Mills v. Ramey
OPINION, MEMORANDUM AND ORDER. (See Full Order.) The Court denies Petitioner's petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody 1 . The Court will not issue a certificate of appealability. A separate judgment is entered this date. Signed by District Judge Henry Edward Autrey on 4/1/2021. (CBL)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
Case No: 4:20CV1589 HEA
OPINION, MEMORANDUM AND ORDER
Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254
[Doc. No.1] on November 9, 2020. Respondent filed a Response to the Court’s
Order to Show Cause Why Relief Should Not be Granted on December 18, 2020.
Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States
District Courts, this Court has determined that there are no issues asserted that give
rise to an evidentiary hearing and therefore one is not warranted. For the reasons
explained below, the petition will be denied.
Facts and Background
The Missouri Court of Appeals described the pertinent facts as follows:
Viewed in the light most favorable to the verdict, the evidence adduced at
trial showed the following: Appellant was not the biological father of sixyear-old A.B. (“Victim”), but was the only father figure Victim knew, and
Victim referred to him as “daddy.” Appellant had lived with Victim and his
mother, and married Victim’s mother when they lived in California. Shortly
after Victim turned five, they all moved to Troy, Missouri, to live with
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Appellant’s parents. They eventually moved out of Appellant’s parents’
house, and moved into their own house in Eolia, Missouri. On June 22,
2013, when Victim was staying the night at his grandmother’s house, Victim
said to his grandmother, “Do you know what I hate?” When Victim’s
grandmother said she did not know, Victim said, “I hate it when daddy and I
have to put tongues in each other’s mouths.” When Victim’s grandmother
asked him what else happened between the two, Victim replied that they
took their clothes off, and pointed his finger at his anus and then up in the
air. This prompted Victim’s grandmother to call Victim’s mother and tell her
what Victim said.
Shortly thereafter, Victim’s mother told Appellant to pack his things and
move out of the house. About three to four weeks later, Victim’s mother and
grandmother decided to take Victim to see a child psychologist, who decided
to call the Division of Family Services (“DFS”) after listening to what
Victim told him. Sean Flynn (“Flynn”), a deputy with the Lincoln County
Sheriff’s Office received the hotline call, and met with Victim and Victim’s
mother at their home. They then set up a forensic interview.
Brittany Pursifull (“Pursifull”) conducted a Children's Advocacy Center
(CAC) interview with Victim. Victim told Pursifull that Appellant put his
hand in Victim’s bottom, and said he felt Appellant’s fingers and half of his
hand, describing that it felt like “a bear” and that it stung like a bee sting.
Victim also said that Appellant sucked on his “boobs” and his penis, that he
learned how to suck on Appellant’s penis by Appellant sucking on Victim’s
penis, which Victim referred to as “wiener” or “schneedle,” and that
Appellant gave him “sloppy kisses.” Victim described these events using
anatomical dolls. Victim also said this happened more than once, and that it
occurred when no one else was home. Because Victim had gotten tired
during the first interview, a second forensic interview was conducted.
Shandi Joubert-Kanz (“Kanz”) conducted the second CAC interview with
Victim. Kanz was asked to clarify the locations Victim spoke about in the
first interview. Victim told Kanz that his dad “put his hand in [Victim’s]
butt, put his mouth on Victim’s wiener, and that they had put their tongues
in each other’s mouths.” Victim said these events always took place “in the
same house,” but then said it happened in California and where they lived in
Troy. After Kanz took a break to talk to members of the MultiDisciplinary
Team, she asked Victim to describe his father’s room in California and the
house in Troy. When Kanz asked Victim if these things happened anywhere
else, he replied they did not and especially not in Eolia. However, when
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Kanz asked him if “sloppy kisses” happened in Eolia, Victim answered,
“No, only once.” He further explained that things happened in the bed of his
mom and dad’s bedroom, and described to Kanz the sheets and blanket on
Appellant was charged with one count of statutory sodomy for “putting his
mouth on [Victim’s] penis” and a second count of statutory sodomy for
“putting his hand in [Victim’s] buttocks.” After trial, jurors returned verdicts
finding Appellant guilty of two counts of first-degree statutory sodomy, and
Appellant was sentenced to two consecutive life sentences. This appeal
“A state prisoner who believes that he is incarcerated in violation of the
Constitution or laws of the United States may file a petition for writ of habeas
corpus in federal court pursuant to 28 U.S.C. § 2254.” Osborne v. Purkett, 411
F.3d 911, 914 (8th Cir. 2005). Federal habeas review exists only “as ‘a guard
against extreme malfunctions in the state criminal justice systems, not a substitute
for ordinary error correction through appeal.’ ” Woods v. Donald, 575 U.S. 312,
315 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03
(2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by the
AEDPA [the Antiterrorism and Effective Death Penalty Act] to exercise only
limited and deferential review of underlying state court decisions.” Lomholt v.
Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254). For a federal
court to grant an application for a writ of habeas corpus brought by a person in
custody by order of a state court, the petitioner must show that the state court's
adjudication on the merits:
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(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)(1)-(2). A determination of a factual issue made by a state
court is presumed to be correct unless the petitioner successfully rebuts the
presumption of correctness by clear and convincing evidence. Id. at § 2254(e)(1).
A state court's decision is “contrary to” clearly-established Supreme Court
precedent “if the state court either ‘applies a rule that contradicts the governing law
set forth in [Supreme Court] cases’ or ‘confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and nevertheless arrives at a result
different from [the] precedent.’ ” Penry v. Johnson, 532 U.S. 782, 792 (2001)
(citing Williams v. Taylor, 529 U.S. 362, 405–406 (2000)). An unreasonable
application of clearly established Supreme Court precedent occurs where the state
court identifies the correct governing legal principle but unreasonably applies that
principle to the facts of the case. Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.
2004). Finally, a state court decision may be considered an unreasonable
determination of the facts “only if it is shown that the state court's presumptively
correct factual findings do not enjoy support in the record.” Id.
Failure to raise a claim in a post-conviction appeal is an abandonment of a
claim. Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir. 1997). (cited case omitted). A
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state prisoner who “fails to follow applicable state procedural rules for raising the
claims is procedurally barred from raising them in a federal habeas action,
regardless of whether he has exhausted his state-court remedies.” Id. at 1151
(cleaned up) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). “[A]
prisoner must ‘fairly present’ not only the facts, but also the substance of his
federal habeas corpus claim.” Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996)
(en banc) (citation omitted). “[F]airly present” means that state prisoners are
“required to ‘refer to a specific federal constitutional right, a particular
constitutional provision, a federal constitutional case, or a state case raising a
pertinent federal constitutional issue.’ ” Id. at 411-12. A state-law claim raised in
state court that “is merely similar to the federal habeas claim is insufficient to
satisfy the fairly presented requirement.” Id. at 412.
If the petitioner failed to properly present the claim in state court, and no
adequate non-futile remedy is currently available by which he may bring the claim
in that forum, the claim is deemed procedurally defaulted and cannot be reviewed
by the federal habeas court “unless the [petitioner] 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; see also Martinez v. Ryan, 566
U.S. 1, 10-11 (2012).
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Petitioner asserts three grounds for relief in his habeas petition. In his first
ground, Petitioner claims the trial court misled
Petitioner and his attorney during the voir dire process in regard to potential
juror number nine, the trial judge’s brother in law, as to whether there was a
family history regarding sexual abuse, and as a result Petitioner’s attorney
failed to make a further record regarding juror number nine’s qualifications
and get juror number nine struck for cause which ultimately violated the
petitioner’s right to due process of law, the effective assistance of counsel,
and the right to a fair and impartial jury as guaranteed by the Fifth, Sixth and
In his second ground, petitioner claims
the trial court erred when it did not allow the defense to call its expert
witness, a certified safe examiner, to rebut the state’s evidence and present a
defense to the charges in violation of his right to due process of law and to
present witnesses in his defense as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution.
In his third ground, he claims that
Petitioner’s trial counsel was ineffective, in violation of his rights to due
process of law and the effective assistance of counsel as guaranteed by the
Fifth, Sixth and Fourteenth amendments to the United States Constitution,
when he did not make a sufficient offer of proof as to proffered defense
witness Jennifer Johnson because he never bothered to inform the trial court
that the state had already made physical evidence an issue in the case
through its witness, Shandi Joubert-Kanz, who testified that physical
evidence is only present in these types of cases less than three percent of the
Petitioner claims that the trial court misled him and his attorney during voir
dire about Juror # 9 having a family history of sexual abuse. Petitioner did not
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raise this claim on direct appeal. In his Rule 29.15 Motion, Petitioner did not raise
this issue as an ineffective assistance claim against trial counsel. The Missouri
Court of Appeals found that the trial error claim regarding the judge’s brother-inlaw was waived because it was a direct appeal claim, not a claim to be raised in a
Rule 29.15 motion, and it appeared for the first time in the appeal of the Rule 29.15
A petitioner may not allege “cause” excusing the default of a claim of trial
court error based on ineffective assistance of appellate counsel if he did not assert a
claim of ineffective assistance of appellate counsel for not raising the alleged trial
error claim. See Edwards v. Carpenter, 529 U.S. 446, 450–54 (1999); see also
Johnson v. Lewis, No. 1:18-CV-00193-ACL, 2020 WL 7770824, at *3 (E.D. Mo.
Dec. 30, 2020); Fields v. Roper, 448 F.Supp.2d 1113, 1117 (E.D. Mo. 2006).
Ground One is procedurally barred.
For his Ground Two, Petitioner claims the trial court erred when it did not
allow the defense to call its expert witness, a certified SAFE (Sexual Abuse
Forensic Examination) examiner, to rebut the state’s evidence and present a
defense to the charges in violation of his right to due process of law and to present
witnesses in his defense as guaranteed by the sixth and fourteenth amendments to
the united states constitution.
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The State Appellate Court discussed this issue in its Opinion:
The trial court precluded Johnson, a SAFE examiner, from testifying for the
defense after concluding her testimony would not have been relevant.
Appellant argued at trial that Johnson would not comment on the evidence,
but would have testified on what sort of things a victim should have
experienced if there had been penetration.
1. Standard of Review
A trial court typically has broad discretion in deciding whether to admit
evidence, and, as such, its decision will not be disturbed unless a clear abuse
of discretion is shown. State v. Berwald, 186 S.W.3d 349, 358 (Mo. App.
W.D. 2005). Discretion is abused when a ruling is clearly against the logic
of the circumstances and is so unreasonable as to indicate a lack of careful
consideration. State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007).
Additionally, this Court reviews the trial court for prejudice, not mere error,
and will reverse only if the error was so prejudicial that it deprived the
defendant of a fair trial. Id. Trial court error is not prejudicial unless there is
a reasonable probability that the court’s error affected the outcome of the
trial. Id. at 145-46.
Appellant argues the trial court abused its discretion in precluding Johnson’s
testimony, because when Kanz testified regarding the expectation of
physical findings of abuse, it opened the door for Appellant to offer evidence
in his defense on that issue. Appellant further contends that Johnson’s
testimony would have refuted the allegation that Appellant inserted half his
hand in Victim’s anus by testifying that pain or bleeding would reasonably
be expected to be present if such an allegation were true, which would be
relevant to the evidence presented at trial. The trial court noted that if there
had been a SAFE exam, Johnson would have been able to testify, but absent
such an examination, the court found Johnson’s testimony was irrelevant.
Appellant then made an offer of proof by putting Johnson on the stand.
An offer of proof must show three things: “(1) what the evidence will be; (2)
the purpose and object of the evidence, and (3) each fact essential to
establishing the admissibility of the evidence.” State v. Tisius, 92 S.W.3d
751, 767 (Mo. banc 2002). Where proffered evidence is excluded, relevancy
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and materiality must be shown by specific facts sufficient to establish
admissibility so as to preserve the matter for review. Id.
Appellant contends Johnson’s testimony was essential to Appellant’s
defense that no penetration occurred, but Appellant’s offer of proof did not
show Johnson’s testimony would be relevant to accomplish this. Johnson
testified that damage or injury may or may not occur from a finger or fingers
being inserted into a child’s anus. Johnson also testified that she did not
review any medical reports in this case, she did not review a SAFE exam,
and she did not meet with Victim in this case. Further, Johnson testified that
she could not have any first-hand knowledge of what would have occurred
without doing a SAFE exam or reviewing a SAFE exam. Although Johnson
reviewed the testimony Victim gave at trial and his statements made during
the forensic interviews, her medical opinion essentially was that there was
potential for there to be traumatic injury, as well as potential for there to be
no traumatic injury. This testimony does not come close to refuting the
allegation that Appellant penetrated Victim’s anus with his finger or fingers.
Johnson’s conclusion that there may or may not have been an injury does not
contribute to Appellant’s defense, the trial court did not abuse its discretion
in precluding her testimony. Appellant’s fourth point is denied.
The Missouri Appellate Court denied his claim, explaining that the
testimony was not logically and legally relevant. U.S. v. Scheffer, 523 U.S. 303,
309 (1998) (“[S]tate and federal rulemakers have broad latitude under the
Constitution to establish rules excluding evidence from criminal trials. Such rules
do not abridge an accused's right to present a defense so long as they are not
‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ”
(internal citations omitted)).
Because the Court of Appeals adjudicated his claim on the merits, Petitioner
cannot obtain habeas relief under § 2254(a) unless the decision was either
“contrary to, or involved an unreasonable application of, clearly established
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Federal law” under § 2254(d)(1), or “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding” under
§ 2254(d)(2). Petitioner argues this ruling violates Petitioner’s right to present a
defense. Petitioner further claims that he was unable to rebut the testimony of
Joubert-Katz that “[i]n general, the medical findings are less than 3 percent.”
The Court of Appeals affirmed the trial court's exclusion of the evidence
because Petitioner failed to establish its relevance to the case during his offer of
proof. In Missouri, evidence must be logically and legally relevant to be
admissible: “[e]vidence is logically relevant if it tends to make the existence of any
fact more or less probable than it would be without the evidence, or if it tends to
corroborate evidence which itself is relevant and bears on the principal of the
case,” and “[e]vidence is legally relevant if its probative value outweighs its costprejudice, confusion of issues, misleading the jury, undue delay, waste of time or
cumulativeness.” State v. Barriner, 111 S.W.3d 396, 400-01 (Mo. banc 2003).
The Appellate Court thoroughly discussed what testimony Johnson would
have given. She testified that damage or injury may or may not occur. She did not
perform a SAFE exam, and she did not meet with the victim in this case. She
could not have any first-hand knowledge of what would have occurred without
doing a SAFE exam or reviewing a SAFE exam. Her medical opinion was that
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there was potential for traumatic injury as well as potential for there to be no
The factual findings of the Court of Appeals are “presumptively correct” and
they also “enjoy support in the record.” See Ryan, 387 F.3d at 790. Nothing in
Petitioner’s petition or the state-court records suggests that the Court of Appeals’
ruling was “based on an unreasonable determination of the facts.” See §
2254(d)(2). Johnson’s testimony was neither definitive nor relevant because her
expertise was in performing SAFE exams and no SAFE exam was performed. She
essentially would have testified that there “could have been traumatic injury or
not.” This evidence would not be relevant to rebut the State’s expert testimony.
Petitioner now contends that Johnson should have been allowed to testify to
dispute the “3 percent” medical evidence. She has now submitted a Declaration
that she vehemently disputes that percentage. Aside from the fact that Petition has
just raised this argument for the first time, Petitioner fails to establish that even if
he would have presented this specific argument to the State Courts, he has not
overcome the relevance issue. Johnson is a SAFE examiner. Because there was no
SAFE exam performed by her or anyone else, her testimony, and thereby her
disagreement with the State expert was still not relevant to the case. There is
clearly no foundation for Johnson’s testimony.
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Petitioner’s third ground for relief, as Petitioner points out, is closely
intertwined with his second ground. Petitioner claims that counsel was ineffective
for failing to present a legally sufficient offer of proof. Petitioner challenges trial
counsel’s failure to inform Johnson that the state’s witness had already testified
that “medical findings are less than three percent” in these types of cases, and
failure to ask Johnson for her opinion regarding this statistic.
Once again, the Appellate Court found Johnson’s testimony not relevant to
the case. Her disagreement with the State’s expert accordingly would not have had
the proper foundation to be admissible. Because Johnson’s testimony regarding
possible traumatic injury or no traumatic injury, no examination of the victim, no
review of any medical records, was determined to be irrelevant, her disagreement
with the State’s expert would not have been properly before the jury. Petitioner
can establish no prejudice by counsel’s failure to inform her of the statistic and
failure to ask her opinion. Strickland.
To be entitled to post-conviction relief for ineffective assistance of counsel,
a movant must satisfy the two-prong Strickland v. Washington, 466 U.S. 668
(1984) test and show: “(1) that counsel's performance was deficient, in that he
failed to exercise the customary skill and diligence that a reasonably competent
attorney would perform under similar circumstances; and (2) that counsel's
deficient performance prejudiced Appellant's defense.” Robinson v. State, 497
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S.W.3d 298, 301 (Mo. App. E.D. 2016) (citing Strickland, 466 U.S. at 686; Deck v.
State, 68 S.W.3d 418, 425 (Mo. banc 2002)).
To meet the performance prong, a movant must “overcome the presumptions
that any challenged action was sound trial strategy, and counsel rendered adequate
assistance and made all significant decisions in the exercise of professional
judgment.” Id. To prove prejudice, a movant “must show a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different.” Id.
The Sixth Amendment guarantees a criminal defendant the right to effective
assistance of counsel. Strickland, 466 U.S. at 686. The Supreme Court set forth the
standard governing ineffective assistance of counsel claims in Strickland. To
establish ineffective assistance of counsel, a petitioner must show both that (1) his
counsel's performance was deficient, or that it “fell below an objective standard of
reasonableness,” and also that (2) “the deficient performance prejudiced the
defense.” Id. at 687-88. Strickland provides a “highly deferential” standard to
review ineffective assistance of counsel claims by having courts “apply a ‘strong
presumption’ that counsel's representation was within the ‘wide range’ of
reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104
(2011) (quoting Strickland, 466 U.S. at 689).
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On federal habeas review, the Court does not determine whether Petitioner's
counsel provided effective assistance, but instead “whether the state court's
application of the Strickland standard was unreasonable.” See Harrington, 562
U.S. at 101; see also Strickland, 466 U.S. at 689 (“Judicial scrutiny of counsel's
performance must be highly deferential. It is all too tempting for a defendant to
second-guess counsel's assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel's defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was unreasonable.”). “This
is different from asking whether defense counsel's performance fell below
Strickland’s standard.” Harrington, 562 U.S. at 101. Instead, the Court must
determine “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. at 105.
The Missouri Court of Appeals correctly identified Strickland as the
standard to apply regarding counsel’s offer of proof. That court's application of the
Strickland standard to this claim of ineffective assistance of trial counsel was not
unreasonable for the reasons stated by it. The Court of Appeals agreed that her
testimony was not relevant to the case for all of the reasons stated in the Opinion.
See Harrington, 562 U.S. at 101. Even if counsel had asked Johnson about the
statistic, she would not have been allowed to testify. Consequently, this ground for
relief must be denied.
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Certificate of Appealability
The Court finds Petitioner has not made a substantial showing of the denial
of a constitutional right, as is required before a certificate of appealability can
issue. 28 U.S.C. § 2253(c); see also Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997) (explaining that a “substantial showing” is a showing the “issues are
debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings”). Therefore, the Court will not issue a
certificate of appealability as to any claims raised in the § 2254 petition.
The Court denies Petitioner’s petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody. The Court will not issue a certificate
A separate judgment is entered this date.
Dated this 1st day of April, 2021.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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