Hendricks v. Lewis

Filing 15

MEMORANDUM AND ORDER re: 1 PETITION for Writ of Habeas Corpus filed by Petitioner Terrence Hendricks motion is DENIED. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by District Judge Stephen N. Limbaugh, Jr on 9/25/18. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERRENCE HENDRICKS,
Petitioner,
vs.
JASON LEWIS,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:17CV02160 SNLJ

MEMORANDUM AND ORDER
This case is before the Court on petition under 28 U.S.C. § 2254 for writ of habeas
corpus. The State has filed a response in opposition. Petitioner has filed a reply.
Statement of Custody and Parties
Petitioner Terrence Hendricks is currently incarcerated at the Southeast
Correctional Center in Charleston, Missouri. A jury convicted Petitioner of assault in the
first degree, robbery in the first degree, burglary in the first degree, and three counts of
armed criminal action. On June 11, 2010, the Circuit Court of the City of St. Louis
sentenced Petitioner to 30 years’ incarceration for assault, 30 years’ incarceration for
burglary, and life imprisonment for the remaining counts. Jason Lewis, Warden of the
Southeast Correctional Center, is Petitioner’s custodian and the proper respondent.
Statement of the Case
Petitioner raises four grounds for relief: 1) that the trial court erred when it
sustained the State’s objection to the admission of a 911 tape made by Jeanne Gray
because Gray allegedly made inconsistent statements in the tape; 2) that the trial court

erred when it struck Venireperson Watson for cause because Watson indicated that he
could be fair and impartial; 3) that trial counsel was ineffective for failing to present
evidence that Jennifer Strong had previously identified Petitioner’s co-defendant as the
shooter; and 4) that trial counsel was ineffective for failing to formally request a
continuance and argue that Petitioner was being deprived of counsel of his choice.
Petitioner’s first, second, and fourth claims are procedurally barred from review.
His first and second claims were raised on direct appeal, but they were not preserved for
review and reviewed for plain error only. Failing to preserve a claim for review is an
independent and adequate state-law ground for procedural default of a federal habeas
claim, even when the claim is reviewed for plain error. Petitioner’s fourth claim was
never raised in any prior proceeding, so it is barred from review now. Petitioner’s third
claim was denied by the Missouri Court of Appeals on the merits, and this Court will
likewise deny it now.
Analysis
I.

Petitioner’s first and second grounds for relief are barred from review
because Petitioner failed to preserve them at trial and, though the
Missouri Court of Appeals did review Petitioner’s second claim on appeal,
it did so under plain error review. Alternatively, both claims are meritless.

Petitioner’s first ground for relief is that the trial court erred when it sustained the
State’s objection to the admission of a recording of a 911 phone call made by Jeanne
Gray. (Doc. 1-2 at 1). His second ground for relief is that the trial court erred when it
struck Venireperson Watson for cause. (Doc. 1-2 at 6). Petitioner raised both of these
claims on direct appeal, but neither was preserved for review. Petitioner’s first ground
2

differed on appeal from the legal theory which Petitioner presented at the time of trial.
(Resp. Ex. C at 5). Petitioner’s second ground was not preserved in his motion for new
trial. (Resp. Ex. A at 28).
When a petitioner raises a claim in a federal habeas petition which was procedurally
defaulted in state court, the independent and adequate state ground doctrine mandates the
federal court dismiss the claim. Coleman v. Thompson, 501 U.S. 722, 729–32 (1991).
This rule applies whether the state law ground is substantive or procedural. Id. at 729.
Here, Petitioner failed to comply with state procedural rules by failing to preserve his
first and second grounds for review. The Missouri Court of Appeals declined to review
Petitioner’s first claim for plain error. (Resp. Ex. C at 7). The court of appeals did review
Petitioner’s second claim for plain error, but that does not excuse Petitioner’s procedural
default. Clark v. Bertsch, 780 F.3d 873, 876–77 (8th Cir. 2015) (stating that a state
court’s discretionary plain-error review does not excuse procedural default).
Where a claim is defaulted in state court under an independent and adequate state
procedural rule, federal habeas review of the claim “is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Petitioner has not
demonstrated cause for his default or actual prejudice, nor has he shown that failure to
consider his claims would result in a fundamental miscarriage of justice. Because
Petitioner failed to preserve his claims for review in state court, his first and second

3

grounds are procedurally barred from review by this Court. Additionally, even though
Petitioner’s claims are barred, they are also meritless.
A. Petitioner’s first ground for relief is meritless.
Petitioner alleges that the trial court erred when it excluded the tape recording of a
911 call made by the victim’s neighbor because the neighbor’s in-court description of the
victim’s shooter allegedly was inconsistent with the description she gave the 911
operator. “The admissibility of evidence in a state trial is a matter of state law.” Clark v.
Groose, 16 F.3d 960, 963 (8th Cir. 1994). A federal court is normally bound by a state
court’s interpretation of state law. Id. However, “a federal court may grant habeas relief
when a state court’s evidentiary rule ‘infringes upon a specific constitutional protection
or is so prejudicial that it amounts to a denial of due process.’” Id.; citing Turner v.
Armontrout, 845 F.2d 165 (8th Cir. 1988).
In Petitioner’s direct appeal, the Missouri Court of Appeals stated that the trial
court’s decision to exclude the 911 call was consistent with Missouri law. The court of
appeals noted that, “the neighbor’s testimony was not inconsistent in any material way
with the description she gave the 911 operator.” (Resp. Ex. C at 6). Petitioner alleges that
at trial, the neighbor testified that the shooter had a white design on his sweatshirt and
had dreadlocks, but in the 911 call, the neighbor omitted the details of the white design
and the hair. (Doc. 1-2 at 2–3). However, the court of appeals noted that the neighbor
admitted at trial that she did not tell the 911 operator about the white design, so the 911
call could not have been used to impeach her. (Resp. Ex. C at 6–7). Moreover, Petitioner
admits that he was the only perpetrator with dreadlocks. (Doc. 1-2 at 2 n. 2). Petitioner
4

has not shown a denial of due process by the trial court’s exclusion of the 911 call tape
recording, so his first ground for relief must fail.
B. Petitioner’s second ground for relief is meritless.
Petitioner’s second ground for relief is that the trial court erred when it struck
venireperson Watson for cause. (Doc. 1-2 at 6). He alleges that Watson stated that he
could be fair and impartial and that Watson’s exclusion violated Petitioner’s Fifth, Sixth,
and Fourteenth Amendment rights. Id. This claim is plainly meritless. With the exception
of capital punishment cases, a criminal defendant does not have a right to any specific
juror’s presence on the jury. Lockhart v. McCree, 476 U.S. 162, 177–79 (1986).
Petitioner does not allege that his jury did not consist of qualified jurors.
Moreover, the Missouri Court of Appeals held that the trial court’s decision to
strike venireperson Watson was supported by the record. (Resp. Ex. C at 8). Watson
stated that, in his view, a witness who received a plea bargain in exchange for his
testimony would have no credibility, and if the State presented such a witness, “it would
be a bad shake for you that you put him up there.” Id. He later reversed his position under
questioning by defense counsel, but the trial court was properly concerned about
Watson’s potential bias based on his initial statements. Id. Petitioner’s second ground is
meritless.
II.

Petitioner’s third ground for relief was denied by the Missouri Court of
Appeals during Petitioner’s post-conviction relief proceedings. That denial
is entitled to deference by this Court.

Petitioner’s third ground for relief is that trial counsel was ineffective for failing to
present evidence that Jennifer Strong previously identified Petitioner’s co-defendant as
5

the victim’s shooter. (Doc. 1-2 at 11). Petitioner raised this claim on appeal from the
denial of his motion for post-conviction relief and the Missouri Court of Appeals denied
it on the merits. See generally (Resp. Ex. F). That merits denial is entitled to deference by
this Court. Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012); 28 U.S.C. § 2254(d).
In order to succeed on an ineffective assistance of counsel claim, Petitioner must
show 1) that counsel failed to exercise the level of skill and diligence that a reasonably
competent attorney would exercise in a similar situation, and 2) that Petitioner was
prejudiced by counsel’s failure. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To
prove prejudice, a petitioner must show there was a reasonable probability that, but for
trial counsel’s errors, the result of the proceeding would have been different. Id. at 694.
Utilizing the Strickland standard, the Missouri Court of Appeals held that trial
counsel’s performance was not deficient. (Resp. Ex. F at 5–6). The witness in question,
Jennifer Strong, was apparently a developmentally disabled woman who originally stated
that Petitioner assaulted the victim, her father, but later told police that she saw
Petitioner’s co-defendant near her father. Id. at 2. The court of appeals noted that trial
counsel “carefully considered how to use the statements made by Jennifer.” Id. at 6. Trial
counsel was prepared to use Ms. Strong’s statements on cross-examination, but chose not
to when Ms. Strong did not identify who shot her father during trial. Id. The court of
appeals correctly held that trial counsel’s decision not to use Ms. Strong’s prior

6

statements was reasonable trial strategy in light of all of the circumstances at trial. Id.
This Court denies deny Petitioner’s third ground for relief.
III.

Petitioner’s fourth ground for relief is procedurally barred from review
because Petitioner failed to raise it in state court. Additionally, his fourth
ground is meritless.

Petitioner’s fourth ground is that trial counsel was ineffective for failing to “formally
request” a continuance and argue that Petitioner was being denied counsel of his choice
in violation of the Sixth Amendment. (Doc. 1-2 at 13). Petitioner never raised this claim
on direct appeal or in his motion for post-conviction relief. Under Missouri law, if a
petitioner raises a claim in a habeas motion which could have been raised on direct
appeal or in a post-conviction motion, that claim is procedurally defaulted. State ex rel.
Zinna, v. Steele, 301 S.W.3d 510, 516 (2010). Only limited circumstances permit a barred
claim. Id. When a petitioner raises a claim in a federal habeas petition which was
procedurally defaulted in state court, the independent and adequate state ground doctrine
mandates the federal court dismiss the claim. Coleman, 501 U.S. at 729–32. A
procedurally defaulted claim may be raised in a federal habeas petition only if the
petitioner can demonstrate cause and actual prejudice, or that he is actually innocent.
Bousley v. U.S., 523 U.S. 614, 622 (1998). Petitioner does not allege that any of these
exceptions apply here, so his claim is barred from review.
Even if Petitioner’s claim was not barred, it is plainly meritless. Petitioner alleges that
trial counsel was ineffective for failing to argue that Petitioner was being denied counsel
of his choice, but Petitioner was found to be indigent and was represented by the
Missouri Public Defender System. A criminal defendant has a right to an attorney, but the
7

Sixth Amendment does not give a defendant the right to an attorney he cannot afford or
an attorney who declines to represent the defendant. Wheat v. U.S., 486 U.S. 153, 159
(1988). Additionally, a trial court has “wide latitude” to balance a defendant’s right to
counsel of choice “against the demands of its calendar.” U.S. v. Gonzalez-Lopez, 548
U.S. 140, 152 (2006); see also U.S. v. Rodriguez, 612 F.3d 1049, 1054–55 (8th Cir. 2010)
(holding that day-of-trial motion for substitution of counsel was properly denied).
Here, Petitioner apparently wished for the trial court to continue his case the morning
of trial so that a different attorney might enter in place of his court appointed attorney.
(Doc. 1-2 at 13). Petitioner was found to be indigent and he has presented no evidence to
rebut that finding. The trial court examined Petitioner regarding this issue before voir dire
and Petitioner admitted that he had not spoken with the new attorney. (Resp. Ex. K at 14).
Petitioner also admitted that the new attorney had not told Petitioner that he would
represent him. Id. The trial court noted that the new attorney had not entered an
appearance on behalf of Petitioner. Id.
Petitioner alleges that his mother would have paid a $1,000 retainer fee to a new
attorney that morning and that his mother could have told the trial court as much if trial
counsel had allowed her to, but the record demonstrates that Petitioner’s mother was
present during the pre-trial proceedings and apparently did make a statement to the trial
court. (Doc. 1-2 at 14); (Resp. Ex. K at 17). If Petitioner’s mother was willing to make a
$1,000 payment to a new attorney, she could have told the trial court at that time.
Moreover, Petitioner’s trial counsel could not be ineffective for failing to undertake a
futile action, and the trial court clearly stated that it would not grant Petitioner a
8

continuance the morning of trial. (Resp. Ex. K at 14). Based on these facts, the trial court
properly declined to grant Petitioner a continuance. Petitioner’s fourth ground is
meritless.
CONCLUSION
For these reasons, Hendricks’ petition for a writ of habeas corpus, #1, is DENIED.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability. A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 25th day of September, 2018.

_________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

9