fifth, that the Missouri Department of Corrections refused to provide
allegedly-exculpatory photos sent to Wolfin by family members while he was
incarcerated during his appeal. (Id. at 25).
Sixth, that his ex-wife and her daughter are mentally disabled. (Id. at 28).
Seventh,1 that each successive defense counsel refused to bring accusations
of prejudice against the prosecuting attorney and trial judge. (Id. at 34).
Eighth, that he received ineffective assistance from post-conviction review
counsel, because counsel presented the claim that petitioner’s trial counsel was
ineffective for not having Wolfin examined for mental competency to stand trial.
(Id. at 37). In other words, Wolfin appears to argue that because his PCR counsel
presented a claim that trial counsel failed to move for a competency examination,
his PCR counsel thereby disparaged Wolfin’s mental competency, and therefore
his PCR counsel was constitutionally ineffective.
Ninth, that his ex-wife filed a false police report. (Id. at 40).
LEGAL STANDARD
A federal district court’s power to review state court criminal decisions in a
federal habeas corpus proceeding is limited. Harrington v. Richter, 562 U.S. 86,
92 (2011) (“Under 28 U.S.C. § 2254(d), the availability of federal habeas relief is

1

Petitioner labels grounds seven, eight, and nine as “Ground 2,” “Ground 3,” and “Ground 4”
with no explanation. For clarity of presentation, I refer to them as his seventh, eighth, and ninth
grounds for relief.
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limited with respect to claims previously ‘adjudicated on the merits’ in state-court
proceedings”). “As a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being presented
in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 102.
A federal court=s power to grant a writ of habeas corpus is governed by 28
U.S.C. ' 2254(d), which provides:
An application for a writ of habeas corpus on behalf of a person in
custody 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 claimB
(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 Supreme Court construed ' 2254(d) in Williams v. Taylor, 529 U.S. 362
(2000). With respect to the “contrary to” language, a majority of the Court held
that a state court decision is contrary to clearly established Federal law “if the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on a
question of law” or if “the state court decides a case differently than [the] Court
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has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413.
Under the “unreasonable application” prong of ' 2254(d)(1), a writ may issue if
“the state court identifies the correct governing legal rule from [the Supreme
Court=s] cases but unreasonably applies [the principle] to the facts of the particular
state prisoner=s case.” Id. Thus, “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 409. Although the
Court failed to specifically define “objectively unreasonable,” it observed that “an
unreasonable application of federal law is different from an incorrect application of
federal law.” Id. at 410.
Moreover, “a determination of a factual issue by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”

28 U.S.C. '

2254(e)(1).
In addition, claims in a habeas petition “that have not been presented to the
state courts, and for which there are no remaining state remedies, are procedurally
defaulted.” Skillicorn v. Luebbers, 475 F.3d 965, 976 (8th Cir. 2007). “Unless a
habeas petitioner shows cause and prejudice or that he is actually innocent of the
charges, a court may not reach the merits of procedurally defaulted claims in which

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the petitioner failed to follow applicable state procedural rules in raising the
claims.” Id.
ANALYSIS
A. Petitioner’s claims are procedurally defaulted and without merit.
Petitioner raises nine claims in his habeas petition. None of these claims
were exhausted in state courts.

As a result, these claims are procedurally

defaulted.
Nonetheless, per 28 U.S.C. § 2254(b)(2), I have substantively reviewed all
of Wolfin’s claims and find they are without merit. Wolfin has filed handwritten
and voluminous submissions that are amply supplied with conspiracy theories2 and
with inflammatory references to Respondent.3
Grounds one, two, four, six, and seven are frivolous.
Ground three is without merit because Wolfin fails to identify the witnesses
or objections that are the basis of that claim.
Ground five is without merit because Wolfin fails to identify how the photos
depicting the circumstances of his arrest would materially differ from the
circumstances presented by the arresting officers’ testimony at trial. (Id. at 25).
2

Including, inter alia, that the public defender’s office colludes with prosecutors to secure
convictions (Doc. 1 at 9), that court clerks have been secretly altering records of documents in
his case (Doc. 5 at 2), that the prosecuting attorney bribed petitioner’s appellate counsel to throw
the case (Doc. 12 at 4), and that a trial judge’s implicit warning that he could be held in contempt
for disruptive conduct was actually a threat to have him killed (Doc. 20 at 1).
3
See, e.g., Doc. 1 at 1, wherein he begins his petition by addressing Respondent as the
Antichrist.
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To the extent that Wolfin further alleges that additional unspecified “class
pictures” would demonstrate judicial bias during his trial because an unnamed
judge allegedly had a romantic relationship with Wolfin’s “sister-in-law’s younger
sister,” ground five is frivolous. (Id. at 27) He does not explain how the class
pictures would establish such a relationship, much less the relevance of the
unnamed judge to petitioner’s case.
Ground eight is procedurally defaulted because Wolfin is not pursuing his
PCR counsel’s claim that Wolfin’s trial counsel was ineffective. Rather, Wolfin
appears to be arguing that because PCR counsel raised this claim, counsel thereby
disparaged Wolfin’s mental competency and was therefore constitutionally
ineffective. Ground eight is also without merit.
In support of ground nine, petitioner states as follows in his pro se petition:
Ground [Nine]: Filing False Reports
(a) Supporting facts (Do not argue or cite law. Just state
the specific facts that support your claim): March 15/16
2016 (Friday) night, (Sat) morning, and 1 officer shows
up to a Domistic [sic] Violance [sic] call? (Protocol –
Standard Procedures)
(b) If you did not exhaust your state remedies on Ground
[Nine], explain why: The State’s Court appointed
attorneys are assisting the States Conviction, They will
not help Petitioner Bring Evidence againts [sic] there
[sic] Employer and Co-workers, Expecialy [sic] Murder
Charges, Distroying [sic] Evidence, Tampuring [sic] with
Witnesses & Evidence (Etc.)
(Doc. 1 at 40).
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The conduct charged in the offense occurred on March 15 and 16 of 2013.
(Doc. 16, Ex. 1 at 103-106). It is not clear why petitioner references the same
dates in 2016. To the extent ground nine can be inferred to be a claim that the
victim lied to police on the night of the offense, ground nine most closely
resembles a claim of actual innocence, which is not a cognizable ground for habeas
relief.
Alternatively, ground nine may refer to the following portion of the trial
transcript, during which Wolfin was being cross-examined by the prosecutor:
Q. Now, do you recall on February 20, 1996, being
sentenced after being found guilty of DWI third offense –
A. ATV.
Q. DWI third offense?
A. On an ATV.
Q. Is that what you were found guilty of?
A. On an ATV, yeah.
Q. So you pled guilty – I’m sorry, you were found guilty
of DWI third offense. And you want to make it clear that
you were on an ATV at the time?
A. Right, not in a car.
Q. And do you recall also being sentenced on the
misdemeanor offense of resisting arrest on that same
day?
A. Yeah.
Q. And actually that was two counts of a misdemeanor of
resisting arrest?
A. Right.
Q. And you received a sentence of seven years from the
judge on the felony charge of DWI third offense.
A. Right. That was the same time she got that filing a
false police report on me. Got two years probation.
[PROSECUTOR]: Judge, I would ask that that be
completely stricken.
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THE DEFENDANT: I’m sure you would.
[PROSECUTOR]: There is absolutely no record of
that at all.
THE DEFENDANT: I got it.
THE COURT: The objection is sustained. The
jury is instructed to disregard the witness’s last
statement that he volunteered.
THE DEFENDANT: I’m sure you don’t want
them to know that.
THE COURT: Sir, wait until you’re asked a
question.
(Doc. 16, Ex. 1 at 246-247) (emphasis added). To the extent that ground nine can
be inferred to be a claim that the victim filed a false police report in 1996, ground
nine fails to state a cognizable habeas claim.
B. A certificate of appealability is not warranted.
I have considered whether to issue a certificate of appealability in this matter
under 28 U.S.C. § 2253. To grant such a certificate, I must first find a substantial
showing of the denial of a federal constitutional right. See Tiedeman v. Benson,
122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is “a showing that issues
are debatable among reasonable jurists, [that] a court could resolve the issues
differently, or [that] the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir.
1994)). Upon review of Wolfin’s claims, I conclude that he has not made such a
showing.
Accordingly,

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IT IS HEREBY ORDERED that the petition of Thomas G. Wolfin, Jr. for
a writ of habeas corpus is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
An appropriate Judgment will be issued on this date.

________________________________
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 23rd day of May, 2018.

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