Ross v. Denney

Filing 25

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied; (2) this case is dismissed with prejudice; and (3) a certificate of appealability is denied. Signed on May 1, 2015 by District Judge Ortrie D. Smith. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
WALTER ROSS,
Petitioner,
vs.
JAY CASSADY,
Respondent.

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Case No. 14-0778-CV-W-ODS-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, Walter Ross, filed this pro se habeas corpus petition pursuant to 28 U.S.C. '
2254 on August 29, 2014, seeking to challenge his 2008 convictions and sentences for robbery in
the first degree, armed criminal action, unlawful use of a weapon, and possession of a controlled
substance, which were entered in the Circuit Court of Nodaway County, Missouri.
Petitioner asserts three (3) grounds for relief: (1) the trial court erred in failing to grant
petitioner’s motion for acquittal at the close of evidence because there was insufficient evidence to
show that petitioner possessed a controlled substance; (2) the trial court erred in limiting
petitioner’s cross-examination of Ashley regarding her attempted suicide; and (3) ineffective
assistance of counsel for failing to make an adequate offer of proof. Doc. No. 1. Respondent
contends that Grounds 1 and 3 are without merit and that Ground 2 is procedurally barred. Doc.
No. 22.
FACTUAL BACKGROUND
On direct appeal, the Missouri Court of Appeals summarized the facts of the case:

In the light most favorable to the verdict, the evidence was that on
November 7, 2007, [petitioner] and Chasity Carter entered the Dollar General store

in Mound City, Missouri. [Petitioner] purchased a pack of gum with Carter
standing about a foot behind him at the cash register. At the conclusion of that
transaction, [petitioner] pointed a gun at the clerk and said, "Give me the money."
The clerk had trouble opening the cash register, so the manager came to her
assistance. The manager saw the gun, opened the cash register, and gave
[petitioner] the money. [Petitioner] and Carter left the store and ran toward an
alley, which led to the street behind the store. Waiting on the street was a red Jeep
Cherokee, license number 424 SJK, operated by Kimoni Russell and also
containing [petitioner]'s niece, Ashley Ross. [Petitioner] and Carter ran to the car,
entered, and left the scene.
A full description of [petitioner] and the Jeep, including the license number,
was provided to police by witnesses. Twenty five minutes after the robbery,
Missouri State Highway Patrol Trooper Adam Rice spotted the red Jeep with
license number 424 SJK. At that time, it was traveling north on I-29 while he was
traveling southbound on the same highway. Trooper Rice activated his lights and
sirens and made a U-turn in the median to pursue the Jeep. The Jeep travelled
approximately another mile before it finally stopped.
After the Jeep was spotted by the trooper but, before they stopped,
[petitioner] threw the gun used in the robbery out of the vehicle. [Petitioner] also
gave Ashley Ross a baggie containing Ecstasy pills. He told her, "Stuff the pills
before we all go to jail." She obliged by hiding the baggie of drugs in her vagina.
Eventually, all of the occupants of the car were arrested.
After a jury trial, [petitioner] was convicted and sentenced on four counts.
He received sentences of twenty years for robbery and ten years for armed criminal
action to be served consecutively. He also was sentenced to four years for
unlawful use of a weapon and two years for possession of a controlled substance,
with those sentences to be served concurrently with each other and with the other
sentences.
Respondent’s Exhibit E, pp. 1-2.
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 contends that the trial court erred in failing to grant his motion for
judgment of acquittal because the evidence was insufficient to show that petitioner possessed a
controlled substance. Doc. No. 1, p. 5. Specifically, petitioner claims that the pills actually
belonged to Kimoni Russell and that petitioner only momentarily touched the pills when he tossed
them to Ashley. Doc. No. 15, pp. 5, 9-12.
A federal habeas court may not overturn a state court decision regarding a sufficiency of
the evidence challenge simply because it disagrees with the state court; a federal court may only
overturn the decision if it was “objectively unreasonable.” Cavazos v. Smith, 132 S. Ct. 2, 3
(2011). The Missouri Court of Appeals, Western District, denied petitioner’s claim as follows:

In the case at bar, the State produced direct evidence of [petitioner]'s actual
possession of the baggie of Ecstasy pills. At trial, Ashley Ross acknowledged that
she had given the police a written statement, stating that her uncle handed her the
pills. She testified at trial that her uncle told her, "Stuff the pills before we all go to
jail." This evidence of actual possession, however fleeting, taken together with his
statement is decisive, if not dispositive, to [petitioner]’s point because [petitioner]
is exercising control over the drugs. Section 195.202.1, RSMo 2000, specifies that
"it is unlawful for any person to possess or have under his control a controlled
substance." Section 195.010(34), RSMo Cum. Supp. 2008, declares that, to
possess a controlled substance, a person must have knowledge of the presence and
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 Aclear and convincing evidence.@ 28 U.S.C. ' 2254(e)(1).

nature of the substance and have actual or constructive possession of it. The
statute provides, "A person has actual possession if he has the substance on his
person or within easy reach and convenient control." Thus, an exercise of control
over the drugs is relevant to a determination of possession of the drugs. If that
exercise of control is also an attempt to hide or dispose of the drugs before
detection, it may also demonstrate knowledge that possession was unlawful,
inferring knowledge of the nature of the drugs. Here [petitioner]'s conduct and
statement is both.
....
In the case at bar, [petitioner] does not contend that he did not know the
contents of the baggie, so we only concern ourselves with the sufficiency of the
evidence of possession. As stated above, Ashley Ross acknowledged that she had
given a statement to the police that [petitioner] handed her the drugs; thus,
[petitioner] had actual possession. [Petitioner] argues that that is somehow
insufficient because his possession was so transitory. We find relying on [State v.
Webster, 754 S.W.2d 12 (Mo. App. 1988)], [State v. Camerer, 29 S.W.3d 422 (Mo.
App. 2000)], [State v. McLane, 136 S.W.3d 170 (Mo. App. 2004)], and [State v.
Belton, 108 S.W.3d 171 (Mo. App. 2003)], supra at pp. 4-6, that his possession,
although fleeting, when coupled with his statement to his niece to conceal the drugs
before they were detected, is sufficient evidence for a reasonable juror to find
beyond a reasonable doubt that [petitioner] had actual possession of the baggie of
Ecstasy. The only distinctions that can be drawn between the cited cases and the
case at bar is that the witnesses in the cited cases were police officers, while here
the witness was [petitioner]'s niece, a passenger in the car, and that, instead of
throwing the drugs from the car, [petitioner] directed his niece to conceal them to
avoid detection. These distinctions are of no consequence. Point I is denied.
Respondent’s Exhibit E, pp. 3-6 (internal footnotes omitted).
The Missouri Court of Appeals’ resolution of petitioner’s claim was not based on an
unreasonable determination of the facts or on a misapplication of federal constitutional law. See
28 U.S.C. 2254(d)(1) and (2); Jackson v. Virginia, 443 U.S. 307, 319 (1979) (constitutional
standard for judging sufficiency of the evidence is “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”). “In applying this standard, ‘[t]he scope of our review
for a collateral challenge to the sufficiency of the state’s evidence is extremely limited . . . We must

presume that the trier of fact resolved all conflicting inferences in the record in favor of the state,
and we must defer to that conclusion.’” Sexton v. Kemna, 278 F.3d 808, 814 (8th Cir. 2002)
(citing Miller v. Leapley, 34 F.3d 582, 585 (8th Cir. 1994)), cert. denied, 537 U.S. 886 (2002).
Here, the Missouri Court of Appeals held that, under Missouri law, the element of
possession only requires that a defendant have momentary possession of a controlled substance.
Resp. Ex. E, p. 6. This Court defers to the Missouri Court of Appeals on the proper interpretation
of state law. Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir. 1994) (habeas court not authorized
to re-examine state court’s determination of state law). Because the appellate court’s ruling did
not result 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”2 or in “a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” see 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 by overruling his objection to
the State’s cross-examination of petitioner about pornography found in his house. Doc. No. 1,
p. 8.

Respondent contends that Ground 2 is procedurally barred because petitioner failed to

make an adequate offer of proof.

Doc. No. 22, pp. 11-12. In reviewing petitioner’s Ground 2,

the Missouri Court of Appeals, Western District, stated:
2

According to the concurrence of Justice O’Connor, joined by four other members of the
Court, “under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if
the state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000).

"If an objection to the proffered evidence is sustained, the proponent must
then make an offer of proof in order to preserve the record for appeal and to allow
the trial court to consider further the claim of admissibility." State v. Yole, 136
S.W.3d 175, 178 (Mo. App. 2004). An offer of proof must demonstrate 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. Hirt, 16 S.W.3d 628, 633 (Mo. App. 2000). An offer of proof fulfills two
objectives:
(1) it "preserve[s] the record for appeal so the appellate court
understands the scope and effect of the questions and proposed
answers in considering whether the trial judge's ruling was proper,"
and (2) it allows "the trial judge to further consider the claim of
admissibility" after having ruled the evidence inadmissible[.]
State v. Bouser, 17 S.W.3d 130, 141 (Mo. App. 1999) (quoting Evans v. Wal-Mart
Stores, Inc., 976 S.W.2d 582, 584 (Mo. App. 1998)).
Here, [petitioner] quite rightly did not rely on a summary of anticipated
testimony but had the witness take the stand and answer specific questions under
oath. However, after [petitioner] elicited the proffered testimony, he did not
address the offer further. He made no attempt to explain to the circuit court the
purpose and object of the proffered testimony or attempt to address the
admissibility of the proffered testimony. The immediate goal of the offer of proof
is to educate the trial judge as to the admissibility of the proffered testimony.
Merely identifying the testimony is insufficient. [Petitioner] failed to show the
purpose and object of the proffered evidence and failed to advance any argument as
to the relevancy and admissibility of that testimony. Therefore, [petitioner] failed
to present a proper offer of proof and has not preserved this matter for appellate
review.
Respondent’s Exhibit E, pp. 7-8 (internal footnotes omitted).
AA habeas petitioner is required to pursue all available avenues of relief in the state courts
before the federal courts will consider a claim.@ Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir.
1995), cert. denied, 516 U.S. 1056 (1996). “[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State's
established appellate review process” before presenting those issues in an application for habeas
relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). AIf 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.@ Sloan, 54 F.3d at 1381.
Petitioner failed to make an adequate offer of proof of Ground 2, and the state appellate
court, therefore, declined to review it. As such, Ground 2 is procedurally defaulted. Lee v.
Kemna, 534 U.S. 362, 375-76 (2002) (recognizing that the requirement of an adequate offer of
proof is an independent and adequate state procedural ground that bars federal habeas review of a
claim).
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 claim will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner fails to assert cause for
his procedural default, and fails also to show that a fundamental miscarriage of justice will result
if his defaulted claim is not considered.
To the extent that petitioner is asserting ineffective assistance of trial counsel as cause to
excuse his procedural default (Ground 3), “[i]n order for ineffective assistance of counsel to itself
be cause to excuse a procedural default, the ineffective assistance must rise to the level of an
independent constitutional violation.” Evans v. Luebbers, 371 F.3d 438, 445 (8th Cir. 2004)
(citing Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Because this Court finds that
petitioner’s Ground 3 fails to state a claim for ineffective assistance of counsel, and because
petitioner fails to assert any alternate cause to excuse his default, Ground 2 will be denied.
GROUND 3
In Ground 3, petitioner contends that he received ineffective assistance of counsel because

counsel failed to make an adequate offer of proof. Doc. No. 1, p. 15. Specifically, he contends
that if his trial counsel had made a proper and complete offer of proof regarding the admissibility
and relevancy of Ashley Ross’s suicide attempt, then there is a reasonable probability that the
circuit court would have allowed the testimony and the result of the trial would have been
different. Def. Ex. J, p. 2.
In order for petitioner to successfully assert a claim for ineffective assistance of counsel,
petitioner must demonstrate that his attorney=s performance Afell below an objective standard of
reasonableness@ and that Athe deficient performance@ actually prejudiced him.

Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). This Court may not grant habeas relief unless the
state appellate court’s decision Awas contrary to, or an unreasonable application of, the standard
articulated by the [United States] Supreme Court in Strickland.@ Owens v. Dormire, 198 F.3d
679, 681 (8th Cir. 1999), cert. denied, 530 U.S. 1265 (2000).
AA court considering a claim of ineffective assistance of counsel must apply a >strong
presumption= that counsel=s representation was within the >wide range= of reasonable professional
assistance.@ Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (quoting Strickland, 466 U.S. at
689).

Petitioner must show Athat counsel made errors so serious that counsel was not

functioning as the >counsel= guaranteed the defendant by the Sixth Amendment.@ Strickland,
466 U.S. at 687.
The Missouri Court of Appeals, Western District, found that the motion court’s judgment
was supported by the record:
Although this Court found in [petitioner]’s direct appeal that [petitioner]’s
trial counsel failed to present a proper offer of proof regarding the purpose and
object of Ashley Ross’s testimony concerning her suicide attempt, and, therefore,
did not preserve the issue for appellate review, such a conclusion does not prove

that counsel was ineffective. See State v. Ross, 292 S.W.3d 521, 526 (Mo. App.
2006). Counsel’s failure to preserve an issue on appeal is not a cognizable ground
for granting post-conviction relief on a claim of ineffective assistance of counsel.
Dickerson v. State, 269 S.W.3d 889, 893 n3 (Mo. banc 2008). To prevail on a
claim of ineffectiveness, [petitioner] must show that counsel’s failure denied him a
fair trial. Id. In [petitioner]’s direct appeal, we noted that the attempted offer of
proof regarding Ashley Ross’s suicide attempt was made after [petitioner] had
already cross-examined and recross-examined her and that the suicide attempt
information “could and should have been covered in his cross-examination or his
recross-examination of the witness.” Ross, 292 S.W.3d at 527. Under the factual
circumstances, we concluded that “this new area of inquiry was beyond the scope
of the witness’s previous direct and cross-examination” and the “circuit court was
well within its discretion to disallow any further inquiry of the witness.” Id.
Although we note that counsel indicated to the court at the time counsel attempted
to introduce the information that counsel had just learned the information, given
our previous conclusion, the proper inquiry here is whether counsel’s failure to
cross-examine Ashley Ross regarding her suicide attempt constituted deficient
performance and, if so, whether Ross was prejudiced thereby. While the result
here is inevitably the same, the distinction tailors the focus of our inquiry.
....
First, “a simple failure to impeach a witness does not warrant
post-conviction relief.” Midgyett v. State, 392 S.W.3d 8, 18 (Mo. App. 2012)
(internal quotation and citation omitted). “Movant must show that had the witness
been impeached, it would have provided him with a defense or changed the
outcome of the trial.” Id. While we recognize that Ashley Ross’s testimony was
impeached in other areas, as [petitioner] contends that the suicide evidence by itself
would have changed the result of his trial, we focus on whether this specific
evidence would have, in fact, done so or provided [petitioner] with a defense at
trial. We find that Ross fails to prove either.
Although counsel failed to explain the object and purpose of Ashley Ross’s
proposed testimony or address its admissibility in counsel’s attempted offer of
proof, thereby failing to preserve it for review, counsel did have Ashley Ross testify
as to what her testimony would be with regard to the suicide attempt. The record
indicates that she stated that approximately one week after being placed in jail, she
“was shocked from being in jail,” was “scared,” and drank a bottle of cough syrup
in an attempt to commit suicide. She stated that she had received no mental health
counseling prior to that attempt, and received none after. This is the extent of the
evidence that [petitioner] claims counsel’s failure to introduce prejudiced him by.
Ashley Ross was very clear that her suicide attempt was precipitated by shock from
her being in jail. [Petitioner] argues that this suggests that Ashley Ross had a
motive to testify against [petitioner] and implicate [petitioner] – so that she could

get out of jail.
It appears from the record that the most damaging evidence at trial that
came from Ashley Ross was the statement she made to police the very day of the
Dollar General Store robbery. It was in that statement that she told police that
[petitioner] gave her the drugs and told her to hide them. As these damaging
statements were made contemporaneous with her arrest and prior to any
significant jail time, if any jail time at all at that point, the record does not support
an inference that shock from jail gave Ashley Ross the motivation to falsify
statements “to procure a deal that guaranteed her probation.” Ashley Ross’s
initial trial testimony did not implicate [petitioner] at all. At trial, Ashley Ross
testified that the pills did not belong to [petitioner], that they belonged to Kimoni
Russell, that Kimoni Russell had the pills in his pocket and ultimately threw them
into the back seat. Ashley Ross testified that [petitioner] never had the pills in his
hands. It was only after Ashley Ross was impeached by the State with her
previous statement to police that she admitted that she had previously stated to
police that [petitioner] handed her the drugs. [Petitioner] admits in his brief on
appeal that the State had to impeach Ashley Ross’s trial testimony with these prior
inconsistent statements in order to connect [petitioner] to the drugs. Thus, as the
most damaging statements made by Ashley Ross were made contemporaneous with
her arrest, the record does not support an inference that shock from being in jail
influenced these statements, much less prove the bias that [petitioner] alleges.
....
Therefore, given the record, we cannot conclude that counsel failed to
exercise the skill and diligence of a reasonably competent attorney by failing to
cross-examine Ashley Ross regarding her attempted suicide or enter a proper offer
of proof regarding the proposed evidence and, even if counsel did, there is no
reasonable probability that the evidence would have aided [petitioner]s defense and
changed the result of his proceeding. Point denied.
Respondent’s Exhibit J, pp. 6-10 (internal footnotes omitted).
The decision of the Missouri Court of Appeals is reasonable and therefore is entitled to
deference under § 2254(d).

The determination that trial counsel’s performance did not amount

to ineffective assistance of counsel was not “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 in “a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding,” see 28 U.S.C.
§2254(d)(1) and (2). As such, the state court’s decision is entitled to deference and Ground 3
will be denied.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. ' 2253(c), the Court may issue a certificate of appealability only Awhere
a petitioner has made a substantial showing of the denial of a constitutional right.@ To satisfy
this standard, a petitioner must show that a Areasonable jurist@ would find the district court ruling
on the constitutional claim(s) Adebatable 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) this case is dismissed with prejudice; and
(3) a certificate of appealability is denied.

/s/ Ortrie D. Smith
ORTRIE D. SMITH
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: May 1, 2015.