Reid v. Wallace

Filing 13

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied; (2) the issuance of a certificate of appealability is denied; and (3) this case is dismissed with prejudice. Signed on April 28, 2016 by District Judge Gary A. Fenner. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JON PAUL REID,
Petitioner,
vs.
IAN WALLACE,
Respondent.

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Case No. 16-0067-CV-W-GAF-P

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, a convicted state prisoner currently confined at the Southeast Correctional
Center in Charleston, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner challenges his 2011 convictions and sentences for first-degree
statutory rape, first-degree child molestation, and first-degree endangering the welfare of a child,
which were entered in the Circuit Court of Boone County, Missouri. Petitioner’s convictions
were affirmed on direct appeal. Doc. 7-7. Petitioner’s motion for post-conviction relief filed
pursuant to Mo. Sup. Ct. R. 29.15 was denied following an evidentiary hearing (Doc. 7-9, pp. 3038) and that denial was affirmed on appeal therefrom (Doc. 7-12).
Statement of Facts
In affirming Petitioner’s convictions, the Missouri Court of Appeals, Western District, set
forth the following facts:
In the fall of 2008, A.R. was ten years old and living in a trailer in Boone
County with her natural mother, M.R.; her adoptive father, Reid; and her four
brothers. Around this time, Reid began sexually abusing A.R. Reid would
frequently have A.R. take her clothes off and would then masturbate in front of
her. The abuse also included oral sex and vaginal intercourse.

In June 2009, because Reid and M.R. were having marital problems, Reid,
A.R., and A.R.'s brothers traveled to Texas to stay with Reid's sister. While in
Texas, Reid continued to sexually abuse A.R. Reid would take A.R. into the
bathroom when nobody was home and have A.R. pose naked while he
masturbated. On a few other occasions, when Reid took A.R. with him to run
errands, he pulled the vehicle over and forced her to perform oral sex on him and
attempted to penetrate her. When Reid's attempts at intercourse were
unsuccessful, he rubbed his penis on A.R.'s vagina until he ejaculated.
After a few weeks in Texas, Reid and the children moved to Arkansas.
While in Arkansas, in addition to the same abuse that took place in Missouri and
Texas, Reid took showers with A.R and attempted anal penetration. On one
occasion, while in the shower, Reid made A.R. urinate on him. Eventually, A.R.
began sleeping with Reid in the master bedroom. A.R. testified that she did not
tell anyone about the abuse because Reid threatened to commit suicide if she told
anyone.
Following a custody hearing in the spring of 2010, Reid was awarded
temporary custody of all five children and M.R. was awarded visitation rights. In
May 2010, pursuant to the temporary visitation order, A.R. and her brothers
returned to Missouri to stay with M.R. for the summer. A few days after returning
to Missouri, A.R. disclosed to M.R. and two of her brothers (“Older Brother” and
“Younger Brother”) that Reid had been abusing her since 2008. A.R. described
multiple incidents of abuse that occurred in Missouri, Texas, and Arkansas. M.R.
contacted the child abuse hotline and later took A.R. to a child advocacy center
for a forensic interview.
On September 24, 2010, Reid was charged with one count of statutory
rape in the first degree, Section 566.032, one count of child molestation in the
first degree, Section 566.067, and one count of child endangerment in the first
degree, Section 568.045, for the acts of sexual abuse he committed against A.R.
in Boone County between June 10, 2008, and June 9, 2009.
Prior to trial, the circuit court denied Reid's motion in limine to exclude, in
pertinent part, evidence concerning the sexual abuse that occurred in Texas and
Arkansas. At trial, A.R. testified with respect to the various incidents of sexual
abuse by Reid in Boone County, Texas, and Arkansas. M.R., Older Brother, and
Younger Brother also testified as to what A.R. told them Reid had done.
Additionally, Older Brother testified that, while living in Arkansas, he saw Reid
sleeping shirtless with A.R. with his arms wrapped around her. Younger Brother
testified that on a few occasions he observed A.R. and Reid spending time
together in the bathroom with the door locked. Younger Brother also testified that
he once heard A.R. crying during the night in Reid's bedroom. After the State
called all of its witnesses, it played a videotape of A.R.'s forensic interview for the
jury. Reid did not object to any of this evidence.

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Reid did not testify; however, he presented testimony from his mother, his
sister, and three employees from A.R.'s elementary school. As presented through
his opening statement, testimony of his own witnesses, cross-examination, and
closing argument, Reid's defense theory was that M.R. made A.R. fabricate the
abuse in an attempt to gain custody of her children.
Doc. 7-7, pp. 3-4.
Before the state court findings may be set aside, a federal court must conclude that the
state court’s findings of fact lack even fair support in the record. Marshall v. Lonberger, 459
U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v.
Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is
Petitioner=s burden to establish by clear and convincing evidence that the state court findings are
erroneous. 28 U.S.C. ' 2254(e)(1).1 Because the state court’s findings of fact have fair support
in the record and because Petitioner has failed to establish by clear and convincing evidence that
the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
Discussion
Petitioner’s sole ground of relief alleges that trial counsel was ineffective during plea
negations for failing to adequately advise Petitioner of the evidence that the State would present
against Petitioner and what evidence trial counsel would present on Petitioner’s behalf. Doc. 1,
p. 5. Petitioner contends that trial counsel told Petitioner that he would introduce into evidence
“twenty-nine items” which “would refute or contradict statements and allegations made by the
State’s witnesses” but failed to do so. Id. Petitioner contends that he rejected the State’s offer
based on trial counsel’s representations. Id. Respondent contends that Petitioner’s ground for
relief is without merit. Doc. 7, p. 3.
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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).

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In order for Petitioner to successfully assert a claim for ineffective assistance of 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, Petitioner must show that there is a reasonable probability
that, but for counsels 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 affirming the denial of post-conviction relief, the Missouri Court of Appeals, Western
District, set forth the Strickland standard and denied Petitioner’s ground for relief as follows:
In denying Reid’s motion, the motion court observed that Reid was the
only witness to testify at the evidentiary hearing and that he did not present trial
counsel’s testimony. The motion court further observed that Reid did not
introduce any of the evidence he claims counsel should have admitted at trial and
that “many of the pieces of evidence that [Reid] claims should have been admitted
were either discussed during various witnesses’ testimony or were admitted at
trial.”
The motion court concluded, “[W]ithout calling trial
must assume that trial counsel’s actions were reasonable
strategic decisions regarding each of these alleged pieces
motion court found Reid’s “testimony to be not credible.”
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counsel, this Court
and that he made
of evidence.” The
It also specifically

found that Reid’s “testimony that he would have accepted the State’s plea offer to
be not credible.” Finally, the motion court concluded that Reid “did not establish
by any credible evidence that his counsel failed to adequately advise him as to the
evidence against him or the risks of trial.” It found that Reid was “simply
expressing ‘buyer’s remorse.’”
The motion court’s finding and conclusions were not clearly erroneous. In
his amended motion, Reid alleged that counsel told him “he could not be
convicted on the prior inconsistent statements” of prosecution witnesses and “he
could prevail at trial with the depositions alone.” He further alleged counsel made
representations that he would introduce certain evidence at trial and that he was
“led to believe that with the above evidence, he would prevail at trial.” Reid’s
testimony was the only evidence presented at the evidentiary hearing to support
these allegations. The motion court, however, found Reid’s testimony was not
credible, and this court “defers to the motion court’s determination of credibility.”
Id. Reid did not present at the evidentiary hearing the evidence that he claims
should have been admitted at trial, and he concedes that some of it was referenced
at trial or admitted into evidence. Furthermore, counsel did not testify about the
advice he gave Reid before trial. . . . . Reid’s testimony was not credible, and no
other evidence established that counsel assured him that the evidence would be
admitted or that he would prevail at trial. Reid failed to overcome the presumption
that trial counsel’s conduct was reasonable and effective and failed to prove his
allegations of deficient performance by a preponderance of the evidence. See
State v. Kreutzer, 928 S.W.2d 854, 874-75 (Mo. banc 1996) (where movant
offered no evidence at evidentiary hearing as to why counsel failed to object to
testimony, movant failed to demonstrate that counsel’s failure to object was not
valid trial strategy); State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996) (by
failing to present any evidence regarding counsel’s failure to object to
prosecutor’s statement during closing argument, movant did not overcome
presumption that the failure to object was a strategic choice by competent
counsel); State v. Booker, 945 S.W.2d 457, 459 (Mo. App. W.D. 1997) (where
movant relied only on trial transcript and did not call counsel at evidentiary
hearing to seek an explanation for absence of objections, movant did not rebut
strong presumption that counsel rendered adequate assistance and provided the
motion court no basis for concluding that counsel did not have a strategic purpose
in deciding not to object). The motion court did not clearly err in denying Reid’s
motion for postconviction relief. The point is denied.
Doc. 7-12, pp. 7-9.
In holding that Petitioner’s claims of ineffective assistance of trial counsel did not merit
post-conviction relief, the state appellate court identified and applied reasonably the Strickland
standard. Id. Insofar as the state courts found that Petitioner’s testimony lacked credibility,

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credibility determinations are left for the state court to decide. Graham, 728 F.2d at 1540.
Because the state courts’ determinations as to Petitioner’s ground for relief 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), Petitioner sole
ground for relief will be denied.
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, 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) the issuance of a certificate of appealability is denied; and
(3) this case is dismissed with prejudice.
/s/ Gary A. Fenner________________
GARY A. FENNER
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: April 28, 2016.

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