Stewart v. Denney

Filing 11

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied; (2) the issuance of a certificate of appealability is denied; and (3) this case is dismissed with prejudice. Signed on June 13, 2013 by District Judge Beth Phillips. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LAWRENCE E. STEWART,

)
)
)
)
)
)
)
)
)

Petitioner,
vs.
LARRY DENNEY,
Respondent.

Case No. 12-1506-CV-W-BP-P

OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS AND DENYING A
CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center
in Cameron, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner challenges his 2008 conviction and sentence for distributing a controlled substance
within 1000 feet of public housing, which was entered in the Circuit Court of Saline County,
Missouri. Petitioner’s conviction was affirmed on direct appeal (Respondent’s Exhibit 6), and the
denial of his motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was upheld on
appeal thereof (Respondent’s Exhibit 11). Petitioner raises six (6) grounds for relief. Respondent
contends that Grounds 1, 4, 5, and 6 are procedurally defaulted and that Grounds 2 and 3 are without
merit.
FACTUAL BACKGROUND
In affirming petitioner’s convictions and sentences, the Missouri Court of Appeals, Western
District, set forth the following facts:
In the summer of 2007, Cheryl Wright contacted Saline County Deputy
Christopher Chamberlin, who worked with the North Central Missouri drug task
force, with an offer to provide assistance in exchange for favorable resolution of her
own pending criminal charges. Chamberlin had Wright contact Stewart. Wright
arranged to purchase crack cocaine from Stewart on September 3.

Wright met Stewart where he said he was staying, a duplex at 1317 South
Grant Street near College Circle in Marshall, and drove him to Vest Circle. On the
way, Wright gave Stewart the $50 she had previously received from police. When
they arrived at Vest Circle, Stewart told Wright to stay in the car while he exited. A
car drove up and stopped briefly. After the car left, Stewart returned and handed
Wright a baggie containing crack cocaine. Wright dropped Stewart off at the South
Grant Street address. She later gave law enforcement officers the baggie of crack
cocaine she had purchased from Stewart.
On September 9, Wright made a second controlled drug buy from Stewart.
Around 10:30 p.m., Wright was driven by her mother to the South Grant Street
address. She exited the car and knocked on Stewart’s door. Stewart answered the
door and invited Wright in. Wright saw several children in the apartment, but did not
see any adults. Stewart was on the telephone, trying, unsuccessfully, to contact a
third person to obtain some cocaine. Wright asked if he had any cocaine to sell.
Stewart then pulled some crack cocaine out of his pocket and handed it to Wright.
Wright gave him the money and left.
While Chamberlin watched the building, Deputy Dusty Brandt obtained a
search warrant. Chamberlin could see the front door of the residence but not the back
door. He saw Stewart go in and out several times. Around 1:00 a.m., the deputies
approached the apartment to execute the warrant. Before revealing themselves, a
vehicle pulled up to the apartment. Virginia Heard, the occupant of the vehicle, had
come to buy crack cocaine from Stewart. Stewart met Heard at her car, made a phone
call, and someone came by to give Heard the drugs. At that point, the deputies
announced their presence and took Stewart into custody
When the police executed the search warrant, they found a mattress on the
floor of the northwest bedroom, some male clothing, a denim jacket and a duffle bag
nearby. Inside the duffle bag, the police found a wallet containing Stewart’s
identification card and a number of prescription pill bottles with his name on them.
The pockets of the denim jacket contained a pair of tweezers encrusted with cocaine
residue and a marijuana smoking pipe with burnt marijuana residue inside.
Stewart was arrested and interrogated. He told Chamberlin that he did not
know anything about illegal drugs. He also denied that he lived at the South Grant
Street address, although he was unable or unwilling to provide officers with the
address at which he resided.
Stewart was charged with distribution of a controlled substance near public
housing pursuant to § 195.218, RSMo. The charge involved solely the September 9,
2007 sale of crack cocaine to Cheryl Wright. He was tried to a jury on August 13,
2008. At trial the Executive Director of the Marshall Housing Authority testified that
the apartment at 1317 South Grant Street is part of a government-assisted housing
project funded by the United State Department of Housing and Urban Development
(“HUD”). The jury found Stewart guilty of distributing crack cocaine within 1,000
feet of public housing. He was sentenced as a prior and persistent offender to a
twenty-five year term of imprisonment . . . .

2

Respondent’s Exhibit 6, pp. 2-3.
Before the state court findings may be set aside, a federal court must conclude that the state
court’s findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432
(1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d
1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner’s burden to establish
by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254
(e)(1).1 Because the state court’s findings of fact have fair support in the record and because
petitioner has failed to establish by clear and convincing evidence that the state court findings are
erroneous, the Court defers to and adopts those factual conclusions.
GROUND 1
In Ground 1, petitioner claims the trial court erred when it overruled defense counsel’s
objections and admitted evidence that petitioner sold crack cocaine on September 3, 2007. Doc. No.
1, p. 5. Respondent contends that plaintiff procedurally defaulted Ground 1 by failing to object at
trial and that, alternatively, Ground 1 is without merit. Doc. No. 9, pp. 7-11.
Because no objection had been raised at trial, the Missouri Court of Appeals, Western
District, reviewed Ground 1 for plain error and denied the claim as follows:
In his First Point Relied On, Stewart alleges that the trial court erred in
admitting evidence regarding the September 3, 2007 cocaine sale to Cheryl Wright,
and two cocaine sales to Virginia Heard on September 9, 2007. Stewart contends that
the evidence was neither logically nor legally relevant and its admission violated his
due process rights and his right to be tried only for the crime with which he was
charged. He argues that the evidence of uncharged crimes was relevant only to show
that he had a propensity to sell drugs, and lacked any other, legitimate probative
value.
....

1

In a proceeding instituted by an application for writ of habeas corpus by a person in custody
pursuant to a judgment of a State court, a determination of a factual issue made 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).
3

Since Stewart’s evidentiary challenge was not preserved, this issue may be
reviewed solely for plain error . . . .
The general rule concerning the admission of evidence of
uncharged crimes, wrongs, or acts is that evidence of prior uncharged
misconduct is inadmissible for the purpose of showing the propensity
of the defendant to commit such crimes. There are exceptions to the
rule. Evidence of prior misconduct of the defendant although not
admissible to show propensity, is admissible if the evidence is
logically relevant, in that it has some legitimate tendency to establish
directly the accused’s guilt of the charges for which he is on trial, and
if the evidence is legally relevant, in that its probative value
outweighs its prejudicial effect.
State v. Bernard, 849 S.W.2d 10, 13 (Mo. Banc 1993) (citations omitted). Notably,
Bernard emphasized that “[t]he balancing of the effect and value of evidence rests
within the sound discretion of the trial court.” Id.
Missouri courts have recognized that evidence of uncharged misconduct is
logically relevant when it tends to establish motive, intent, the absence of mistake or
accident, a common scheme or plan, or the identity of the perpetrator of the charged
offense. State v. Jackson, 228 S.W.3d 603, 606 (Mo. App. W.D. 2007); Bernard, 849
S.W.2d at 13. In addition, “evidence of uncharged misconduct may be admitted to
demonstrate defendant’s knowledge of particular facts, giving inference of
defendant’s awareness of his or her commission of the crimes charged.” State v.
Clover, 924 S.W.2d 853, 855 (Mo. banc 1996).
Stewart claims the evidence of the uncharged drug sales was inadmissible
because it showed his propensity to sell drugs, and lacked any other legitimate
probative value. He relies on four cases where evidence of prior drug transactions
and other uncharged misconduct was held inadmissible, and convictions reversed. . . .
Unlike the present case, however, it appears that in each of the cases Stewart cites, an
objection was made at trial to the admission of the other drug transactions.
Moreover, at least two of those cases recognize that evidence of prior drug
transactions may be admissible, depending on the other evidence presented, and the
line of defense a defendant pursues. . . . .
....
In this case, the record shows that Steward placed his knowledge of the
presence and nature of the cocaine at issue when he told the police that he had “no
knowledge of the presence of any illegal drugs.” The evidence of the prior drug sales
tended to disprove Stewart’s statement, since it showed that he had in fact sold drugs
to Wright and Heard on four occasions in the past week, including two other
occasions on September 9, 2007, itself. The evidence of Stewart’s uncharged drug
sales was also logically relevant because it exposed that he had lied to the police in
claiming ignorance of any illegal drug activity. An attempt to deceive the police by
making a false exculpatory statement shows a defendant’s consciousness of guilt.
State v. Farris, 125 S.W.2d 383, 388 (Mo. App. W.D. 2004).

4

The evidence of the other drug sales was also relevant to respond to Stewart’s
overarching trial theme: that drug dealers typically carry large amounts of cash, and
his emphasis of the fact that the police did not find large quantities of cash, drugs, or
drug paraphernalia at the 1317 South Grant apartment on executing the search
warrant, and that Wright did not observe such items in the apartment during the
charged transaction . . . .
In this case, the record shows that Stewart arranged the September 3, 2007
sale of cocaine from his apartment even though he took Wright elsewhere to pick up
the drugs. On September 9, 2007, Stewart arranged for Heard to purchase cocaine by
calling a third-party who delivered the drugs. As this evidence showed, Stewart
personally engaged in the drug business, and designed his operation so that he would
not have to keep a quantity of drugs or money on his person or concealed at his
residence. It was not unreasonable for the jury to infer that Stewart still arranged for
the sale of cocaine from his apartment even though no drugs or larger quantities of
money were found at the apartment during the police search.
In these circumstances, we believe that it was not plainly erroneous to admit
the challenged evidence as part of a “common scheme or plan.” “For the prior crimes
to be admissible under a common scheme or plan, it must show that the prior crimes
had ‘some relation to the general criminal enterprise,’” a condition that would appear
to be satisfied here. Bernard, 849 S.W.2d at 14 (citation omitted); see also, e.g., State
v. Frezzell, 251 S.W.3d 380, 384-85 (Mo. App. E.D. 2008).
....
The evidence of the uncharged drug sales, each of which occurred, at least in
part, at the 1317 South Grant Street apartment, also tended to show that Stewart was
operating a drug business from the apartment, and was not just a casual guest or
visitor. During the September 3, 2007 transaction, Stewart told Wright that he was
staying at the apartment, and was both picked up and dropped off there. Heard
testified that the 1317 South Grant Street duplex was Stewart’s “establishment.” Tr.
273. The jury could certainly infer from this evidence that Stewart was living at the
1317 South Grant Street address, operated a drug distribution business from the
address, and exercised control over the property. As we discuss infra § II, this
evidence is relevant to providing another essential element of the State’s case: that
Stewart knowingly sold cocaine within 1,000 feet of government-assisted housing.
For these reasons, we find that the uncharged crimes evidence was logically
relevant to show Stewart’s guilt of the charged offense.
The evidence of uncharged misconduct must also be legally relevant.
Whether the prejudicial effect of uncharged crimes evidence outweighs its probative
value, and is thus legally relevant, is a question left to the discretion of the trial court.
State v. Andrich, 943 S.W.2d 841, 844 (Mo. App. E.D. 1997). Given the number of
grounds on which the evidence was logically relevant, we cannot find plain error in
the trial court’s failure to exclude the evidence sua sponte on the grounds of legal
relevance.

5

In these circumstances, we cannot find that the trial court committed evident,
obvious and clear error by failing to intervene at trial to exclude evidence of the
uncharged September 3 and September 9, 2007 drug sales. Stewart’s first Point
Relied On is denied.
Respondent’s Exhibit 6, pp. 4-10 (footnotes omitted).
Where the Missouri Court of Appeals considers a claim for plain error, a federal court also
may review that claim for plain error. Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir. 2000), cert.
denied sub nom. Thomas v. Leubbers, 531 U.S. 967 (2000); Mack v. Caspari, 92 F.3d 637, 641 (8th
Cir. 1996), cert. denied, 520 U.S. 1109 (1997).

Under this standard, a federal court “will grant

habeas relief only if ‘manifest injustice resulted’ from the alleged errors.” Mack, 92 F.3d at 641.
See also Frey v. Leapley, 931 F.2d 1253, 1255 (8th Cir. 1991) (“the error must amount to ‘a
fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission
inconsistent with the rudimentary demands of fair procedure’”) (quoting Hill v. United States, 368
U.S. 424, 428 (1962)). Whether petitioner’s Ground 1 is reviewed only for plain error under the line
of cases represented by Mack, or is considered on its merits, it will be denied
State trial courts are afforded wide discretion with evidentiary rulings. “Questions regarding
admissibility of evidence are matters of state law, and they are reviewed in federal habeas inquiries
only to determine whether an alleged error infringes upon a specific constitutional protection or is so
prejudicial as to be a denial of due process.” Rousan v. Roper, 436 F.3d 951, 958 (8th Cir. 2006)
(citation and internal quotations omitted), cert. denied, 549 U.S. 835 (2006); see also Bell-Bey v.
Roper, 499 F.3d 752, 759 (8th Cir. 2007), cert. denied, 128 S. Ct. 2426 (2008).
“The exclusion [or admission] of [evidence] based on state evidentiary rules results in the
denial of due process only if there was an impropriety so egregious that it made the entire proceeding
fundamentally unfair.” Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007) (citation omitted),
cert. denied sub nom. Skillicorn v. Roper, 552 U.S. 923 (2007). “To meet this burden, a habeas

6

petitioner must show that ‘absent the alleged impropriety the verdict probably would have been
different.’” Id. (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) (rehearing denied)).
Petitioner fails to meet this standard. The Missouri Court of Appeals found that the trial
court did not err in admitting evidence of petitioner’s uncharged misconduct because the evidence
was relevant to disprove petitioner’s statements that he had no knowledge of the presence of illegal
drugs, to prove a common scheme or plan, and to show that petitioner was operating a drug business
from the apartment and was not a casual guest or visitor.

Respondent’s Exhibit 6, pp. 4-10.

Consequently, the record does not evince that the alleged errors were “so conspicuously bad that
[they] fatally infected the trial and rendered it fundamentally unfair.” Troupe v. Groose, 72 F.3d 75,
76 (8th Cir. 1995) (citing Anderson, 44 F.3d at 679); see also Clark v. Groose, 16 F.3d 960, 963-64
(8th Cir. 1994) (holding that the Missouri Court of Appeals did not violate petitioner’s due process
rights when it ruled that evidence of petitioner’s uncharged misconduct was relevant under the
circumstances in order to respond to the defense’s theory of the case). Because the state court’s
determinations were not based upon “unreasonable determination[s] of the facts in light of the
evidence” or misapplications of “clearly established Federal law,” 28 U.S.C. § 2254(d)(1) and (2),
Ground 1 will be denied.
GROUND 2
In Ground 2, petitioner contends that the trial court erred in overruling petitioner’s motion for
judgment of acquittal because the evidence did not prove beyond a reasonable doubt that he knew
that he was delivering crack cocaine within 1,000 feet of public housing or other government-assisted
housing. Doc. No. 1, pp. 9-10. The Missouri Court of Appeals, Western District, denied Ground 2
as follows:
In resolving such a sufficiency-of-the-evidence claim, “[t]he appellate court
must not act as a ‘super juror’ exercising veto power, but, rather, must give great
deference to the trier of fact.” State v. Donahue, 280 S.W.3d 700, 701 (Mo. App.
W.D. 2009) (en banc). Appellate review is limited to a determination of whether
there is sufficient evidence from which a reasonable juror might have found the

7

defendant guilty beyond a reasonable doubt. State v. Crawford, 68 S.W.3d 406, 408
(Mo. banc 2002). In applying this standard, the court accepts as true all the evidence
favorable to the State, including inferences drawn from the evidence, and disregards
all evidence and inferences to the contrary. Id. at 407-08.
In order to obtain a conviction for distribution of a controlled substance near
public housing, the State must prove beyond a reasonable doubt that: (1) the
defendant unlawfully distributed or delivered a controlled substance; (2) the
distribution or delivery took place within 1,000 feet of the public housing property or
other government-assisted housing; and (3) the defendant was aware of his proximity
to public or government-assisted housing at the time of the offense. § 195.218; State
v. Minner, 256 S.W.3d 92, 95 (Mo. banc 2008).
....
Missouri courts acknowledge that proof of knowledge or intent is generally
not susceptible to direct proof, absent a confession, and therefore a defendant’s guilty
knowledge is frequently proven by circumstantial evidence. See, e.g., State v.
Woods, 284 S.W.3d 630, 639 (Mo. App. W.D. 2009).
In this case, there was sufficient evidence to show that Stewart was living at
the apartment where he was selling the cocaine. When investigators searched the
apartment, they found a room that appeared to be where Stewart was staying. In the
room, they found a mattress, adult male clothes, a denim jacket and a duffel bag
containing Stewart’s I.D. and medications. The record would support a jury finding
that Stewart had represented to both Wright and Heard that he was staying at, and/or
operating from, the apartment. Merely because Stewart’s name was not on the lease
does not establish he was not living there. Indeed, there was evidence presented at
trial that frequently drug dealers register property in the names of family members to
conceal drug assets.
Stewart’s actions also suggested that he was in control of the property. When
Wright arrived at the residence around 10:30 p.m., Stewart invited her into the
apartment. The fact that Stewart conducted multiple drug deals at or from the
apartment, and was observed repeatedly entering and exiting the apartment and
apparently turning the front porch light on and off in order to obscure any observation
of who was entering and exiting the apartment or what was occurring on the front
porch, also supports the inference that Stewart was in control of, or shared control of,
the duplex.
The appearance of the property could also support the inference that Stewart
was aware of its status as public housing. At trial, Stewart’s counsel introduced into
evidence several photographs of the property, Defendant’s Exhibits A through E.
Although defense counsel sought to rely on the fact that these photographs did not
reveal any prominent signage identifying the property as public housing, the
prosecution argued that the appearance of a complex of uniformly designed duplexes,
in a neighborhood of detached homes of different colors, reflected that the housing
was publicly assisted. In this regard, we also note that Chamberlin described the
location where Wright was required to pick up Stewart for the September 3, 2007

8

transaction as “the east side of . . . the College Circle government housing project.”
Tr. 132. The Executive Director of the Marshall Housing Authority similarly agreed
that “the group of housing that is in that area, that is the College housing unit.” Tr.
211. This testimony suggests that the status of the development was well known.
It is also significant that the jury could reasonably have found that Stewart
lied about his connection to the property. Even though Stewart claimed that he did
not live at the apartment, he could not provide police with an alternate address for his
place of residence. As discussed above the jury could rely on Stewart’s false
exculpatory statements as evidence of his consciousness of guilty; we believe it
would be reasonable for the jury to extend this inference to conclude that Stewart
consciously sought to avoid having his criminal acts associated with the heightened
penalties applicable when such conduct occurs at or near public housing.
Stewart relies on State v. Minner, 256 S.W.3d 92 (Mo. banc 2008), to support
his argument . . . . Unlike the present case, however, in Minner there was apparently
nothing in the record to suggest that the defendant knew of the presence of a public
housing complex 427.5 feet from the location where a cocaine sale occurred, or had
any connection to the public housing complex. Id. The same could be said of our
own subsequent decision in State v. Calvert, 290 S.W.3d 189 (Mo. App. W.D. 2009),
where we vacated a conviction under §195.218, involving a drug sale which occurred
at the defendant’s home, more than 620 feet from the government-assisted housing.
In finding the evidence to be insufficient as to the defendant’s knowledge of the
nearby public housing, we noted that “[t]here was no evidence that [the defendant]
was familiar with the residents of the senior housing or that he had discussed the
nature of their leases.” Id. at 192. Here, the evidence would not merely support an
inference that Stewart “was familiar with the residents of the [government-assisted
housing]” – it suggests that he himself was such a resident. Further, he was related to
the lessee, with whom the jury could have found he resided.
There is no dispute that the duplex at 1317 South Grant Street was in fact
government-assisted housing. While we might tend to agree with the trial court that
there “isn’t the most clear-cut evidence that he knew that it was public housing,”
under our deferential standard of review we reject Stewart’s sufficiency-of-theevidence challenge. As a resident of the apartment, Stewart could reasonably be
expected to know that the apartment was public housing. The jury could reasonably
infer that Stewart was lying about living elsewhere. The jury also could have inferred
that Stewart avoided placing his name on the lease as a means of concealing his
whereabouts and drug-dealing activities. Accordingly, we find there was sufficient
evidence from which the jury could reasonably infer that Stewart knew that the
apartment where he lived and sold cocaine was public housing.
Respondent’s Exhibit 6, pp. 10-14.
A federal court, in reviewing a sufficiency of the evidence claim, must determine “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

9

Virginia, 443 U.S. 307, 319 (1979) (constitutional standard for judging sufficiency of the evidence in
criminal trials); Weston v. Dormire, 272 F.3d 1109, 1111 (8th Cir. 2001) (“In determining the
sufficiency of the evidence in habeas cases under 28 U.S.C. § 2254, we view the evidence in the light
most favorable to the prosecution and decide whether any rational jury could have found, beyond a
reasonable doubt, all of the elements of the crime.”). The fact finder is given latitude “to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson, 443 U.S. at 319; see also McDaniel v. Brown, 558 U.S. 120, 132-133
(2010).
The evidence in this case is sufficient to support petitioner’s convictions under the above
standards. The Missouri Court of Appeals determined that, viewing the evidence in the light most
favorable to the prosecution, a rational trier of fact could have found that petitioner knew that the
apartment where he sold cocaine was public housing because evidence suggested that petitioner
resided at the apartment and because the status of the development was well known. Respondent’s
Exhibit 6, pp. 10-14. Petitioner has failed to show that the Missouri Court of Appeals’ decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law” or that it was
“based on an unreasonable determination of the facts in light of the evidence presented” at trial. 28
U.S.C. § 2254(d)(1) and (2). Ground 2 will be denied.
GROUND 3
In Ground 3, petitioner asserts a claim of ineffective assistance of direct appeal counsel in
that counsel failed to allege on appeal that the venire panel was biased. Doc. No. 1, pp. 12-14. The
Missouri Court of Appeals, Western District, denied Ground 3 as follows:
Stewart contends that his appellate counsel was ineffective for failing to
assert a contention on direct appeal that the trial court erred by overruling defense
counsel’s objection to the venire panel. Specifically, Stewart claims that his right to a
fair trial was violated because the majority of the jury panel had a “predetermined
opinion” regarding his case that substantially impaired their ability to be fair and
impartial. He also maintains that a reasonably competent attorney would have raised

10

this claim and that there is a reasonable probability that his conviction would have
been reversed on appeal. We disagree.
The record shows that during voir dire, the prosecutor asked the venire panel
whether anyone disagreed with the proposition that “generally, [drug] sales occur
between people that know each other, and as a stranger . . . it’s unlikely that I could
walk in and buy crack cocaine or any other drug?” Defense counsel objected to the
question on the basis that it required expert testimony and “should not be stated as
such.” At that point, the court held a brief bench conference and determined that the
prosecutor could ask the question. The prosecutor then clarified, “I think what I
asked was . . . if a stranger knocked on a door to buy crack cocaine without any prior
association with that person or location.” Defense counsel then responded, “That . . .
sounds fine.” Upon returning to open court, the prosecutor asked the following to the
venire panel:
I think what I asked is, is there anybody [who] believes that
an individual could walk up to a door there or a location where
controlled substances are being sold and just knock on the door and
buy as if you were going to Wal-Mart, for example? Is there anybody
here that believes that – that an individual could just walk up to a
stranger in a strange place and buy illegal narcotics from there? If so,
please raise your paddle. And I don’t see anything.
During voir dire questioning by the defense, trial counsel asked the
following:
Defense Counsel: Is there anybody here that does not feel they can
listen to the evidence and know confidently right now they would be
able to listen to only that evidence to make their decision and render
a verdict today? I see there are no hands raised.
A few minutes later, defense counsel asked the following:
Defense Counsel: [The prosecutor] asked if anybody here believed
that a stranger could walk up to a house and purchase – with the intent
to purchase crack cocaine, and nobody here raised their hand. Is there
anybody here that believes that . . . a drug transaction could take
place, a stranger could walk up to a house with the intent of buying
drugs, and do that and not know the person who was selling it? Is
there anybody here who believes that could happen?
Venireperson No. 14: I do, but depending on the different
circumstances, depending on the different circumstances, depending
on where they were, the vicinity. If we’re talking in Missouri or
California or places like that, you’ve got to go on different
circumstances, because you don’t know the whole thing.
Defense Counsel: Okay.

11

Venireperson No. 14: We’re just dealing with this right here.
Defense Counsel: That’s correct.
Venireperson No. 14: We’re not dealing with out there.
Defense Counsel: That’s correct. So I really appreciate that, because
that is absolutely true. We are dealing with a crime that occurred or is
alleged to have occurred here in Saline County. And is there anybody
that believes a stranger could walk up to a house and purchase crack
cocaine here in Saline County? Yes?
Venireperson No. 19: I believe it’s possible, but not likely.
Defense Counsel: Okay. Is there anybody else? Yes.
Venireperson No. 34: I believe it probably could happen. I still
have big city values. We’ve only been here for three years, and we
came from Philadelphia.
Following voir dire, the court struck jurors Nos. 3, 4, 9, 10, 11, 25, 31, 34, 40,
41, and 47 for cause. The State exercised its preemptory strikes on jurors Nos. 1, 5,
6, 16, 19, and 27. Defense counsel exercised her preemptory strikes on jurors Nos. 8,
20, 21, 23, 28, and 29. The jury at trial was made up of jurors Nos. 2, 7, 12, 13, 14,
15, 17, 18, 22, 24, 26, and 30.
When the court asked if there were any other issues to discuss, defense
counsel responded by stating:
Your Honor, . . . although a little unusual, I would like to make the
general objection that there were only two – all jurors but two that
answered that they believed that in Saline County a stranger could
purchase drugs from a stranger in Saline County at a house. To me,
that seems like an opinion that has already been formed prior to
listening to the facts. It’s just a situation they don’t think would
occur. There were only two persons that stood up and at least
admitted that, although unlikely, it would depend on the
circumstances. And given the case, I feel that those jurors already
have a predetermined opinion as to . . . that and should not serve on
the jury.
For purposes of clarity, we note, as the State point out, that defense counsel
misstated to the trial court that, “all but two of the jurors answered that they believed
. . . that a stranger could purchase drugs from a stranger . . . at a house.” Stewart
repeats this misstatement in his brief. In fact, with the exception of three persons, no
one else on the venire panel even responded to the question. The three persons who
did respond indicated that they thought it was possible for someone to buy drugs
from a stranger. After both sides made their strikes for cause and preemptory strikes,

12

defense counsel told the court she wanted to make a “general objection.” . . . . The
trial court denied the objection.
Regarding the defense counsel’s objection to the venire panel, the motion
court made the following findings:
Trial counsel made no motion to strike for cause based upon
the jurors’ perceived misperception. After strikes for cause were
considered, the State and movant made their preemptive strikes. It
was only then that trial counsel made a general objection to the entire
panel, with two exceptions. The exceptions were not specifically
referred to by name or number. Counsel said her objection was only
“for the record.” . . . . No mention of the objection was made until
after the State made its preemptive challenges. Only then, having
discerned the State’s preferences, did counsel move to strike, in
essence, the entire panel. Dismissal of the entire panel is a dire
remedy. The Court finds that movant’s ill-timed motion to strike the
panel for cause, which would have necessitated a continuance of the
trial, is without merit. Had movant seriously considered the import of
the motion, a better record would have been made.
Finally, the motion court found that defense counsel’s objections lacked merit
because “the concept that a person could walk up to an unknown person or house and
buy crack cocaine without some prior knowledge borders on ludicrous.” The court
stated that “to conclude therefrom that the entire panel is biased against movant, or
that the panel so firmly holds a mistaken belief that they will not follow the
instructions of the Court, is totally without merit.” In denying his post-conviction
motion, the court concluded that Stewart’s claims failed to provide any grounds for
relief and that appellate counsel was not ineffective.
The motion court’s findings are presumed correct. Worthington v. State, 166
S.W.3d 566, 572 (Mo. banc 2005). Although Stewart now complains that appellate
counsel was ineffective for failing to argue on direct appeal that his right to a fair trial
was violated because the jury was biased against him, he presented no evidence at the
post-conviction hearing to support this allegation. At the evidentiary hearing,
Stewart’s trial counsel testified that she had objected to the jury panel and included
that claim in a motion for new trial. Stewart testified that he did not discuss the
omission of this claim with his appellate counsel. Stewart did not call his appellate
counsel as a witness at the hearing.
Missouri courts have held that when a movant claims ineffective assistance of
counsel but fails to call the attorney as a witness at the evidentiary hearing, the
movant fails to meet his burden of proving the allegations against his counsel. See,
e.g., Taylor v. State, 126 S.W.3d 755, 758-59 (Mo. banc 2004). A movant’s failure
to call his attorney as a witness at the evidentiary hearing constitutes a failure to
overcome the presumption that counsel made reasonably strategic decisions and
provided effective assistance. Id.

13

Stewart failed to call his appellate counsel as a witness at the evidentiary
hearing. Had Stewart called appellate counsel to testify at the evidentiary hearing,
counsel could have explained his reasons for not raising the alleged claim of error on
direct appeal. However, in view of the fact that Stewart failed to present the
testimony of his appellate counsel, or any other sufficient evidence to demonstrate
that counsel’s actions amounted to ineffectiveness, he has failed to support a finding
that his attorney’s actions fell outside the wide range of professionally competent
assistance. Thus, Stewart has failed to overcome the presumption that appellate
counsel provided effective representation.
Stewart’s argument also fails because he has not shown that appellate counsel
failed to act reasonably in deciding not to present this issue on appeal in favor of
stronger claims of error. Decisions by appellate counsel are presumed to have been
made in exercise of reasonable professional judgment. Johnson v. State, 283 S.W.3d
279, 283 (Mo. App. 2009). There is no duty for appellate counsel to raise every
possible claim alleged in a motion for new trial. Howell, 357 S.W.3d at 247. Nor is
there a duty to present non-frivolous issues where counsel strategically decides to
“winnow out” certain arguments in favor of others. Storey v. State, 175 S.w.3d 116,
148 (Mo banc 2005). “The process of winnowing out weaker arguments on appeal
and focusing on those more likely to prevail, far from being evidence of
incompetence, is the hallmark of effective appellate advocacy.” Howell, 357 S.W.3d
at 247 (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). In the absence of
contrary evidence, we must presume that appellate counsel reviewed all the claims
alleged in the motion for new trial and acted reasonably competent in determining
which issues to present on appeal. See Cole v. State, 223 S.W.3d 927, 931 (Mo. App.
2007).
Stewart also fails to show that he would have prevailed on appeal had this
claim been raised. Trial courts have wide discretion in determining the qualifications
of potential jurors. State v. Thomas, 70 S.W.3d 496, 507 (Mo. App. 2002). The
existence of bias or prejudice is a factual determination which turns largely on the
credibility and demeanor of the challenged juror. State v. Landers, 969, S.W.2d 808,
811 (Mo. App. 1998). The trial court is in a better position to determine whether the
jurors can fairly and impartially evaluate the evidence. Id.
....
The motion court correctly determined that Stewart’s claim would not have
prevailed had it been raised on direct appeal. The mere fact that the majority of the
jurors may have thought it unlikely that a person could knock on a stranger’s door
and demand crack cocaine does not translate into a preconceived opinion or bias that
would have precluded them from being qualified to serve on the jury. There was no
evidence to demonstrate that the jurors were unable to follow the trial court’s
instructions or consider the evidence fairly and impartially. Moreover, the record
shows that the jury panel answered affirmatively when asked by defense counsel
whether they could reach a verdict based solely on the evidence presented at trial.
We find nothing in the record to support the allegation that any perceived
opinion by jurors hampered their ability to fairly and impartially consider the

14

evidence. Consequently, even if appellate counsel had presented this claim on direct
appeal, it would not have prevailed. Appellate counsel was not ineffective for failing
to raise a non-meritorious claim. The motion court did not clearly err in denying
Stewart’s motion.
Respondent’s Exhibit 11, pp. 3-10 (footnotes omitted).
A claim of ineffective assistance of appellate counsel is subject to the same two-part test set
forth in Strickland v. Washington for claims of ineffective assistance of trial counsel. Harris v.
Missouri, 960 F.2d 738, 739 (8th Cir.) cert. denied 506 U.S. 921 (1992) (citing Strickland v.
Washington, 466 U.S. 668 (1984)). Consequently, in order to establish ineffective assistance of
appellate counsel, a petitioner “must show that appellate counsel’s performance fell below an
objective standard of reasonableness and that the deficient performance prejudiced his defense.”
Zinzer v. Iowa, 60 F.3d 1296, 1299 (8th Cir. 1995). To satisfy the prejudice prong, a petitioner must
“show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different.” Strickland, 466 U.S. at 694.
The Missouri Court of Appeals denied petitioner’s claim of ineffective assistance of direct
appeal counsel because, by not calling appellate counsel to testify, petitioner failed to overcome the
presumption that appellate counsel provided effective representation and because a claim that the
venire panel was bias would have been without merit. Respondent’s Exhibit 11, pp. 3-10. Because
the state court’s determination was not based upon an “unreasonable determination of the facts in
light of the evidence” or a misapplication of “clearly established Federal law,” 28 U.S.C. §
2254(d)(1) and (2), Ground 3 will be denied.
GROUNDS 4, 5, AND 6
In Grounds 4 and 6, petitioner asserts claims of ineffective assistance of trial counsel in that
counsel failed to investigate the sufficiency of the search and arrest warrant and failed to file motions
to quash the warrants and dismiss the complaint. Id. at 15, 20-23. In Ground 5, petitioner claims that
trial counsel was ineffective for failing to object to “faulty and erroneous jury instructions” and that

15

appellate counsel was ineffective for failing to raise the issue on direct appeal as plain error. Id. at
18-19. Respondent contends that petitioner procedurally defaulted Grounds 4-6 by failing to assert
them on post-conviction appeal. Doc. No. 9, pp. 2-4.
“A habeas petitioner is required to pursue all available avenues of relief in the state courts
before the federal courts will consider a claim.” Sloan, 54 F.3d at 1381. “If a petitioner fails to
exhaust state remedies and the court to which he should have presented his claim would now find it
procedurally barred, there is a procedural default.” Id.
Petitioner procedurally defaulted Grounds 4-6 by not asserting them on appeal from the
denial of his post-conviction motion. See Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997)
(recognizing that failure to present claims in the Missouri courts at any stage of direct appeal or postconviction proceedings is a procedural default), cert. denied, 523 U.S. 1010 (1998). A federal court
may not review procedurally defaulted claims “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 states that Grounds 4-6 were not raised on appeal from the denial of his postconviction motion because “counsel neglected or inadvertently failed to brief the grounds to the
Western District of Missouri, Court of Appeals.”

Doc. No. 1, p. 26. A claim of ineffective

assistance of post-conviction appellate counsel does not provide cause excusing procedural default.
Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012). Consequently, petitioner fails to establish
cause and prejudice for the procedural default of Grounds 4-6.
Petitioner also has failed to show that a fundamental miscarriage of justice will result if his
defaulted claims are not considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir.) (petitioner must
present new evidence that affirmatively demonstrates that he is actually innocent of the crime for

16

which he was convicted in order to fit within the fundamental miscarriage of justice exception), cert.
denied, 549 U.S. 1036 (2006). For the foregoing reasons, Grounds 4-6 will be denied.
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where a
petitioner has made a substantial showing of the denial of a constitutional right.” To satisfy this
standard, a petitioner must show that a “reasonable jurist” would find the district court ruling on the
constitutional claim(s) “debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276 (2004). Because
petitioner has not met this standard, a certificate of appealability will be denied. See 28 U.S.C. §
2254, Rule 11(a).
Accordingly, it is ORDERED that:
(1) the petition for writ of habeas corpus is denied;
(2) the issuance of a certificate of appealability is denied; and
(3) this case is dismissed with prejudice.

/s/ Beth Phillips
BETH PHILLIPS
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: June 13, 2013 .

17