Brinson v. Pash

Filing 15

ORDER: ORDERED that Petitioner has failed to state claims that warrant federal habeas corpus relief. Therefore, this petition for a writ of habeas corpus is denied, and this case is dismissed. Finally, pursuant to Rule 11 of the Rules Governing Sec tion 2254 Cases, the Court must issue or deny a certificate of appealability when it enters a final order adverse to Petitioner. "A certificate of appealability may be issued "only if [Petitioner] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has made no such showing, and the Court declines to issue a certificate of appealability. Signed on March 21, 2016 by District Judge Howard F. Sachs. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JOHN L. BRINSON, JR.,

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Petitioner,
vs.
RONDA PASH,
Respondent.

Case No.

15-0150-CV-W-HFS-P

O R D E R
Petitioner is incarcerated by the State of Missouri at the
Crossroads Correctional Center.

He filed this case pro se, seeking

habeas corpus relief pursuant to 28 U.S.C. ' 2254 from his conviction
by a jury in the Circuit Court of Clay County, Missouri, for murder
in the first degree.

The victim was Petitioner’s wife.

Missouri Court of Appeals affirmed Petitioner’s conviction and
the denial of his motion for post-conviction relief.

Docs. 12-16

and 12-19 (unpublished opinions).
The Missouri Court of Appeals summarized the facts as follows:
In 1996, Brinson moved to Kansas City to join
the Kansas City Water Service Department. His wife
and their children remained in Iowa. While Brinson
was alone in Kansas City, he had an affair. A year
later, the victim and their children joined Brinson
in Kansas City.
For the next several
years, Brinson's
relationship with the victim deteriorated. They
argued constantly and many of their arguments
resulted in physical altercations. In 2001, the
victim started having an affair with another man.
Brinson found out about the affair and, on one
occasion, rammed his vehicle into the man's car and
attempted to punch through his windshield.

On July 15, 2002, Brinson and the victim drove
with one of their sons to help him jump start his
car. Brinson and the victim arrived back at their
apartment building at approximately 10:00 p.m. They
told their son to go inside the apartment and that
they would join him later. Around this time, some
building tenants heard the sound of gunfire.
The next morning, the victim did not show up
to work. Later that day, the police were dispatched
to the intersection of 24th Street and Topping. At
this intersection, the police found the victim's
vehicle. She was not in the car, but the police did
see a large quantity of blood. The police called
Brinson and he came to the scene. He identified the
vehicle as his wife's. He also mentioned that she was
having an affair with another man.
Over the next few days, the police continued
their investigation. They found mud all over the
car, which they considered unusual because it had
been a very dry summer. They also found some plant
life and brush stuck under the vehicle. The police
conducted tests on the mud and discovered the
existence of single-celled organisms, which live
only in freshwater sources. Based on these factors,
the police surmised that the victim had been killed
and her body dumped somewhere in the Missouri River.
The police also found Brinson's handprint on
the trunk of the victim's car. Based on the placement
of this handprint, the police concluded that Brinson
must have had mud and blood on his hand when he left
it. The police also obtained fingernail samples from
Brinson and discovered the existence of the same
single-cell organisms that were present in the mud
on the victim's car. Based on this evidence, the
police arrested Brinson for the victim's murder.
The victim's body was never recovered.
Doc. 12-19, pp. 4-5.
Petitioner lists four grounds for federal relief.

First,

Petitioner claims that he was denied effective assistance of

trial counsel because his attorney did not “pursu[e] independent DNA
testing on areas of apparent blood.”
court-approved forms).

Doc. 4, p. 5 (petition on

Second, Petitioner claims that he was denied

effective assistance counsel on direct appeal because his attorney
“conced[ed] . . . Brinson’s guilt to murdering Marilyn Brinson.”
Id. at 6.
“Before seeking federal relief under § 2254, a petitioner
ordinarily must fairly present the federal claim to the state courts.
By exhausting all available state court remedies, [a petitioner] gives
a state the opportunity to pass upon and correct alleged violations
of . . . federal rights.”

Murphy v. King, 652 F.3d 845, 848-49

(8th Cir. 2011) (citations and quotation marks omitted), cert. denied,
___ U.S. ___, 132 S.Ct. 1596 (2012).

“If a petitioner has not

presented his habeas corpus claim to the [appropriate] state court,
the claim is generally defaulted.”

Id.

Petitioner defaulted his first and second grounds for relief
by not presenting those claims to the Circuit Court of Clay County,
see Doc. 12-12, pp. 30-42 (amended motion for post-conviction relief
pursuant to Missouri Supreme Court Rule 29.15), or to the Missouri
Court of Appeals on appeal from the denial of post-conviction relief,
see Doc. 12-14, pp. 21-23 (brief).

See also Wemark v. Iowa, 322 F.3d

1018, 1020-21 (8th Cir.) (federal habeas claim that was not raised
in the appropriate state court based on the “same factual grounds
and legal theories” was procedurally defaulted), cert. denied, 540

U.S. 870 (2003).
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 v. Thompson, 501 U.S.

722, 750 (1991).
Petitioner’s reply to the State’s response does not track the
grounds for relief Petitioner listed in his petition.

Compare

Doc. 4, pp. 5-6 (petition on court-approved forms) with Doc. 14
(reply).1

Based on the record, the Court finds that Petitioner has

failed to demonstrate cause for his default.

The Court also finds

that Petitioner has failed to demonstrate that a fundamental
miscarriage of justice will occur if the Court declines to consider
the merits of the defaulted claims.

See Doc. 14 (reply); Bowman v.

Gammon, 85 F.3d 1339, 1346 (8th Cir. 1996) (in order to demonstrate
that a failure to consider defaulted claims will result in a
fundamental miscarriage of justice, habeas petitioner must show that
he is “probably actually innocent” of the crime for which he was
1

Although Grounds 1 and 2 of the original petition here show
Petitioner's current intention to use the issues he now emphasizes
(Doc. 4), when the State pointed out that they were not in the 29.15
proceeding (Doc. 12), Petitioner's reply (or traverse) fails to claim
or demonstrate that the points were presented to the State court in
the 29.15 proceeding.

convicted) (citation omitted), cert. denied, 520 U.S. 1128 (1997).
Therefore, the Court may not consider the merits of Petitioner’s first
and second grounds for relief, both involving the performance of
counsel.
As his third ground for relief, Petitioner wrote:
was raised on post conviction motion.”
court-approved forms).

“This ground

Doc. 4, p. 8 (petition on

Having carefully reviewed the original

petition (Doc. 1), an exhibit filed along with the petition on
court-approved forms that consists of 55 pages of papers that
Petitioner filed in the state courts (Doc. 4-1), and a memorandum
(Doc. 5), the Court discerns no error on the part of the state courts
in resolving Petitioner’s claims.
As his fourth and final ground for relief, Petitioner claims
“actual innocence.”
forms).

Doc. 4, p. 9 (petition on court-approved

In Dansby v. Hobbs, 765 F.3d 809, 816 (8th Cir. 2014),

cert. denied, ___ U.S. ___, 135 S.Ct. 1733 (2015), the Court
summarized the law applicable to Petitioner’s actual-innocence
claim:
The Supreme Court has not decided whether a
persuasive demonstration of actual innocence after
trial would render unconstitutional a conviction
and
sentence
that
is
otherwise
free
of
constitutional error. The Court has established,
however, that the threshold for any such
freestanding claim, if it were recognized, would be
extraordinarily high. The threshold, if it exists,
would require more convincing proof than the gateway
standard that allows for consideration of otherwise
defaulted constitutional claims upon a showing of

actual innocence. Thus, on a freestanding claim of
actual innocence, it is not sufficient that a
petitioner shows even that it is more likely than
not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt. The
extraordinarily high threshold, if recognized,
would be even higher.
(citations

and

quotation

marks

omitted).

It

is

clear

that

Petitioner has not satisfied the standard explained in Dansby.
For the reasons explained above, Petitioner has failed to state
claims that warrant federal habeas corpus relief.

Therefore, this

petition for a writ of habeas corpus is denied, and this case is
dismissed.

Finally, pursuant to Rule 11 of the Rules Governing

Section 2254 Cases, the Court must issue or deny a certificate of
appealability when it enters a final order adverse to Petitioner.
“A certificate of appealability may be issued “only if [Petitioner]
has made a substantial showing of the denial of a constitutional
right.”

28 U.S.C. § 2253(c)(2).

Petitioner has made no such

showing,

and

to

the

Court

declines

issue

a

certificate

of

appealability.
So ORDERED.

/s/ Howard F. Sachs
HOWARD F. SACHS
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: March 21, 2016.