Briggs v. Pash

Filing 26

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 February 23, 2016 by District Judge Ortrie D. Smith. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DAVID N. BRIGGS,
Petitioner,
vs.
RONDA PASH,
Respondent.

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Case No. 15-0422-CV-W-ODS-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, who is currently confined at the Crossroads Correctional Center in Cameron,
Missouri, has filed pro se a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner seeks to challenge his 2009 convictions and sentences for murder in the first degree,
robbery in the first degree, and two counts of armed criminal action, which were entered in the
Circuit Court of Jackson County, Missouri.
Petitioner asserts nine (9) grounds for relief: (1) that the trial court erred in denying
petitioner’s request for the opportunity to obtain private counsel; (2) that trial counsel was
ineffective for failing to request that the trial court instruct the jury on the lesser-included offense
of voluntary manslaughter; (3) that trial counsel was ineffective for failing to adduce evidence of
petitioner’s mental state at the time of the offense; (4) that trial counsel was ineffective for
failing to investigate whether petitioner suffered from “intermittent explosive disorder”; (5) that
trial counsel was ineffective for failing to “inject, during petitioner’s testimony[,]” the issues of
“sudden passion” and “adequate cause”; (6) that trial counsel was ineffective for allowing the
trial court to determine the jury instructions prior to all the evidence being adduced at trial; (7)
that trial counsel was ineffective for deposing Detective Hernandez four days before trial, and

then failing to adequately cross-examine Detective Hernandez at trial; (8) that trial counsel was
ineffective for failing to prepare and put on an adequate defense; and (9) that appellate counsel
was ineffective for failing to raise meritorious claims that were preserved for appeal.
Grounds 1 and 2 are without merit and Grounds 3, 4, 5, 6, 7, 8, and 9 are procedurally
barred.
FACTUAL BACKGROUND
On appeal from the denial of petitioner’s amended Rule 29.15 post-conviction relief
motion, the Missouri Court of Appeals, Western District, summarized the facts of the case:
Briggs was arrested and charged with one count of first-degree murder (§
565.020, RSMo), one count of first-degree robbery (§ 569.020), and two counts of
armed criminal action (§ 571.015), in connection with the January 24, 2008,
robbery and murder of a fifty-one year old man.
Briggs testified at his trial that he was eighteen years old and had been
living with the victim since November 2007. He stated that the victim took him
in when he did not have a place to stay. Briggs said that he initially regarded the
victim as a father figure. Eventually, Briggs testified [that] the victim let Briggs
know that he wanted a sexual relationship with him, a situation with which Briggs
was “not comfortable.”
Briggs stated that on the morning of January 24, 2008, he woke up to find
the victim on top of him trying to pull his pants down. Briggs pushed him away,
grabbed his school clothes, and drove the victim’s vehicle to school. During the
day, the victim left multiple messages on Briggs’s cell phone indicating that he
was upset with Briggs for driving the victim’s vehicle to school.
That evening, Briggs drove to the victim’s apartment, accompanied by
Derrick Wooten and Joyce Livingston. Briggs said that he went there to approach
the victim about “the homosexual thing” and that he wanted Wooten to come
along in case of a fight. Briggs also planned to retrieve his own belongings and to
steal another of the victim’s cars. When they arrived, Briggs went up to the
apartment, and Wooten and Livingston stayed in the car. Briggs carried Wooten’s
.38 caliber handgun with him. Briggs knocked on the door, and the victim opened
the door and started arguing with Briggs. Briggs then began throwing punches,
and the two men got into a fight. At one point, the victim kicked Briggs’s chest,
separating the two. Briggs then ran to the closet and grabbed a .45 caliber
handgun.

Briggs then walked downstairs where the victim was knocking on the
neighbor’s door for help. Briggs fired the .45 caliber handgun at the victim until
the gun would not fire anymore. Briggs said that he “freaked out” and ran around
the apartment building. He then ran back to the victim’s apartment to grab the
keys to the victim’s other vehicle. He saw the victim and shot him several more
times with Wooten’s .38 caliber handgun. He stated: “Everything was just
happening so fast. Nothing clear was going through my mind.”
Brigg’s statement to the police (a videotape of which was played at trial)
was consistent with his trial testimony. Briggs told the police that he intended to
confront the victim and that he planned to fight the victim and to steal his cars.
After first shooting the victim with the .45 caliber handgun, and then running
around the apartment building, Briggs said that he returned and found the victim
moving around, so he shot him with the .38 caliber handgun. He told the police
that something in the back of his head told him: “You got to finish it off. You
started it and got to finish it.” Briggs, Livingston, and Wooten drove off with the
two cars, which they later abandoned in a parking lot. Briggs said that he threw
both guns into the river.
The medical examiner testified that the victim had been shot ten times and
that those gunshot wounds were the cause of death. When police found the
victim’s two vehicles, they retrieved Briggs’s book bag from the trunk of one of
them. The bag contained the car titles to the victim’s two cars. At Livingston’s
home, the police found credit cards, a driver’s license, and a wallet belonging to
the victim. At Wooten’s home, they found the .38 caliber handgun Briggs had
utilized. A police firearms examiner verified that it was the gun that had fired
bullets recovered from the crime scene and from the morgue. The .45 caliber
handgun was not found.
At the close of evidence, the circuit court submitted three verdict directors
related to the murder charge, for first-degree murder, first-degree robbery, and
two counts of armed criminal action. The court sentenced Briggs to consecutive
prison terms of life without parole, ten years, three years, and three years,
respectively. This court affirmed Briggs’s convictions and sentences on direct
appeal in State v. Briggs, 318 S.W.3d 203 (Mo. App. 2010).
Respondent’s Exhibit B, pp. 1-4 (internal footnotes omitted).

GROUND 1 – TRIAL COURT DID NOT ALLOW PRIVATE COUNSEL
In Ground 1, petitioner contends that the trial court erred in denying petitioner’s request
for the opportunity to obtain private counsel. On direct appeal, the Missouri Court of Appeals,
Western District, disposed of petitioner’s claim as follows:

Although Briggs has a constitutional right to legal counsel, he does not
have an absolute right to be represented by counsel of his own choosing. State v.
Jefferies, 504 S.W.2d 6, 7 (Mo. 1974). His constitutional right to counsel does
not mean that he is entitled to the aid of a particular attorney. State v. Williams,
419 S.W.2d 49, 54 (Mo. 1967). His right to be represented by counsel of his own
choosing is limited to the extent that it impinges on the public’s right to effective
and efficient administration of justice. Jefferies, 504 S.W.2d at 7.
The circuit court has broad discretion in ruling upon a request by the
defendant to discharge counsel and to appoint substitute counsel. State v. Rice,
249 S.W.3d 245, 251 (Mo. App. 2008). “To warrant substitution of counsel, a
defendant must show ‘justifiable dissatisfaction’ with appointed counsel.” State
v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989). “To obtain a change of
attorney on the eve of trial, a defendant must show ‘irreconcilable conflict’ with
counsel, which is a total breakdown in communication between the defendant and
his attorney.” Rice, 249 S.W.3d at 251. Mere disagreement about strategy does
not equate to a total breakdown in communication. Id.
In this case, Briggs did not ask for the change of attorney on the eve of
trial but waited until after the completion of voir dire to make his request. In
asking for the change of attorney, Briggs merely told the circuit court that he had
obtained information that he thought would help him in his case and that his
appointed counsel had not “relinquished” or told him about this information.
Even had Briggs asked for the change of attorney before the trial began, he did
not establish that an ‘irreconcilable conflict’ existed between him and his counsel.
The failure of appointed counsel to relinquish or tell Briggs about information that
might be helpful to Briggs in his case does not show that “a total breakdown in
communication” existed between them.
Briggs contends, however, that the circuit court should have at least made
an informal inquiry as to whether substitution was warranted. In support of his
contention, Briggs relies on State v. Fields, 636 S.W.2d 79, 80-81 (Mo. App.
1982). In Fields, this court’s Eastern District held that the circuit court has an
obligation to make at least an informal inquiry to determine whether any incident
has occurred to warrant a substitution of attorneys. Id. Contrary to what Briggs
contends, the circuit court did make an informal inquiry concerning Briggs’s
desire to substitute attorneys. Once it was brought to the circuit court’s attention
that Briggs wanted to change attorneys, the circuit court let Briggs make his
record and address the court. Briggs told the circuit court that appointed counsel
did not “relinquish” or tell Briggs about information that might be helpful to
Briggs’s case and that he believed that he “would have a better chance with a paid
attorney.” Such an inquiry was sufficient under Fields, given the plain error
standard of review.
Although Briggs contends that the circuit court erroneously assumed that
Briggs would require a continuance if substitution were allowed, when Briggs

made no continuance request (at least explicitly), such an assumption was not
unfounded where a mid-stream request to change counsel is made in a first-degree
murder case. Moreover, Briggs did not provide the court with any information as
to retained counsel’s identity, presence in the courtroom, or availability and
preparedness to continue the ongoing trial.
Briggs also claims that the circuit court erred in allowing a public defender
to represent him because he was not really indigent and, therefore, did not qualify
for the services of the public defender. This argument is without merit.
The record establishes that the public defender’s office determined, at the
beginning of the case, that Briggs qualified for its services. Pursuant to section
600.086.3, RSMo 2000, to qualify for the public defender’s services, Briggs had
to file with the court an affidavit containing factual information supporting his
claim of indigency. Thus, it is disingenuous for Briggs to argue that the public
defender should not have been representing him because he was not indigent.
Indeed, section 600.086.4 says that “[a]ny person who intentionally falsifies such
affidavit in order to obtain state public defender system services shall be guilty of
a class A misdemeanor.”
Moreover, section 600.086.3 says:
The determination of indigency of any person seeking the
services of the state public defender system shall be made by the
defender or anyone serving under him at any stage of the
proceedings. Upon motion by either party, the court in which the
case is pending shall have authority to determine whether the
services of the public defender may be utilized by the defendant.
Upon the courts finding that the defendant is not indigent, the
public defender shall no longer represent the defendant.
According to this section, the public defender’s office, not the circuit court, is
responsible for determining whether a defendant financially qualifies for its
services. If Briggs managed to gather enough resources to disqualify himself
from the public defender’s services, it was incumbent upon the public defender to
make that determination and for either the public defender or Briggs to file a
motion with the circuit court to determine whether the services of the public
defender were needed. Neither Briggs nor the public defender filed such a
motion. Indeed, the public defender did not even file a motion seeking to
withdraw from the case.
Briggs claims that to allow the public defender’s office to represent a nonindigent client violates “the spirit of the entire Chapter 600.” But, nothing in
Chapter 600 suggests that appointing an attorney to a non-indigent defendant is
reversible error. The spirit (and purpose) of Chapter 600 is to give effect to the
Sixth Amendment guarantee that all criminal defendants are entitled to the

assistance of counsel. If occasionally a non-indigent defendant receives
appointed counsel even though he technically does not qualify, the spirit of the
law – to ensure that every defendant is represented – is not undermined in the
least.
The circuit court did not plainly err in permitting the public defender to
represent Briggs or in refusing Briggs’s mid-trial request to bring in new counsel.
We, therefore, affirm the circuit court’s judgment.
Respondent’s Exhibit A, pp. 4-7 (internal footnotes omitted).
The decision of the Missouri Court of Appeals is reasonable and therefore is entitled to
deference under § 2254(d). The resolution of Ground 1 by the state court did not result in Aa
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 Aa 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) and (2) (as amended April 24, 1996), as defined
by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000).1

Consequently, Ground

1 is denied.
GROUND 2 - INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
In Ground 2, petitioner contends that trial counsel was ineffective for failing to request
that the trial court instruct the jury on the lesser-included offense of voluntary manslaughter.
Petitioner contends that, had the jury been instructed of such, there is a reasonable probability
that the outcome of the trial would have been different.

1

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, 529
U.S. at 413, 120 S.Ct. at 1523.

In order for petitioner to successfully assert a claim of 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:
In his first point on appeal, Briggs contends that the circuit court erred in
denying his post-conviction motion because his trial counsel rendered ineffective
assistance by failing to request that the court instruct the jury on the lesserincluded offense of voluntary manslaughter. Briggs claims that there is a
reasonable likelihood that the outcome of the trial would have been different if the
jury had been instructed on voluntary manslaughter.
To prevail on an ineffective assistance of counsel claim, the movant must
show, by a preponderance of the evidence, that counsel failed to satisfy the test set
forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Johnson, 406
S.W.3d at 898. That test requires the movant to establish both (1) that his
attorney’s performance “did not conform to the degree of skill, care, and diligence
of a reasonably competent attorney,” and (2) that his attorney’s failures prejudiced
his case. Tisius v. State, 183 S.W.3d 207, 211-12 (Mo. banc 2006) (citing
Strickland, 466 U.S. at 687). To satisfy the performance prong of Strickland, the
movant must overcome the strong presumption that counsel acted professionally
and that any challenged action was based on sound trial strategy. Id. at 211. To
prove prejudice, he must show that, “but for counsel’s poor performance, there is

a reasonable probability that the outcome of the court proceeding would have
been different.” Id. at 212.
The crimes at issue in this case are defined in Chapter 565. A person
commits first-degree murder, “if he knowingly causes the death of another person
after deliberation upon the matter.” § 565.020.1, RSMo (emphasis added). A
person commits conventional second-degree murder, if he “[k]nowingly causes
the death of another person or, with the purpose of causing serious physical injury
to another person, causes the death of another person.” § 565.021.1(1). A person
commits second-degree felony murder if he “[c]ommits or attempts to commit
any felony, and, in the perpetration . . . of such felony . . . , another person is
killed as a result of the perpetration . . . of such felony.” § 565.021.1(2).
Voluntary manslaughter is committed when a person “[c]auses the death of
another person under circumstances that would constitute murder in the second
degree under [section 565.021.1(1)], except that he caused the death under the
influence of sudden passion arising from adequate cause.” § 565.023.1(1)
(emphasis added).
Voluntary manslaughter is a lesser-included offense of both first-degree
and second-degree murder. § 565.025.2. Pursuant to section 556.046, a trial
court is required to give an instruction for a lesser-included offense “when the
evidence provides a basis for both the acquittal of the greater offense and the
conviction of the lesser offense.” See State v. Johnson, 284 S.W.3d 561, 575
(Mo. banc 2009); § 556.046.3, RSMo 2007 Cum. Supp. In two recent direct
criminal appeals, State v. Jackson, ---S.W.3d---, No. SC93108 (Mo. banc June 14,
2014), and State v. Pierce, ---S.W.3d---, No. SC93321 (Mo. banc June 24, 2014),
the Missouri Supreme Court held that when the defense requests an instruction on
certain lesser-included offenses, the trial court must submit it. This case differs
from Jackson and Pierce, however, in that the jurors in those cases apparently
were not given any lesser-included offense instructions, leaving them with an “allor-nothing” choice. In contrast, the jury in this case was instructed on first-degree
murder, conventional second-degree murder, and second-degree felony murder
and chose to convict Briggs of first-degree murder. Additionally, while Jackson
and Pierce clearly control the issue of when a requested instruction ought to be
given by the court, in the case at bar, the issues are the ineffectiveness of counsel
for failure to request a lesser-included instruction and the prejudice, if any, as a
result of that failure.
As noted, to prevail on a claim of ineffective assistance of counsel, the
movant must satisfy both the performance prong and the prejudice prong of
Strickland. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). In assessing
whether the movant has satisfied the prejudice prong of Strickland, “the question
is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.” 466 U.S. at 695. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. “An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.” Id. at 691. As explained in Strickland, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Id. at 697. Such is the case here.
Briggs contends that he was prejudiced because, if the voluntary
manslaughter instruction had been given, there is a reasonable likelihood (based
on the evidence of his confusion and anger over the unwanted sexual advance, the
repeated phone calls from the victim, and the fight preceding the shooting) that
the jury would have found that he acted “under the influence of sudden passion
arising from adequate cause” and convicted him on that lesser offense. Briggs
also claims that if the jury had had “three levels of homicide to consider, there
was a reasonable probability that the jury might have compromised and found
[him] guilty of second degree murder.”
First, Briggs does not persuade us that the mere addition of a voluntary
manslaughter instruction would have caused the jury to “compromise” on a
second-degree murder conviction (as opposed to following the instructions and
the law, as we must presume all juries do, see Strickland, 466 U.S. at 694-95).
But, in any event, Briggs’s theories of prejudice are negated by the fact that the
jury had three versions of homicide to choose from (i.e., first-degree murder and
two variations of second-degree murder), and chose to convict on the highest
offense submitted. As the circuit court noted,
[the] movant was not prejudiced because the issue of whether
movant deliberately killed the victim was adequately presented to
the jury in the form of the verdict direction instruction for second
degree murder—a proposition [that] the jury rejected by convicting
movant of murder in the first degree.
We agree. In State v. Petary, 781 S.W.2d 534, 544 (Mo. banc 1989),
where the jury was instructed on first-degree and conventional second-degree
murder and convicted the defendant of first-degree murder, our Supreme Court
held that the defendant was not harmed by the absence of an instruction on
second-degree felony murder, in that such an instruction “would have been
superfluous.” The Court further held that “[b]eacuse the instruction would have
been superfluous, there is also no ineffective assistance of counsel with respect to
his claim.” Id. Here, the jury could have convicted Briggs of second-degree
murder or second-degree felony murder if the jurors had had any doubt about
whether he knowingly caused the victim’s death after deliberation, but the jury
found him guilty of first-degree murder.
Given that the jury convicted Briggs of first-degree murder when it could
have convicted him of either the two types of second-degree murder, and given
the overwhelming evidence that supports that conviction, even if trial counsel had
requested an instruction on voluntary manslaughter and the instruction had been

given, there is no reasonable probability that the outcome of the trial would have
been different. Thus, Briggs has not proven prejudice, and the circuit court did
not clearly err in denying his motion for post-conviction relief. Point denied.
Respondent’s Exhibit B, 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 resolution of Ground 2 by the state court did not result in Aa
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 Aa 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) and (2) (as amended April 24, 1996), as defined
by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 412 (2000). Applying the Strickland
standard of review to the facts as set forth in the record, the Court finds that counsel was not
ineffective.
Ground 2 is denied.
GROUNDS 3 THROUGH 9 – PROCEDURAL DEFAULT
In Ground 3, petitioner contends that trial counsel was ineffective for failing to adduce
evidence of petitioner’s mental state at the time of the offense. In Ground 4, petitioner contends
that trial counsel was ineffective for failing to investigate whether petitioner suffered from
“intermittent explosive disorder[.]” In Ground 5, petitioner contends that trial counsel was
ineffective for failing to “inject, during petitioner’s testimony[,]” the issues of “sudden passion”
and “adequate cause[.]” In Ground 6, petitioner contends that trial counsel was ineffective for
allowing the trial court to determine the jury instructions prior to all the evidence being adduced
at trial. In Ground 7, petitioner contends that trial counsel was ineffective for deposing Detective
Hernandez four days before trial, and then failing to adequately cross-examine Detective

Hernandez at trial. In Ground 8, petitioner contends that trial counsel was ineffective for failing
to prepare and put on an adequate defense. In Ground 9, petitioner contends that appellate
counsel was ineffective for failing to raise meritorious claims that were preserved for appeal.
Grounds 3 through 9 are procedurally defaulted.
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate procedural rule, federal habeas review of
the claims is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of
justice.
Id. at 750. Cause, actual prejudice, and the probability of a Afundamental miscarriage of justice@
are to be judged under criteria set out in Wainwright v. Sykes, 433 U.S. 72 (1977), and Murray v.
Carrier, 477 U.S. 478 (1986). Coleman, 501 U.S. at 748-50.
A review of the record shows that petitioner did not raise Ground 9 in his amended Rule
29.15 motion and did not raise Grounds 3, 4, 5, 6, 7, or 8 on appeal from the denial of his
amended Rule 29.15 motion. Therefore, Grounds 3, 4, 5, 6, 7, 8, and 9 are procedurally
defaulted and may not be reviewed by this Court unless petitioner can demonstrate cause and
actual prejudice, or that failure to consider his claims will result in a fundamental miscarriage of
justice. Coleman, 501 U.S. at 750. The Court will not reach the Aprejudice@ component of the
analysis unless it first finds that the petitioner has demonstrated Acause@ for his procedural
default.
In Ground 9, it appears that petitioner may be attempting to demonstrate cause for his
procedural default of Grounds 3, 4, 5, 6, 7, and 8 under Martinez v. Ryan, 132 S. Ct. 1309, 1312
(2012). However, even if petitioner could show ineffective assistance or abandonment of postconviction counsel regarding Grounds 3 through 8, his procedurally defaulted claims

nevertheless fail because petitioner’s underlying claims do not allege “substantial” claims of
ineffective assistance of trial counsel as required under the second prong of Martinez. 132 S. Ct.
at 1318.
Indeed, petitioner does not present any valid explanation for why these grounds were not
pursued on appeal from the denial of his amended Rule 29.15 motion and, therefore, has failed to
demonstrate cause for his procedural default. As a result, we do not consider prejudice. The
Court, however, can still reach the merits of his claims if petitioner can show that he is Aprobably
actually innocent@ of the crimes for which he was convicted. Bowman v. Gammon, 85 F.3d
1339, 1346 (8th Cir. 1996), cert. denied, 520 U.S. 1128 (1997). To demonstrate his innocence,
petitioner must satisfy a two-part test: First, he must support his allegations of constitutional
error Awith new reliable evidence. . . that was not presented at trial.@ Second, he must establish
Athat it is more likely than not that no reasonable juror would have convicted him in light of the
new evidence.@ Id., citing Schlup v. Delo, 513 U.S. 298 (1995). Petitioner fails to make this
showing.
Petitioner has failed to show cause for his default of Grounds 3, 4, 5, 6, 7, 8, and 9. He
does not show that a manifest injustice will occur if these grounds are not reviewed on the
merits, and he has failed to meet the Schlup standard for actual innocence. Id. Therefore,
federal review of Grounds 3, 4, 5, 6, 7, 8, and 9 is barred.
Grounds 3, 4, 5, 6, 7, 8, and 9 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: _February 23, 2016.