Wolfe v. Pash
Filing
17
ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied; (2) a certificate of appealability is denied; and (3) this case is dismissed with prejudice. Signed on November 10, 2015 by District Judge Fernando J. Gaitan, Jr. (Thoennes, Cindy) (Main Document 17 replaced on 11/10/2015)
UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DANNY RAY WOLFE,
)
)
)
)
)
)
)
)
Petitioner,
vs.
RONDA PASH,
Respondent.
Case No. 15-0472-CV-W-RK-P
)
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at Crossroads Correctional Center in
Cameron, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his 2006 convictions and sentences for two counts of first-degree murder,
two counts of armed criminal action, and one count of first-degree robbery, which were entered in the
Circuit Court of Camden County, Missouri. Petitioner’s convictions and sentences were affirmed on
direct appeal. State v. Wolfe, 344 S.W.3d 822 (Mo. Ct. App. 2011); Doc. 11-15. 1 Petitioner’s motion
for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied following an evidentiary
hearing (Doc. 11-17, pp. 51-78) and that denial was affirmed on appeal therefrom (Wolfe v. State, 446
S.W.3d 738 (Mo. Ct. App. 2014); Doc. 12-18).
Petitioner raises eight grounds for relief. Doc. 1, pp. 9-18. Respondent contends that Ground 1
is not cognizable and, alternatively, is without merit, that Ground 4 is procedurally defaulted and,
alternatively, is without merit, and that Grounds 2, 3, and 5-8 are without merit. Doc. 9.
1
The state court opinions cited herein relate to Petitioner’s criminal proceedings following his second trial. Petitioner’s first
trial ended in convictions on all counts, but the judgment was vacated in a subsequent post-conviction proceeding. See Wolfe,
344 S.W.3d at 830; Wolfe v. State, 96 S.W.3d 90 (Mo. 2003). Petitioner was retried in 2006 and was again found guilty on
all counts. See Wolfe, 344 S.W.3d at 830.
Statement of Facts
In affirming the denial of post-conviction relief, the Missouri Court of Appeals, Southern
District, set forth the following facts:
In February 1997, Mr. and Mrs. Walters had a Cadillac for sale. That same
month, [Petitioner] had unsuccessfully offered to sell Gregory Addington a .25 caliber
pistol.
Late on the night of Wednesday, February 19, 1997, Jessica Cox went to a bar.
[Petitioner] approached her there and introduced himself. [Petitioner] wanted Ms. Cox
to sell drugs for him, and at around 1:00 a.m. on Thursday morning, Ms. Cox left the
bar with [Petitioner] in his truck to get the drugs. They eventually wound up at
[Petitioner’s] hotel, where [Petitioner] donned a camouflage jacket and nylon
“parachute” pants.
[Petitioner] and Ms. Cox left the hotel around 4:30 a.m. They stopped at a gas
station, and [Petitioner] told Ms. Cox to buy a pair of jersey gloves. They proceeded to
Greenview, where [Petitioner] pointed out the Walters residence and said that they
would be going there. [Petitioner] drove past the residence and parked by the road.
[Petitioner] told Ms. Cox that Mr. and Mrs. Walters had money, they were expecting
him early in the morning to test-drive the Cadillac, and that he intended to rob them.
[Petitioner] put on gloves; he also handed Ms. Cox a pair of gloves, telling her that she
should wear them.
Around 6:00 a.m., the pair returned to the Walters residence, and [Petitioner]
parked behind the Cadillac. Mrs. Walters answered the door, and Mr. Walters walked
out to the Cadillac. [Petitioner] told Ms. Cox to join them, and Mr. Walters invited
Ms. Cox to drive the car. Ms. Cox asked Mr. Walters to come with her on the test
drive, and he agreed to do so. Mr. Walters was riding in the front passenger seat, and
[Petitioner] was sitting behind him in the back seat.
As Ms. Cox drove back toward the Walters residence, she “heard a loud
bang[.]” When she looked over, Mr. Walters took “his last breath” and put his head
down. Ms. Cox also saw something that “looked like a barrel of a gun.” [Petitioner]
took Mr. Walters’s wallet and remarked, “[T]his guy is loaded.”
When they reached the Walters residence, [Petitioner] told Ms. Cox to get into
his truck, and [Petitioner] went inside the house. Ms. Cox heard a “commotion.” She
also heard other noises, including a shot, emanating from the house. After about seven
or eight minutes, [Petitioner] came out of the house, and he was carrying a safe. He
put the safe in the bed of his truck and drove to a wooded area. [Petitioner] took the
safe and some tools into the woods, and Ms. Cox saw him open the safe with the tools.
[Petitioner] put some items from the safe into his pocket, leaving the safe and some
papers on the ground.
2
[Petitioner] then drove to some condominiums, where he asked the custodian
for a key to a storage shed. The custodian observed that [Petitioner] was wearing silky,
nylon pants.
[Petitioner] went to another location at the condominiums for five to ten
minutes. When he returned to the truck, [Petitioner] was wearing white painter’s pants
and a sweatshirt. [Petitioner] told Ms. Cox that he had thrown the gun into the lake.
Around 8:00 a.m., [Petitioner] drove to a shopping center near Camdenton and bought
some paint. Ms. Cox asked [Petitioner] to take her to the Osage Beach Hospital, where
he dropped her off and gave her $540 in cash. [Petitioner] told Ms. Cox that he would
kill her and her family if she told anyone what had happened. Ms. Cox called some
friends and told them that she had been kidnapped.
Around 8:30 a.m. on February 20th, a propane gas deliveryman, Kenneth
Stoller, drove past the Walters residence and noticed a man sitting in the front
passenger seat of the Cadillac that was for sale. When Mr. Stoller came back from the
opposite direction, at around 10:30 a.m., he still saw a man sitting in the front
passenger seat. He thought it odd that the man had not moved.
A mail carrier, Charles Lunaberg, usually delivered mail to the Walters mail
box between 1:30 and 3:30 p.m. He knew that they picked their mail up daily as their
box on the highway was always empty the next day when he delivered their mail. That
familiar pattern was broken on Thursday, February 20, when Mr. Lunaberg noticed
that the mail from the day before was still in their box. The following day, the
accumulated mail was still in the box.
On an occasion that occurred after [Petitioner] had offered to sell the gun to
Mr. Addington, [Petitioner] went into the bar that Mr. Addington managed and
exchanged quarters that ‘were in some sort of bags’ for approximately $25 in
currency.
On Sunday, February 23, Charles Rickey went to the Walters residence twice
to dump septic tank waste on their field. Mr. Rickey had an agreement with Mr.
Walters to pay for each load that he dumped. Mr. Rickey dumped his second load
around noon. As he was leaving, he saw Mr. Walters sitting in the passenger side of
the Cadillac. Mr. Rickey approached the car and noticed dried blood on Mr. Walters’s
clothes. Mr. Rickey opened the door and touched Mr. Walters, who “felt like he was
all like concrete.” Mr. Rickey called 9–1–1. His father, who was with him at the time,
went to the door of the house and called for Mrs. Walters, but he received no response.
Officers recovered a spent shell casing from Mr. Walters’s collar, and a live
.25 caliber round from the back seat of the Cadillac. Officers located Mrs. Walters’s
body inside the house. It was covered in blood and surrounded by more blood on the
floor. A shotgun lay near her feet, and a bloody knife was laying on the floor in the
kitchen. Tennis-shoe type footprints were present on the kitchen floor. The prints did
3
not match the shoes on Mrs. Walters’s body. Autopsies later indicated that Mr.
Walters died from a gunshot wound to his head that perforated his spinal cord. Mrs.
Walters had a shotgun wound, but she died from a stab wound that penetrated her
heart.
On February 27, Ms. Cox contacted an attorney. Her attorney subsequently
secured an agreement from the prosecutor that granted Ms. Cox immunity from
prosecution in exchange for her promise to provide truthful testimony against
[Petitioner]. That same evening, Ms. Cox led officers to the safe. Along with the safe,
the officers found papers bearing Mr. Walters’s name, a bag of quarters, and some
loose quarters.
The police recovered items from a dumpster at [Petitioner’s] hotel, including a
live .25 caliber round, a lease agreement bearing [Petitioner’s] name, a camouflage
coat, gloves, a partially-full box of .25 caliber ammunition with a black hair inside,
and another box of .25 caliber ammunition. A search of a storage shed at the
condominium where paint was stored produced black nylon pants and a pair of tennis
shoes. Laboratory analysis subsequently showed that the shoeprints on the kitchen
floor of the Walters home were consistent with the tennis shoes recovered from the
shed. A search of [Petitioner's] truck yielded some brown jersey gloves.
The police interviewed [Petitioner], who initially denied knowing Ms. Cox. He
subsequently admitted that she had accompanied him to his hotel room, but he denied
taking Ms. Cox to the condominiums.
Wolfe, 446 S.w.3d at 741-43 (footnotes omitted, alterations added); Doc. 12-18, pp. 4-7.
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).2
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
2
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).
4
to and adopts those factual conclusions.
Ground 1
In Ground 1, Petitioner argues that Officer Gary Bowling omitted material facts from the search
warrant application, thereby misleading the issuing judge as to the existence of probable cause. Doc. 1,
p. 9. Respondent contends that Ground 1 is not cognizable in federal habeas pursuant to the doctrine
established by Stone v. Powell, 428 U.S. 465, 494 (1976), which held that, “where the State has provided
an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search
or seizure was introduced at his trial.” Doc. 9, p. 25. Respondent contends that the state courts properly
held a hearing and decided Ground 1 under the standard set forth in Franks v. Delaware, 438 U.S. 154
(1978). Doc. 9, pp. 25-31. In Franks, the United States Supreme Court held that, “where the defendant
makes a substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant’s request.” Franks, 48 U.S. at 155-56.
The Missouri Court of Appeals, Southern District, summarized Petitioner’s state-court challenge
to Officer Bowling’s warrant application as follows:
In March 2006, Defense counsel filed a motion to quash the search warrants on
the ground that the State failed to include seven relevant facts in the affidavit supporting
the warrant application. Counsel alleged that these facts were omitted with the intent to
make the affidavit misleading and that the affidavit would not have demonstrated
probable cause for the searches if these additional facts had been included.
In April 2006, the court held a hearing on the motion. Deputy Bowling testified
that he applied for the above-mentioned warrants on February 27th and 28th. Deputy
Bowling acknowledged that he had contact with Cox 19 years earlier when she filed a
false report with police as a juvenile. The warrant applications did not refer to the 1987
incident, Cox’s immunity agreement or the initial false story that she told her friends.
Deputy Bowling also had information that, during the course of the investigation into the
5
Walters’ murders, other officers had interviewed witnesses who claimed to have seen the
Walters alive after the time of death reported by Cox. The trial court denied the motion
to quash the search warrants.
Wolfe, 344 S.W.3d at 832; Doc. 11-15, p. 14. After Petitioner was convicted, he appealed the denial of
the motion to quash and was denied. Wolfe, 344 S.W.3d at 830-33; Doc. 11-15, pp. 12-17. In denying
Ground 1, the state appellate court found that Petitioner failed to establish that Officer Bowling omitted
material facts from his application with the intent of making that document misleading or that the
inclusion of the omitted facts in Officer Bowling’s application would have shown that there was no
probable cause to conduct the searches. Wolfe, 344 S.W.3d at 833; Doc. 11-15, p. 17.
In sum, the state court record indicates that Petitioner was given a full and fair opportunity to
litigate his Fourth Amendment objections before the state courts. As a result, this Court is precluded
from considering Ground 1, and the mere fact that the state courts may have erred on the issue (which
does not appear to be the case) does not entitle Petitioner to habeas relief. See e.g., Matthews v.
Workman, 577 F.3d 1175, 1194 (10th Cir. 2009) (concluding that Stone precluded consideration of
habeas claim that an affidavit in support of search warrant was obtained with false statements and
intentional material omissions in violation of the Fourth Amendment under Franks, because the habeas
petitioner was afforded a full and fair opportunity to litigate the claim before the state courts); Moreno v.
Dretke, 450 F.3d 158, 167 (5th Cir. 2006) (same). Petitioner’s only avenue for federal review to
determine whether or not his Fourth Amendment claim had been correctly decided would have been a
petition for certiorari to the United States Supreme Court after seeking review from Missouri’s highest
court on direct appeal, which Petitioner did not bring. See Poitra v. North Dakota, 79 F. Supp. 3d 1021,
1044 (D.N.D. 2015). Therefore, Ground 1 is barred by the doctrine set forth in Stone and is denied.
6
Ground 2
In Ground 2, Petitioner contends that the evidence was insufficient to support his convictions, in
that the state’s theory of the time of the murders was contradicted by scientific evidence. Doc. 1, pp. 911. Claims of insufficient evidence to support a verdict face “a high bar in federal habeas proceedings
because they are subject to two layers of judicial deference.” Coleman v. Johnson, 132 S. Ct. 2060,
2062 (2012). The first layer of deference is on direct appeal, where “[a] reviewing court may set aside
the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have
agreed with the jury.’” Id. (quoting Cavazos v. Smith, 565 U.S. 1 (2011)). A second layer of deference
then applies on habeas review, where “a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees with the state court.”
Id. Rather, “[t]he federal court instead may do so only if the state court decision was ‘objectively
unreasonable.’” Id.
The Missouri Court of Appeals, Southern District, denied Ground 2 as follows:
At trial, the jurors were provided with five estimates about when the Walters were
killed. Dr. Jungels estimated that the Walters had been killed 24 to 36 hours before they
were discovered, but he explicitly disclaimed any expertise in making time of death
determinations. Dr. Michael Zaricor (Dr. Zaricor) estimated the Walters’ time of death to
have been between 36 hours to one week prior to the discovery of their bodies. Dr.
Thomas Bennett (Dr. Bennett) opined that the Walters were likely killed either on
February 20th or 21st. Dr. Dix saw nothing during his examination of the Walters’ bodies
that would be inconsistent with them being killed on the morning of February 20th.
[Petitioner’s] expert, Dr. Samuel Gulino (Dr. Gulino), estimated the Walters’ time of
death to have been between 24 and 36 hours before their bodies were discovered. He
thought it very unlikely that the Walters had died more than 48 hours before they were
found.
[Petitioner] contends that: (1) Dr. Gulino’s testimony established to a scientific
certainty that the Walters were killed at 1:00 a.m. on February 21st; and (2) in the face of
such evidence, no rational juror could find that [Petitioner] killed the Walters at 6:00 a.m.
on February 20th as the State theorized. [Petitioner] asserts that “[w]hile the State offered
testimony from Cox that pointed the finger at [Petitioner], to accept that testimony
required the jury to invent a factual scenario that wholly ignored the facts and scientific
reality.” According to [Petitioner], “[t]he facts and inferences all lead to the impossibility
7
of Cox’s tale.” We disagree.
On appellate review, this Court must determine whether there was sufficient
evidence to permit a reasonable juror to find guilt beyond a reasonable doubt. State v.
Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). We view the evidence and all reasonable
inferences derived therefrom in a light most favorable to the verdict and disregard any
contrary evidence and inferences. State v. Goodin, 248 S.W.3d 127, 129 (Mo. App.
2008).
We have already recited the favorable evidence and inferences supporting the
jury's verdicts. Based upon our review of the record, the State made a submissible case on
the charges of first-degree murder, armed criminal action and first-degree robbery. An
appellate court does not act as a super juror with veto powers; instead, the decision made
by the trier of fact is given great deference. State v. Bateman, 318 S.W.3d 681, 687 (Mo.
banc 2010). [Petitioner] is asking this Court to ignore the applicable standard of review
and decide that Cox’s testimony was not credible because it conflicted with Dr. Gulino's
opinion as to when the Walters were killed. That is not our function. “Reliability and
credibility are issues for the jury.” State v. Miller, 139 S.W.3d 632, 635 (Mo. App. 2004).
The jurors can “believe all, some, or none of any witness's testimony in arriving at its
verdict.” State v. Pullum, 281 S.W.3d 912, 915 (Mo. App. 2009). Dr. Gulino's expert
opinion conflicted with Cox’s eyewitness account of when the Walters were killed, as
well as other circumstantial evidence and expert opinions tending to prove that the
Walters could have been killed on February 20th. The jury could have found that Dr.
Gulino's expert testimony was not credible. See State v. Johnson, 244 S.W.3d 144, 155–
56 (Mo. banc 2008); Smith v. State, 148 S.W.3d 330, 336 (Mo. App. 2004). Therefore,
the trial court did not err in denying [Petitioner’s] motion for judgment of acquittal. Point
II is denied.
Wolfe, 344 S.W.3d at 833-34 (alterations added); Doc. 11-15, pp. 17-19.
The Missouri Court of Appeals’ resolution of Ground 2 is not objectively unreasonable. The
state appellate court applied reasonably the correct standard before concluding that the State made a
submissible case on all of the charges for which Petitioner was convicted. See Jackson v. Virginia, 443
U.S. 307, 319 (1979) (constitutional standard for judging sufficiency of the evidence in criminal trials 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”). Although
Plaintiff argues that expert testimony he presented regarding the time of the victims’ death contradicted
the state’s theory, the evidence presented by the state “need not exclude every reasonable hypothesis of
8
innocence. . . we may not disturb the conviction if the evidence rationally supports two conflicting
hypotheses.” United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996). Insofar as Petitioner argues
that his expert was more credible than those presented by the state, credibility determinations are left for
the state courts to decide. Graham, 728 F.2d at 1540.
Because the state court’s determination as to Ground 2 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” 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), Ground 2 will be denied.
Ground 3
In Ground 3, Petitioner claims that the trial court erred in admitting evidence concerning the
caliber of ammunition found in the dumpster at the hotel, because the state failed to disclose the
evidence under Brady v. Maryland, 373 U.S. 83 (1963). Doc. 1, pp. 11-12. “To prove a Brady
violation, a defendant must show that the prosecution suppressed evidence, the evidence was favorable
to the accused, and the evidence was material to the issue of guilt or punishment.” United States v.
Duke, 50 F.3d 571, 577 (8th Cir.), cert. denied, 516 U.S. 885 (1995) (citing Prewitt v. Goeke, 978 F.2d
1073, 1078 (8th Cir. 1992)). The mere possibility that the undisclosed evidence might have influenced
the jury does not establish materiality. Knox v. State of Iowa, 131 F.3d 1278, 1283 (8th Cir. 1997).
“Rather, there must be a reasonable probability that its disclosure would have led to a different result at
trial, thus undermining confidence in the jury verdict.” Id.
The Missouri Court of Appeals, Southern District, denied Ground 3 as follows:
During a search of the dumpster at the Williamsburg Inn, police found a pistol
magazine in a trash bag. Water Patrol Officer Eric Gottman (Officer Gottman) recovered
the item. The magazine was lying on top of loose .22 caliber cartridges and had a .22
cartridge sticking straight up out of the magazine. It was listed as a .22 caliber magazine
9
on the evidence form. During discovery, the evidence form and the magazine were
provided to defense counsel and their firearms expert for their examination.
About two weeks prior to trial, a prosecutor visually inspected the magazine and
concluded that it was for a .25 caliber weapon, rather than a .22 caliber weapon. During
the cross-examination of Sgt. Teri Harmon, who was in charge of the Camden County
evidence room, defense counsel asked whether the evidence form stated that a .22 caliber
magazine had been found during the dumpster search. During a side-bar at the bench, the
prosecutor said he believed the form was in error and the magazine was actually for a .25
caliber weapon. Defense counsel claimed there had been a discovery violation. The court
decided to take the issue up later, and Sgt. Harmon was allowed to testify about what the
evidence form stated.
During a break in proceedings, defense counsel filed a motion asking the court to
prohibit Officer Gottman or any other witness from stating that the magazine was for a
.25 caliber weapon. The motion asserted that there had been a discovery violation
concerning the magazine. The prosecutor denied there had been a discovery violation
because the evidence form and the magazine had been provided to the defense during
discovery. The trial court denied the motion because “the magazine is whatever it may be
and [Officer Gottman] may not be able to identify it even if he does see it.”
During Officer Gottman's testimony, he described the items he found during his
search of the dumpster at the Williamsburg Inn. One of those items was the pistol
magazine. Because the magazine was lying on top of loose .22 caliber rounds and had a
.22 caliber cartridge sticking up out of it, Officer Gottman assumed it was a .22 caliber
magazine and listed it that way on the evidence form. He had never tried to load a .22
caliber cartridge in the magazine. When he tried to do so in court, the .22 caliber
cartridge would not fit because it was too long for the magazine. He was able to properly
load a .25 cartridge in the magazine. Officer Gottman testified that he had made a
mistake in describing the magazine on the evidence form. Defense counsel crossexamined Officer Gottman about the mistake at length and impeached him with prior
sworn testimony in which he had described the item as a .22 caliber magazine. The tenor
of the cross-examination was that Officer Gottman had been sloppy in handling the
evidence and that he had previously given unreliable testimony while under oath. During
the subsequent testimony of the State’s firearms expert, the court prohibited the
prosecutor from asking that witness what caliber cartridge the magazine was designed to
hold.
....
The trial judge concluded that there was no discovery violation here. That ruling
was not an abuse of discretion. The defense was provided with the evidence form and the
magazine during discovery. Counsel had the opportunity to have the magazine examined
by their firearms expert. The prosecutor discovered the misidentification in the evidence
form by visually inspecting the magazine itself, which defense counsel had the same
opportunity to do. The prosecutor’s mental impressions and conclusions about the
10
meaning and significance of the magazine were not subject to disclosure. Rule 25.10(A);
State v. Crespo, 664 S.W.2d 548, 553 (Mo.App.1983) (where the State provided defense
with a copy of a criminalist's report, there was no discovery violation; the prosecutor was
not required to disclose his own conclusion that the results of the test appeared to be
inaccurate). Neither was there a Brady due process violation. See Gill v. State, 300
S.W.3d 225, 231 (Mo. banc 2009). Defense counsel were provided with the magazine
during discovery, which gave them the same means as the State to discover what caliber
weapon the magazine fit.
Assuming arguendo that there was a discovery violation, [Petitioner] still is not
entitled to relief . . . .
. . . . Here, the admission of Officer Gottman's testimony did not result in fundamental
unfairness to [Petitioner]. No murder weapon was ever recovered. The State relied upon
circumstantial evidence suggesting that a .25 caliber weapon was used to kill Leonard.
The items recovered from the dumpster included a mix of both .22 caliber and .25 caliber
ammunition. Defense counsel presented evidence that a hair found inside one of the
boxes of .25 caliber ammunition belonged to Cox. During closing arguments, defense
counsel argued that it was Cox who placed the discarded materials in the dumpster.
During Officer Gottman's testimony, he admitted he made a mistake in describing the
magazine. That change in testimony resulted in substantial cross-examination as to the
thoroughness of his evidence collection, and the witness was repeatedly impeached with
his own prior inconsistent sworn testimony.
After reviewing the record, we are unpersuaded that the admission of this
evidence allowed the State to make a wholesale change in its theory, as claimed by
[Petitioner]. We also are unpersuaded that this evidence allowed the State to “draw a
line” between [Petitioner] and the murder weapon. Addington testified that [Petitioner]
offered to sell a .25 caliber pistol in the middle of February, which tended to prove that
[Petitioner] had access to such a weapon. Defense counsel admitted that [Petitioner] was
staying at the Williamsburg Inn, where the .25 caliber ammunition was found in the
dumpster. During interrogation, police asked [Petitioner] whether they would find the .25
caliber gun in the lake. [Petitioner] said, “[i]f you all can find a gun in the lake his hat's
off to us.” This evidence, which came from sources completely independent of Officer
Gottman, tended to connect [Petitioner] to a .25 caliber weapon. Point III is denied.
Wolfe, 344 S.W.3d at 834-36 (alterations added); Doc. 11-15, pp. 19-23.
Initially, any argument by Petitioner that the prosecution violated Missouri’s statutes governing
discovery is not cognizable in federal habeas, because “federal habeas corpus relief does not lie for
errors of state law.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (internal quotation omitted). Moreover,
the state court reasonably found that there was no Brady violation, in that defense counsel were provided
11
with the magazine during discovery and there was other evidence that connected Petitioner to a .25
caliber weapon. See U.S. v. Zuazo, 243 F.3d 428, 430 (8th Cir. 2001) (holding that Brady is not violated
where the government fails “to disclose evidence to which the defendant had access through other
channels” or when the evidence from the undisclosed source “is cumulative of evidence already
available.”).
Because the state court’s determination as to Ground 3 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” 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), Ground 3 will be denied.
Ground 4
In Ground 4, Petitioner argues that the trial court erred in admitting the inadmissible hearsay
opinions and conclusions of the state’s expert, Dr. Bennett. Doc. 1, pp. 12-13. Respondent argues that
Petitioner procedurally defaulted Ground 4 by failing to preserve the claim for appeal and that the
Missouri Court of Appeals’ discretionary plain error review on the merits was reasonable. Doc. 9, pp. 89, 42.
“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 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). “If a petitioner fails to exhaust state remedies and the
12
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 procedurally defaulted Ground 4 by failing to make a specific hearsay objection at the
time the evidence was offered. Wolfe, 344 S.W.3d at 837; Doc. 11-15, pp. 23-24. Although the
Missouri Court of Appeals, at its discretion, reviewed this claim for plain error (Wolfe, 344 S.W.3d at
837), a state court’s discretionary review for plain error does not excuse the procedural default of an
unpreserved claim. Clark v. Bertsch, 780 F.3d 873, 875-77 (8th Cir. 2015) (citing Hayes v. Lockhart,
766 F.2d 1247, 1253 (8th Cir. 1985)). 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 fails to establish cause for the procedural default of Grounds 4. Instead, in his reply,
Petitioner merely reargues the merits of the claim. Doc. 15, pp. 5-9. Even if Petitioner had alleged that
the procedural default was caused by trial counsel’s ineffective assistance, his claim would fail because
claims of ineffective assistance of counsel must have been independently presented in a timely manner
to the state courts in order to be used to show the alleged cause for a state procedural default. Edwards
v. Carpenter, 529 U.S. 446, 451 (2000). Petitioner did not raise an independent claim of ineffective
assistance of counsel on this issue in either his amended post-conviction motion or on post-conviction
appeal. Doc. 11-17, pp. 15-47; Doc. 12-16.
Petitioner fails also 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. 2006) (a petitioner must
present new evidence that affirmatively demonstrates that he is actually innocent of the crime for which
he was convicted in order to fit within the fundamental miscarriage of justice exception), cert. denied,
13
549 U.S. 1036 (2006). Consequently, Ground 4 is procedurally defaulted and is denied.
Ground 5
In Ground 5, Petitioner claims that the trial court erred in excluding the prior testimony of Roger
Patterson, who testified in a deposition during Petitioner’s first post-conviction proceedings but who
died before Petitioner’s second trial. Doc. 1, pp. 13-14. “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.), cert. denied, 549 U.S. 835 (2006) (citing
Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir.1993)). Petitioner must show that “the alleged
improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial
fundamentally unfair.” Id.
The Missouri Court of Appeals, Southern District, denied Ground 5 as follows:
. . . . On March 27, 2001, Patterson was deposed during [Petitioner’s] civil postconviction proceeding. Patterson died on September 19, 2001. At trial, [Petitioner]
offered Patterson’s deposition from the post-conviction proceeding. The trial court
excluded the deposition, and [Petitioner] filed written offers of proof. [Petitioner] argues
that trial court’s ruling deprived him of his right to present a defense because Patterson’s
testimony would have explained how Cox’s story evolved and impeached Cox’s
testimony that she had no money trouble at the time of the robbery and murders.
....
In [Petitioner’s] brief, he set out the information he sought to use from Patterson’s
deposition . . . .
....
. . . . [Petitioner] claims that it “was crucial to [his] defense that Cox and [her thenboyfriend Alan] Fair were ‘always’ having money problems and ‘always in arrears to
somebody’ ” because “[t]his evidence would have helped the jury connect the dots
pointing to Cox’s culpability....”
The record reflects that Cox was asked, on cross-examination, if she was “broke,”
and she responded “[m]aking bills, making enough for bills.” Cox was also asked similar
14
questions and testified that “[w]e had enough to pay our bills,” and “[w]e didn't have
enough money, barely scraping by, but we didn’t have no extra money.” Although
Patterson described Cox and Fair as having “money problems” and being in “arrears,” he
gave no further information to explain what he meant by those descriptions. The minor
linguistic differences between Patterson’s deposition testimony and Cox’s answers on
cross-examination do not persuade us that the jury would have had a markedly different
understanding of Cox’s financial situation in February 1997 if the deposition had been
admitted. There was sufficient other evidence in the case to support [Petitioner’s]
argument that money concerns could have motivated Cox to commit the crimes for which
[Petitioner] was charged.
The other excerpts of Patterson’s deposition that [Petitioner] discusses are also
cumulative to other evidence in the record. Cox testified that she was friends with
Patterson and that Patterson and another friend picked her up from the hospital after the
events happened. Cox also testified that [Petitioner] gave her $540, and said he would kill
her, her relatives and everybody she knew if she told anyone what had happened. Cox
admitted telling her friends a false story about being kidnapped. Because the evidence
contained in Patterson’s deposition was cumulative to a large quantity of evidence
already in the record, the trial court did not abuse its discretion by excluding the
deposition. Point V is denied.
Wolfe, 344 S.W.3d at 837-39 (alterations added); Doc. 11-15, pp. 24-27.
The state court made a reasonable determination that the trial court did not err in excluding
Patterson’s deposition because the testimony was cumulative to other evidence presented at trial.
Moreover, because the evidence was cumulative and because Petitioner was otherwise afforded a full
opportunity to cross-examine Cox, Petitioner fails to make the necessary showing that the state court’s
error in excluding the evidence had a “substantial and injurious effect or influence in determining the
jury’s verdict,” Yang v. Roy, 743 F.3d 622, 628-29 (8th Cir. 2014); see also Middleton v. Roper, 455
F.3d 838, 857 (8th Cir. 2006) (factors for determining prejudice resulting from trial court error include
“the importance of the witness’s testimony to the entire case, whether the testimony was cumulative,
whether corroborating or contradicting evidence existed, the extent of cross-examination otherwise
permitted, and the overall strength of the prosecution’s case.”).
Because the state court’s determination as to Ground 5 did not result in “a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as determined
15
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), Ground 5 will be denied.
Ground 6
In Ground 6, Petitioner claims that he was denied a full, fair, speedy, and unbiased appellate
review of his convictions because the trial transcript was not properly certified by the court reporter.
Doc. 1, pp. 14-15. As explained by the Missouri Court of Appeals, on July 16 and 17, 2008, the trial
court conducted a hearing on the accuracy of the transcript, at which the court reporter, Margaret Jones,
testified that, although she had previously certified that the transcript she prepared accurately reflected
what occurred at trial, she no longer thought the transcript should have been certified. Wolfe, 344
S.W.3d at 839. Jones claimed some words were missing but was not able to identify any particular part
of the transcript that she believed was in error. Id. Although the trial court entered an order on August
8, 2008, correcting any errors in the transcript and certifying that the transcript as corrected was
accurate, Petitioner continued to assert that there were errors. Id. at 839-40. On August 18, 2008, the
Court of Appeals ordered the trial court to resolve the remaining errors, which it did in its second order
on September 10, 2008. Id. at 840. The corrected certified transcript and legal file were filed with the
Missouri Court of Appeals on September 30, 2008. Id. The Missouri Court of Appeals then denied
Petitioner’s argument regarding the inadequacies of the transcript as follows:
The thrust of [Petitioner’s] argument is that Jones’ testimony during the July 2008
hearing effectively undid her prior certification of the transcript. The trial court did not
accept that argument, nor do we. It was up to the trial court to assess the credibility of
Jones’ testimony and the reasons why she claimed her prior certification was in error.
The trial court did not find Jones believable. Jones’ inability to point out a single error in
the transcript likely played a large part in the trial court’s decision. Given the judge’s
superior opportunity to determine Jones' credibility, we defer to that assessment. State v.
Haslett, 283 S.W.3d 769, 783 (Mo. App. 2009). Once the trial court determined that the
transcript had been properly certified, all other disputes about the correctness of the
transcript were the responsibility of the trial court to settle. See, e.g., State v. Formanek,
16
792 S.W.2d 47, 48–49 (Mo. App. 1990). The judge did so. “Since the trial court has
approved the transcript before us, we accept it as written.” State v. Hughes, 748 S.W.2d
733, 740 (Mo.App.1988).
As noted above, an incomplete record only requires reversal if the defendant is
prejudiced. Skillicorn, 22 S.W.3d at 688. Claims of prejudice must be specific. See State
v. Christeson, 50 S.W.3d 251, 271–72 (Mo. banc 2001); Middleton, 995 S.W.2d at 466.
Here, [Petitioner] merely makes the general allegation that the certified transcript was
inaccurate. [Petitioner] had the opportunity to raise all alleged errors with the trial court.
There is no claim on appeal that the trial court erred in any specific way in ruling on the
issues that [Petitioner] raised. [Petitioner] has not pointed out a single error relevant to
any issue that he raised on appeal. Nor does he claim that an error in the transcript
prevented him from raising other issues that he wished to assert. Based upon this Court’s
own thorough review of the record, our task has not been impeded by any alleged
deficiencies in the certified transcript. In sum, [Petitioner] has failed to meet his burden
of proving prejudice . . . .
Wolfe, 344 S.W.3d at 840-41 (alterations added); Doc. 11-15, pp. 30-31.
The trial court made a reasonable determination that Jones’ testimony did not undo her prior
certification of the transcript and that Petitioner was not prejudiced by any alleged inaccuracies therein.
It appears from the record that any inaccuracies in the transcript were resolved by the state courts and, in
his present petition, Petitioner does not point out a single error in the transcript that deprived him of a
meaningful review on appeal. Doc. 1, pp. 14-15; see Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.
1990) (‘[P]etitioner must state specific, particularized facts which entitle him or her to habeas corpus
relief for each ground specified.”).
Because the state court’s determination as to Ground 6 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” 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), Ground 6 will be denied.
Grounds 7 and 8
In Ground 7, Petitioner claims that trial counsel was ineffective for failing to investigate and
17
present evidence that someone other than Petitioner committed the murders. Doc. 1, pp. 15-16.
In
Ground 8, Petitioner claims that trial counsel was ineffective for failing to call Timothy and Joyce
Whittle as witnesses to impeach Cox’s testimony. Doc. 1, pp. 16-18.
In order for Petitioner to successfully assert a claim for ineffective assistance of trial counsel,
Petitioner must demonstrate that his attorney’s performance “fell below an objective standard of
reasonableness” and that “the deficient performance” actually prejudiced him.
Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). “A 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, 562 U.S. 86, 104 (2011) (quoting Strickland,
466 U.S. at 689). Petitioner must show “that 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.
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. Id. at
694. This Court, moreover, may not grant habeas relief unless the state appellate court’s decision “was
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).
In denying Ground 7, the Missouri Court of Appeals set forth the proposed evidence suggesting
that another individual, Mr. Smith, committed the murders, and denied Petitioner’s claim as follows:
Here, as the motion court found, the evidence presented by [Petitioner] did not
include a witness with “any personal knowledge of [Mr.] Smith murdering [Mr. and Mrs.
Walters] nor could [a witness] place him at the crime scene at any relevant time.” Ms.
Short, Mr. Proctor, and Mr. Tepikian each testified that they investigated and considered
the defense that Mr. Smith was the murderer. . . . .
18
....
The motion court did not clearly err in finding trial counsel’s strategy reasonable.
Trial counsel chose not to present a defense that they regarded as weaker than their other
defenses and would involve presenting a witness they did not regard[] as credible. As the
motion court observed, presenting such a defense would have actually “made the State’s
evidence against [Petitioner] seem stronger by comparison.” None of the evidence cited
by [Petitioner] placed Mr. Smith at the crime scene at the time of the murders. The
absence of such evidence would have emphasized the significance of the tennis shoe-like
print on the kitchen floor that was consistent with the tennis shoes recovered (along with
black nylon pants) from the condominium storage shed after the custodian had seen
[Petitioner] on the morning of February 20 wearing silky nylon pants. The criminalist’s
testimony excluding the .25 caliber handgun possibly associated with Mr. Smith as one of
the murder weapons also supported trial counsel’s strategy of focusing on the weaknesses
in the State’s case instead of trying to prove someone else's guilt by the use of even
weaker evidence.
Because the motion court did not clearly err in finding that [Petitioner] failed to
prove deficient performance, our inquiry ends . . . .
Wolfe, 446 S.W.3d at 747-50 (alterations added); Doc. 12-18, pp. 14-19.
In denying Ground 8, the Missouri Court of Appeals set forth the proposed testimony from
Timothy and Joyce Whittle and denied Petitioner’s claim as follows:
At the evidentiary hearing, Ms. Short recalled that Ms. Whittle seemed “more
credible” than Mr. Whittle. But when Ms. Whittle came to court appearing as she had
been drinking and smelling of alcohol, trial counsel decided that they would not call her
as a witness. Even though Ms. Whittle could have been brought back to court the
following day—when she might or might not have appeared in a better state—Mr.
Tepikian recalled that trial counsel questioned whether they should have even “called her
in the first place” because they were concerned that she would not appear credible after
“an aggressive [c]ross [-]examination].” While Ms. Short thought Ms. Whittle’s
testimony was important, she also thought it important that Ms. Whittle appear credible
to the jury, and Mr. Grothaus had testified that Ms. Whittle had a criminal history of her
own, including a “history with drugs and alcohol.” Ms. Whittle’s credibility appeared in
further doubt due to the condition in which she arrived at court. Based on this evidence,
the motion court could rightly find that trial counsel’s decision not to call her as a witness
constituted reasonable trial strategy, especially when other reasonable trial strategies
remained available and were pursued.
Mr. Tepikian did not remember “the circumstances related to [Mr. Whittle,]” but
he recalled that both of the Whittles had credibility issues. The motion court found that
Mr. Whittle was “not credible.” Mr. Whittle acknowledged at least eight criminal
convictions, and his sworn testimony was internally inconsistent.
19
The motion court did not clearly err in: (1) sharing trial counsel’s belief that Mr.
Whittle was not credible; (2) finding that trial counsel’s decision not to call Ms. Whittle
as a witness after she came to court smelling of alcohol and appearing as though she had
been drinking was not unreasonable; and (3) finding that trial counsel was not ineffective
by choosing not to call either of them as a witness at [Petitioner’s] trial.
When strategic decisions are made by defense counsel after the law and relevant
facts concerning plausible options are considered, they “are virtually unchallengeable[.]”
Strickland, 466 U.S. at 690, 104 S. Ct. 2052; Johnson, 406 S.W.3d at 900.
Wolfe, 446 S.W.3d at 750-52 (alterations added); Doc. 12-18, pp. 19-23.
In holding that Petitioner’s claims of ineffective assistance of trial counsel did not merit postconviction relief, the state appellate court identified and applied reasonably the Strickland standard.
Petitioner fails to establish that it was unreasonable for the state appellate court to find that trial counsel
made reasonable strategic decisions in not presenting evidence that Mr. Smith committed the murders
and not calling Timothy and Joyce Whittle as witnesses. See Blackmon v. White, 825 F.2d 1263, 1265
(8th Cir. 1987) (“[T]he courts must resist the temptation to second-guess a lawyer’s trial strategy; the
lawyer makes choices based on the law as it appears at the time, the facts as disclosed . . . and his best
judgment as to the attitudes and sympathies of judge and jury.”); see also Shaw v. U.S., 24 F.3d 1040,
1042 (8th Cir. 1994) (trial counsel’s reasonable trial strategies cannot constitute ineffective assistance,
even if they are unsuccessful). Finally, insofar as the state courts found that defense counsel were
credible and that Mr. Whittle lacked credibility, credibility determinations are left for the state courts to
decide. Graham, 728 F.2d at 1540.
Because the state court’s determinations as to Grounds 5 and 6 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” 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), Grounds 5 and 6 will be denied.
20
Certificate of Appealability
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) a certificate of appealability is denied; and
(3) this case is dismissed with prejudice.
/s/ Roseann Ketchmark__________
ROSEANN KETCHMARK
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: November 10, 2015 .
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?