Coward v. Wallace

Filing 11

ORDER AND OPINION (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING ISSUANCE OF CERTIFICATE OF APPEALABILITY, AND (3) DISMISSING MATTER WITH PREJUDICE. Signed on 4/13/16 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CRAIG DEON COWARD,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 4:15-CV-00611-ODS

ORDER AND OPINION (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,
(2) DENYING ISSUANCE OF CERTIFICATE OF APPEALABILITY,
AND (3) DISMISSING MATTER WITH PREJUDICE
Pending is Petitioner Craig Deon Coward’s Petition for Writ of Habeas Corpus
filed pursuant to 28 U.S.C. § 2254.

I.

BACKGROUND

The underlying facts were summarized by the Missouri Court of Appeals as
follows:
Coward’s conviction arose from a series of incidents between June
18 and June 22, 2008. Coward and the assault victim, S.C., began dating
in March 2008. On June 18, 2008, after driving around together in S.C.’s
car, S.C. and Coward returned to his residence. When she pulled into the
driveway and started to get out of the car, Coward accused her of sleeping
around and putting methamphetamine in his car. He hit her in the nose
with his fist, causing it to bleed. She begged him to stop. He reached
behind the seat, grabbed a bat, and broke her windshield. As Coward
continued to scream accusations at S.C., he reached between the seats,
pulled out a knife, and slashed the dash of her car. Coward then broke a
compact disc and said that he did not need to use those other items
because the compact disc would work just as well. S.C. testified that she
thought Coward was talking about killing her.
Coward exited the car, came around to the driver’s side, opened
the door, grabbed S.C. by the hair, and dragged her into the house. While
dragging her to his room, he continued to make accusations and beat her
head with his fist. Eventually, Coward left the room. S.C. did not try to
leave because she was scared. When Coward returned, he claimed to

have found more drugs in his car and wanted to know why S.C. was trying
to set him up. Another resident at the house, Becky Wilhelm, observed
Coward hitting S.C. in the face and burning S.C.’s face with a cigarette.
Coward told S.C. to call the Lake Winnebago police department
and make a police report. He was standing next to her, writing down what
she was to say: that Jeremy McAllister, a former resident of the house,
had raped and beat her.
On June 19, the next day, S.C. called in to work and, at Coward’s
direction, told them that McAllister had assaulted her. Also at Coward’s
direction, S.C. called her employer a second time and authorized them to
release her paycheck to Wilhelm. Coward made S.C. go to the bank with
him and Wilhelm to cash the check; Coward kept the money. On that day,
S.C.’s eye was black and swollen, she had two cigarette burn marks on
her face, and she was barely able to move her jaw. S.C. did not try to
leave on June 19 because she was scared, and she did not try to call the
police because she was kept in a room with no telephone.
On June 20, S.C. begged Coward to take her to the doctor because
she thought her jaw was broken. Coward and Wilhelm took S.C. to a
doctor’s office in Harrisonville. Coward told her to say that she had been
beaten by McAllister. The nurse practitioner told S.C. to go to the medical
center for x-rays, but Coward would not let her go and took her back to his
house instead. That evening, S.C.’s best friend came to visit her. Coward
told S.C. her friend was outside and to get rid of her. S.C.’s eyes were
almost swollen shut, she could barely open her mouth, and she had
extensive bruising. Coward followed S.C. out of the house and told S.C.
to tell her friend that McAllister did it. Later, Coward and others took S.C.
to a hotel and left her there for several hours. She did not try to leave
because she was scared. When Coward returned, he accused S.C. of
having someone in the room and starting beating her face and head and
tearing the room apart. After leaving the hotel, Coward continued to beat
S.C. in the car. He then stopped the car and accused S.C. of wearing a
wire. She got out of the car and stripped to show that she was not
wearing one.
On June 22, 2008, S.C. was very weak and sick and begged to go
to the hospital. Coward hit her on the leg with a bat and stepped on
her ankle, knocking her to the floor. S.C. begged Wilhelm to take her to
the hospital. Wilhelm and Coward dragged S.C. into the living room.
S.C. heard the owner of the house ask what happened to her. Coward
told the owner that S.C. had had a seizure and had fallen.
Coward and Wilhelm took S.C. to Research Hospital in Kansas
City. Wilhelm surmised that Coward picked Research to avoid the police.
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S.C.’s eyes were swollen shut; during the drive to the hospital, Coward
told her that, when she got to the hospital, she was to say that McAllister
had assaulted her.
At Research Hospital, S.C. talked to Kansas City, Missouri, police
officers and told them that she had been raped and beaten by McAllister
because that is what Coward told her to say. She also told them that she
had been beaten in a Harrisonville park because Coward told her to say
that. S.C. was interviewed by a Harrisonville detective. She told him that
McAllister caused her injuries, but the detective did not believe her. She
finally told him the truth—that Coward had beaten her for five days and
that he had threatened to kill her and her family. S.C. was in the hospital
for five days and in intensive care for three days. She still had bruises and
swelling when she was discharged. A CT scan revealed that S.C. had a
fractured nasal bone and brain hemorrhaging. Doctors recommended that
she undergo plastic surgery but that she would need to wait at least a year
for her face to heal. At the time of trial, February 18-20, 2009, S.C. still
had not recovered. She had nerve damage in her upper eye, a scar by
her eyebrow, and scars from the cigarette burns.
After Coward was arrested, he spoke to Wilhelm on the telephone
from the jail, and the calls were recorded. The jury heard recordings of
these two calls.
During the first call heard by the jury, Coward told Wilhelm that he
had heard that S.C. had not suffered any broken bones, so that the worst
he could be charged with would be simple battery. In the second phone
call, Coward told Wilhelm to “third party” S.C. into the phone conversation.
Coward told Wilhelm that he did not think that S.C. understood that “they”
were trying to give him “thirty to life.” Wilhelm asked Coward what she
was supposed to say when she made the call, and Coward replied:
“Well…you know…hey…. What happened was f—ked up, or whatever,
but I think probation and maybe some restitution is more than
appropriate.”
During the second phone call heard by the jury, when S.C.
answered her phone, Coward told her that “they” were trying to put him in
prison or thirty years to life over “this.” Coward informed S.C. that he had
told “them” that he would not mind “taking probation, doing all the classes,
paying all the restitution, [and] making sure the bills get paid.” Coward
asked S.C. if that disposition would be acceptable to her. When S.C.
responded, “I guess,” Coward said, “What do you mean, you ‘guess’?
They want to put me in here for thirty to life.” When S.C. said that she was
not sure what she was going to do, Coward said, “I didn’t mean for this to
be like this.” He said, “Can’t I just have the probation, do the classes like
you marked on the sheet, and pay the restitution?”
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After the State rested and Coward’s witnesses testified, Coward’s
attorney asked the trial court to take judicial notice of an ex parte order
that was not on his evidence list. The trial court questioned its relevance.
Coward’s attorney suggested that it was relevant but did not ultimately
pursue the matter further with the trial court. Coward did not testify.
At the close of the evidence and arguments, the jury found Coward
guilty as charged of first-degree domestic assault. The trial court
sentenced Coward to twenty years in the Missouri Department of
Corrections.
Doc. #4-9, at 3-7. Petitioner appealed his conviction to the Missouri Court of Appeals,
and his conviction was affirmed. Doc. #4-9.
Petitioner sought post-conviction relief under Missouri Supreme Court Rule
29.15. He appealed the trial court’s denial of a motion to vacate his conviction, arguing
that his trial counsel failed to investigate the records custodian at UMB Bank as a
potential witness and failed to obtain video surveillance from UMB Bank and Bank
Midwest. Doc. #4-11. Petitioner argued that the video surveillance would have
provided an alibi, raised reasonable doubt that he was the culprit of the alleged
domestic abuse, and would have cast doubt as to the credibility of two of the State’s
witnesses. Id., at 2, 8-16. The Missouri Court of Appeals affirmed the trial court’s
decision. Doc. #4-13, 2-7.
Petitioner articulates three bases for his Petition in this Court: (1) the trial court
erred in failing to take judicial notice of or admit an ex parte order filed by S.C. against
Petitioner; (2) trial counsel was ineffective by failing to reasonably investigate and
present alibi evidence; and (3) trial counsel was ineffective by mentioning Petitioner’s
uncharged prior drug use during cross-examination of S.C. and in closing arguments.
Doc. #1, at 5-8; Doc. #10, at 15-30.

II.

STANDARD

Pursuant to the Antiterrorism and Effective Death Penalty Act (AAEDPA@), which
amended 28 U.S.C. § 2254, a writ of habeas corpus shall not be issued on a claim
litigated on the merits in state court unless the state court’s decision either:

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(1)

resulted 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

(2)

resulted in a 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). The Acontrary to@ and Aunreasonable application@ provisions in the
first subsection have independent meaning. The Acontrary to@ provision applies Aif the
state court arrived at a conclusion opposite to that reached by the Supreme Court on a
question of law, or reached a decision contrary to Supreme Court precedent when
confronting facts that were materially indistinguishable.@ Jackson v. Norris, 651 F.3d
923, 925 (8th Cir. 2011). The Aunreasonable application@ clause applies Aif the state
court correctly identified the governing legal principle, but unreasonably applied it to the
facts of the particular case.@ Id.
Section 2254(d) “limits the applicability of the AEDPA’s deferential standard to
claims that have been ‘adjudicated on the merits’ in state court.” Worthington v. Roper,
631 F.3d 487, 495 (8th Cir. 2011) (citation omitted). Federal courts are “directed to
undertake only a limited and deferential review of underlying state court decisions.” Id.
(quoting Collier v. Norris, 485 F.3d 415, 421 (8th Cir. 2007)). “A federal court may not
issue the writ simply because it concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Id. (internal quotations and
citations omitted).

III.

DISCUSSION

A. Ineffective Assistance of Counsel
Two of the three grounds set forth by Petitioner pertain to trial counsel’s
ineffectiveness. Issues of ineffectiveness of trial counsel are governed by the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). AThis standard requires [the
applicant] to show that his >trial counsel=s performance was so deficient as to fall below
an objective standard of reasonable competence, and that the deficient performance
prejudiced his defense.=@ Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995), cert.
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denied, 517 U.S. 1214 (1996) (quoting Lawrence v. Armontrout, 961 F.2d 113, 115 (8th
Cir. 1992)). This analysis contains two components: a performance prong and a
prejudice prong.
Under the performance prong, the court must apply an objective standard
and “determine whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent
assistance,” Strickland, 466 U.S. at 690, while at the same time refraining
from engaging in hindsight or second-guessing of trial counsel’s strategic
decisions. Id. at 689. Assuming the performance was deficient, the
prejudice prong “requires proof ‘that there is a reasonable probability that,
but for a counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Lawrence, 961 F.2d at 115 (quoting
Strickland, 466 U.S. at 694).
Id. Failure to satisfy both prongs is fatal to the claim. Pryor v. Norris, 103 F.3d 710, 713
(8th Cir. 1997) (stating there is no need to Areach the performance prong if we
determine that the defendant suffered no prejudice from the alleged ineffectiveness@);
see also DeRoo v. U.S., 223 F.3d 919, 925 (8th Cir. 2000). AAn ineffective assistance
of counsel claim is a mixed question of law and fact.@ McReynolds v. Kemna, 208 F.3d
721, 723 (8th Cir. 2000). Consequently, the state courts’ findings of historical fact are
entitled to a presumption of correctness, and their application of Strickland to those
facts must stand unless they applied those standards in an unreasonable manner.

(1) Failure to Present Purported Alibi Evidence
Petitioner argues, as he did during his post-conviction proceedings, that his trial
counsel was ineffective for failing to investigate and present bank surveillance tapes
and withdrawal records from Bank Midwest in Belton, Missouri, and UMB Bank in Lee’s
Summit, Missouri. Doc. #1, at 6; Doc. #10, at 2, 22-23; see also Doc. #4-11. Petitioner
contends the surveillance footage from the ATMs at these banks as well as the
testimony of the bank records custodians would establish he made withdrawals at the
banks during the time he was allegedly confining and assaulting S.C.: June 18, 2008
through June 22, 2008. Doc. #1, at 6; Doc. #10, at 2, 22-23. He argues the evidence
“would have provided at least some viable support to the defense, who could have
argued that the time of the ATM withdrawals did not correspond with the state’s timeline
of events.” Doc. #10, at 23.
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“Counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Worthington, 631 F.3d at
498 (citing Strickland, 466 U.S. at 687-88). There are a variety of circumstances facing
counsel during trial, and a court’s “hindsight is discounted by pegging adequacy to
counsel’s perspective at the time investigative decisions are made, and by giving a
heavy measure of deference to counsel’s judgment.” Id. (citations and quotations
omitted). Accordingly, this Court’s review of the state court’s determination is “twice
deferential: we apply a highly deferential review to the state court decision; the state
court, in turn, is highly deferential to the judgments of trial counsel.” Id. (citations
omitted).
The Missouri Court of Appeals concluded that trial counsel was not ineffective for
failing to obtain video footage from UMB or failing to call records custodians for the
banks. Doc. #4-13, at 4-7. The Missouri Court of Appeals found that Petitioner, at the
evidentiary hearing, failed to present testimony from the bank records custody and
failed to offer ATM records that his trial counsel failed to admit at trial. Id. at 4. Rather,
Petitioner relied upon speculation to support his argument. Id. at 5. The Missouri Court
of Appeals also concluded Petitioner failed to refute the reasonableness of Petitioner’s
trial counsel’s decision to forego additional investigation into the banks’ video footage or
records, and he failed to show prejudice resulting from his trial counsel’s decision not to
obtain video footage or bank records. Id. at 6-7.
This Court must determine whether the decision of the Missouri Court of Appeals
is either contrary to or involved an unreasonable application of clearly established law,
or was “based on” an unreasonable determination of fact. Based upon its review of the
Record and applicable law, the Court concludes the Missouri Court of Appeals applied
the proper standard. That is, the Missouri Court of Appeals analyzed whether (1) “trial
counsel’s performance was deficient because it fell below the level of a reasonably
competent attorney in similar circumstances”; and (2) “this deficiency prejudiced”
Petitioner. Doc. #4-13, at 5; see also Strickland, 466 U.S. at 687-95; Nave, 62 F.3d at
1035. Further, the Court concludes that the decision of the Missouri Court of Appeals
was not based on an unreasonable determination of fact. Thus, this claim is denied.

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(2) Petitioner’s Drug Use
Petitioner contends trial counsel was ineffective by failing to object to and
injecting into evidence Petitioner’s uncharged prior drug use during the crossexamination of S.C. and during closing arguments. Doc. #1, at 8; Doc. #10, at 2, 23-26.
Petitioner concedes this ground was not raised during post-conviction proceeding. Id.
“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). “If a petitioner fails to exhaust state remedies and the court to
which he should have presented his claim would now find it procedurally barred, there is
a procedural default.” Id.
Petitioner argues that pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012), this
claim may still be raised because his post-conviction counsel’s omission of this claim
was ineffective under Strickland, and the omitted claim is substantial and meritorious.
In Martinez, the Supreme Court held that “[w]here, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” 132 S. Ct. at 1320.1
While Martinez recognized this exception, it did not change the rule that
ineffective assistance of post-conviction appellate counsel could not constitute cause to
excuse a state procedural default. Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.
2012) (stating “Martinez offers no support, however, for the contention that the failure to
preserve claims on appeal from a postconviction proceeding can constitute cause.”).
Here, Petitioner’s post-conviction counsel did not raise this issue with the circuit court.
Doc. #4-10, at 8-28. Then, Petitioner’s post-conviction appeal counsel did not raise this
issue with the appellate court. Doc. #4-11. Thus, Martinez does not apply, and
Petitioner fails to establish a cause for his procedural default of this claim.2 Petitioner
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Under Missouri law, ineffective assistance of trial counsel claims cannot be raised on
direct appeal. See State v. Taylor, 1 S.W.3d 610, 612 (Mo. Ct. App. 1999) (citation
omitted).
2
Even if Martinez did apply, Petitioner failed to demonstrate that his trial counsel “fell
below an objective standard of reasonableness” and that “the deficient performance”
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also fails to show that a fundamental miscarriage of justice will result if his defaulted
claim is not considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). As a
result, this claim is denied.

B. Ex Parte Order
Petitioner, as he did on direct appeal, claims the trial court erred in refusing to
take judicial notice of or admit into evidence an ex parte order previously filed by S.C.
against Petitioner. Doc. #1, at 5; Doc. #4-6, at 15-22; Doc. #10, at 15-22. Petitioner
argues the ex parte order would have given a different context to admissions he made
in the two phone calls that were played for the jury at trial. Doc. #10, at 16. Petitioner
contends the admission of the ex parte order would have allowed him to argue that his
admissions during these phone calls (specifically, his references to being placed on
probation, being ordered to take some classes, and pay restitution) were not to the
charged offense, but pertained to the ex parte order. Id.
After the State rested and Petitioner’s witnesses testified, Petitioner’s trial
counsel asked the trial court to take judicial notice of an ex parte order S.C. had filed
against Petitioner. Doc. #4-4, at 151. The trial court inquired as to its relevance, and
trial counsel argued it was relevant to the tape recording that was played to the jury
during trial, during which the boxes that S.C. had checked on the ex parte order were
discussed. Id. at 151-52. The trial court stated: “I understand what you’re trying to do
but you are trying to put in evidence something that could have been asked when the
witness was on the stand. The items you listed are part of the ex parte form. They are
part of all ex parte orders.” Id. at 152. Petitioner’s trial counsel replied with
“[u]nderstood, Your Honor. All right. Thank you, Your Honor.” Id. Trial counsel did not
mark the ex parte order as an exhibit or offer it into evidence.

actually prejudiced him. Strickland, 466 U.S. at 687-88. Petitioner has not established
that his counsel “made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and that there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 687, 694. Thus, there is no merit to
Petitioner’s underlying claim of ineffective assistance of counsel.
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The Missouri Court of Appeals held this evidentiary claim was not properly
preserved for review because Petitioner’s trial counsel did not make an offer of proof.
Doc. #4-9, at 7-8. Thus, the Missouri Court of Appeals could only review the issue for
plain error. Id. at 8. Applying that standard, the Missouri Court of Appeals found there
was no clear error, finding that Petitioner’s trial counsel failed to demonstrate how the
ex parte order was logically or legally relevant to Petitioner’s defense. Id. at 8-9. The
order was not relevant, according to the Missouri Court of Appeals, because it was
merely cumulative of Coward’s statement during the phone call that S.C. had marked
boxes concerning classes and restitution on the ex parte order. Id. at 9. The Missouri
Court of Appeals also noted that although Coward called S.C. as a defense witness at
trial, she was not questioned about the ex parte order and the ex parte was not
introduced through her testimony. Id.
Although the Missouri Court of Appeals addressed this issue based upon state
evidentiary grounds, it did not address Petitioner’s due process claim. Doc. #4-9. That
is, in this matter, Petitioner argues the exclusion of this evidence violated the Sixth and
Fourteenth Amendments of the United States Constitution. Doc. #10, at 16. Petitioner
argues the Missouri Court of Appeals denied him “a crucial, alternative explanation of
his recorded phone conversations….” because “[t]he ex parte order provides plausible
support to the theory that [P]etitioner’s alleged admissions during the phone calls were
unrelated to the charged offense.” Id. Because the Missouri Court of Appeals based its
decision on state evidentiary grounds, this Court may review Petitioner’s constitutional
claim. Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007) (citing Taylor v.
Bowersox, 329 F.3d 963, 967-68 (8th Cir. 2003)) (noting the standard of review is less
deferential when a Missouri court did not adjudicate a federal due process claim). This
Court’s review, however, is limited to whether “the exclusion of this evidence violated
[P]etitioner’s due process rights, regardless of the propriety of the court’s action under
state law.” Sweet v. Delo, 125 F.3d 1144, 1157 (8th Cir. 1997) (citation omitted).
The exclusion of evidence at trial, based upon state evidentiary rules, “results in
the denial of due process only if there was an impropriety so egregious that it made the
entire proceeding fundamentally unfair.” Skillicorn, 475 F.3d at 972 (citing Anderson v.
Goeke, 44 F.3d 675, 679 (8th Cir. 1995)). “To meet this burden, a habeas petitioner
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must show that ‘absent the alleged impropriety the verdict probably would have been
different.” Id. (quoting Anderson, 44 F.3d at 679). Upon review of the Record, the
Court finds that the exclusion of an ex parte order previously filed by S.C. was not an
egregious impropriety, and it did not result in a fundamentally unfair proceeding.
Further, Petitioner has not established that had the ex parte order been admitted, the
verdict probably would have been different. Much evidence, including the testimony of
S.C., established Petitioner had assaulted S.C. several times during the relevant period
of time. Admission of a previous ex parte order filed by S.C. against Petitioner most
certainly would not have resulted in Petitioner being found not guilty. Accordingly, this
claim is denied.

IV.

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).

V.

CONCLUSION

For these reasons, Petitioner=s request for habeas corpus relief pursuant to 28
U.S.C. ' 2254 is denied, the issuance of a certificate of appealability is denied, and this
matter is dismissed with prejudice.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: April 13, 2016

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