Weinhaus v. Missouri Department of Corrections Director et al

Filing 30

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioners motion for a hearing (Doc. 29 ) is DENIED without prejudice. To the extent that petitioner alleges he is suffering retaliation in prison for filing a habeas petition, he may file a comp laint for relief under 42 U.S.C. § 1983. See, e.g., Muhammad v. Close, 540 U.S. 749, 751 (2004). IT IS FURTHER ORDERED that petitioners motion (Doc. 29) be unsealed. Pursuant to E.D. Mo. L.R. 13.05, parties must seek leave and make a showing o f good cause to file documents under seal and ex parte. Petitioner has not made such a showing nor sought leave, and after reviewing the content of petitioners motion with attention to possible privacy concerns, the Court declines to restrict acc ess to the motion. If the Court later concludes that expansion of the record or an evidentiary hearing are necessary in the just determination of this action, an appropriate order will be issued. Signed by Magistrate Judge David D. Noce on 7/27/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFREY WEINHAUS,
Petitioner,
v.

TROY STEELE, in his representative
Capacity as Warden, of the Eastern
Reception Diagnostic and Correctional
Center,
Respondent.

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No. 4:17 CV 1941 DDN

MEMORANDUM AND ORDER
DENYING MOTION FOR HEARING
This matter is before the Court on petitioner’s ex parte motion for a hearing. (Doc.
29). The parties have consented to the exercise of plenary authority by the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Petitioner Jeffrey Weinhaus, a Missouri state inmate, commenced this action on
July 10, 2017, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docs. 1,
25). He was convicted in the Circuit Court of the Lafayette County of possession of a
controlled substance, first-degree assault on a law enforcement officer, and armed criminal
action. (Doc. 27). He received concurrent sentences of 2 years, 30 years, and 30 years
imprisonment, respectively. (Id.). For the reasons discussed below, petitioner’s motion
for a hearing is denied without prejudice, subject to reconsideration upon further review of
the case.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) permits evidentiary
hearings on federal habeas review, but with significant restrictions. See 28 U.S.C. §

2254(e). Determinations of factual issues made by a state court are presumed to be
correct. Id. If an applicant has failed to develop the factual basis of a claim in state court
proceedings, no evidentiary hearing is permitted, unless the applicant shows that:
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. 2254(e)(2).
Because this limitation only applies to prisoners who failed to develop the factual
basis of their claim in state court proceedings, the first question is whether the relevant
facts were developed in state court, and, if not, whether it was due to a failure of
petitioner.

Such a failure is established by lack of diligence or some greater fault

attributable to petitioner or his counsel. If petitioner has diligently pursued an issue in
state court, he is not precluded from seeking an evidentiary hearing. Townsend v. Sain,
372 U.S. 293 (1963) (overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992)).
Petitioner’s motion does not specify what would be presented at an evidentiary
hearing. In reviewing petitioner’s six grounds for habeas relief, only one alleges that a
factual basis at trial was undeveloped: in Ground 1, petitioner claims that his attorney
failed to offer evidence regarding the placement of his pistol holster in the form of FBI
agent testimony and a still shot of a video shown to the jury. Petitioner raised some of
these claims on direct appeal and others in post-conviction proceedings. (Doc. 25). The
post-conviction relief court entered judgment on his claims without a hearing. (Id.).

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The record shows that petitioner made a reasonable attempt to investigate and
pursue this claim, precluding the application of the § 2254(e)(2) hearing restriction. He
sought to introduce some of this evidence at trial and referenced this evidence both at trial
and in his post-conviction motion, and any lack of diligence he attributes to his attorney in
an ineffective-assistance-of-counsel claim. (Doc. 27, Exs. 8, 16).
Accordingly, this court now evaluates the propriety of a hearing under Townsend v.
Sain, 372 U.S. 293 (1963) (overruled on other grounds by Keeney v. Tamayo-Reyes, 504
U.S. 1 (1992)). The burden is on the petitioner to allege sufficient facts to support the
grant of an evidentiary hearing. In exercising discretion to hold an evidentiary hearing,
this court will focus on whether a new evidentiary hearing would have the potential to
advance the petitioner’s claim. That is, whether petitioner’s allegations, if true, would
establish his right to relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
Assuming that petitioner seeks to present the evidence about his pistol holster, the
court is not persuaded that an evidentiary hearing is necessary at this time. The video at
issue from which the screenshot would have been taken was presented to the jury at trial,
and any claims about the screenshot and the FBI agent testimony can be determined as a
matter of law in addressing the question of whether petitioner’s trial counsel was effective.
As the remainder of petitioner’s claims also involve questions of law, not fact, an
evidentiary hearing is not required, because legal questions can be resolved by reference
to the state court record. See Schriro, 550 U.S. at 474.
Additionally, the Supreme Court has limited the evidence available in § 2254(d)(1)
claims to the state-court record, because § 2254(d)(1) review measures what a state court
knew and did against the Supreme Court’s precedents at that time. Cullen v. Pinholster,
563 U.S. 170, 181-83 (2011). “It would be contrary to that purpose to allow a petitioner
to overcome an adverse state-court decision with new evidence introduced in a federal
habeas court and reviewed by that court in the first instance effectively de novo.” Id. at

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182. Accordingly, this court declines to consider new evidence at a hearing on this habeas
petition. It conducts its review of the habeas petition based on the state-court record.
For these reasons,
IT IS HEREBY ORDERED that petitioner’s motion for a hearing (Doc. 29) is
DENIED without prejudice. To the extent that petitioner alleges he is suffering retaliation
in prison for filing a habeas petition, he may file a complaint for relief under 42 U.S.C. §
1983. See, e.g., Muhammad v. Close, 540 U.S. 749, 751 (2004).
IT IS FURTHER ORDERED that petitioner’s motion (Doc. 29) be unsealed.
Pursuant to E.D. Mo. L.R. 13.05, parties must seek leave and make a showing of good
cause to file documents under seal and ex parte. Petitioner has not made such a showing
nor sought leave, and after reviewing the content of petitioner’s motion with attention to
possible privacy concerns, the Court declines to restrict access to the motion.
If the Court later concludes that expansion of the record or an evidentiary hearing
are necessary in the just determination of this action, an appropriate order will be issued.

/s/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE
Signed on July 27, 2018.

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