Birmingham v. Pash
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 4/3/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
RONDA J. PASH, Warden,
Crossroads Correctional Center,
Case No. 4:16-CV-965-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 Terry Birmingham’s Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2254. Doc. #1. The Court denies the Petition, and declines to
issue a Certificate of Appealability.
The underlying facts were summarized by the Missouri Court of Appeals:
In December 1999, Thomas Brown noticed a man on the porch of a
nearby house, fidgeting with the door. Brown watched the man walk off
the porch and onto the sidewalk, but did not see the front of the man. As
the man was walking away from him, Brown saw an elderly woman come
onto the same porch and heard her scream, “Stop him, stop him, he just
raped me[!]” Brown was too far way to see the woman’s face. The man
began running quickly down the street, so Brown yelled at his daughter,
Heather Zapata, to call 911.
Zapata dialed 911 as she hurried to her neighbor’s aid. Zapata saw
that the victim had been beaten, her mouth was bloody, and she was
hysterical. The eighty-one-year-old victim screamed at Zapata, asking if
the man had been apprehended and stating that she had been raped
repeatedly. After Zapata calmed the victim, Zapata served as a conduit
between the 911 operator and the victim, relaying the victim’s age,
location, name, and what had happened to her.
The police arrived minutes later. Detective David Albers, while
interviewing the victim in her house, noticed that she had swelling and
redness to her face and that her lip was bleeding. The victim was crying
and shaking as she told Detective Albers what had happened. Thereafter,
the paramedics arrived, and the victim told paramedic Kent Jeffries what
had happened to her.
While at the hospital, the victim told the treating physician that she
had been raped and beaten. A nurse collected a rape kit, which included
two vaginal swabs. The nurse also physically examined the victim. The
victim had bruising on her face, neck, hand, and knees and injuries to her
vaginal area that were consistent with trauma. When a detective visited
the victim at the hospital to obtain more details about the assailant, the
victim was withdrawn and provided no additional information. Another
detective visited some days later, but the victim still provided no
assistance for identifying the assailant. A suspect sketch could not be
created with the limited information provided to the police.
Examination of the rape kit revealed sperm cells on one of the
vaginal swabs. Lisa Dowler, a lab technician, conducted DNA testing on
the swab; she concluded that the swab contained the victim’s genetic
profile and the genetic profile of an unknown male. The unknown male’s
profile was placed in the DNA database in 2000. Thereafter, the victim
was notified that the case had been inactivated (closed) because there
were no leads.
In February 2007, the DNA database linked Birmingham to the
unknown male profile. In July 2007, the police interviewed Birmingham,
informing him that he was a suspect in an unsolved crime that occurred in
December 1999. After seeing the picture of the victim’s house but before
the detective told him about the specifics of the unsolved crime,
Birmingham denied hurting an “old lady.” A buccal (inside cheek) swab
was taken from Mr. Birmingham at the conclusion of the interview.
In August 2007, DNA testing was performed on Birmingham’s
swab. The results matched the 2000 genetic profile of the unknown male.
Thereafter, Birmingham was charged with first-degree burglary, firstdegree assault, second-degree robbery, and three counts of forcible
Before trial, counsel requested, and was granted, permission to
independently test the same vaginal swab tested by the technician at
Dowler’s lab. When making arrangements to have the swab transferred to
At a jury trial, the above facts were adduced from several witnesses but not the victim.
The victim had gone missing in 2004 and could not be located.
the defense expert, trial counsel was advised that the vaginal swab he
requested had been completely consumed in the initial testing.
Consequently, counsel was offered the second swab for independent
testing purposes. Counsel accepted the offer to test the second swab, but
the second swab did not contain any semen or epithelial cells. During
trial, when counsel cross-examined Dowler, counsel learned for the first
time that, although the first swab had been consumed, the DNA extracted
from it was still available for retesting. Counsel then sought a mistrial and
a continuance. The trial court denied both, noting that:
swab 2 was provided to the defense with all the other data,
reports, and information regarding the testing of swab 1; that
defense provided that data testing, graphs, reports, etc.,
regarding swab 1 to its expert, as well as the actual swab
No. 2; and that after consulting with its expert obviously felt
there was nothing that was going to be gained by calling that
expert as a witness with respect to the data reviewed on
swab 1, nor on doing further testing regarding swab 2.
The jury found Birmingham not guilty of one count of forcible rape
and second-degree robbery but guilty of one count of forcible rape, firstdegree burglary, and first-degree assault.2 The trial court sentenced Mr.
Birmingham to life imprisonment for forcible rape and thirty years each for
the burglary and assault convictions. The thirty-year terms were ordered
to run concurrent to each other but consecutive to the life sentence.
Doc. #7-11, at 2-4. Petitioner appealed his conviction to the Missouri Court of Appeals,
and his conviction was affirmed. Doc. #7-5; Birmingham v. Mo., 471 S.W.3d 398 (Mo.
Ct. App. 2015).3
Petitioner sought post-conviction relief under Missouri Supreme Court Rule
29.15. Doc. #7-6, at 9-50, and Doc. #7-7, at 1-16. Appointed counsel filed an amended
motion alleging, among other things, trial counsel was ineffective for (1) failing to
request independent testing of the first vaginal swab and DNA obtained from it, and (2)
failing to seek suppression of Birmingham’s statements to an investigative detective.
Doc. #7-8, at 4-83. A hearing was held on Petitioner’s motion. Doc. #7-12. Thereafter,
Petitioner’s motion was denied. Doc. #7-8, at 86-94. Petitioner appealed the court’s
The third rape count was dismissed before trial.
On appeal, Petitioner argued (1) the trial court erred in denying his request for a
mistrial, denying his motion to strike, and overruling his objections to hearsay testimony
concerning DNA testing; and (2) the trial court erred in overruling his objections to the
hearsay testimonies of three witnesses. Doc. #7-2; Doc. #7-5.
decision to the Missouri Court of Appeals, which affirmed the decision. Doc. #7-8, at
96; Doc. #7-11.
Petitioner articulates seven bases for his Petition in this Court: (1) trial counsel
provided ineffective assistance of counsel for failing to call an alibi witness; (2) trial
counsel, appellate counsel, and post-conviction relief counsel provided ineffective
assistance of counsel for failing to conduct independent expert DNA testing on the
victim’s swimsuit; (3) appellate counsel provided ineffective assistance of counsel when
he failed to argue on direct appeal that the trial court erred in not granting a continuance
of the trial date; (4) trial counsel provided ineffective assistance of counsel for failing to
request that the trial court enter an order for independent testing of DNA extracted and
still available for testing; (5) appellate counsel provided ineffective assistance of counsel
for failing to argue on direct appeal that the trial court erred in overruling Petitioner’s
motion for mistrial; (6) trial counsel provided ineffective assistance of counsel when he
failed to file a motion to suppress and request an evidentiary hearing pertaining to
Petitioner’s statements to a detective in July 2007; and (7) appellate counsel and postconviction relief counsel provided ineffective assistance of counsel when they failed to
raise the court’s denial of trial counsel’s motion to withdraw. Doc. #1, at 13-37.
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:
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
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
All of Petitioner’s claims assert ineffectiveness on the part of counsel. 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) (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. United States, 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). The Court concludes a hearing is not
necessary because Petitioner’s claims can be evaluated based on the Record that has
A. Failure to Present Purported Alibi Witness
Petitioner argues trial counsel was ineffective because he failed to “endorse,
subpoena, and call” Sabrina Buffington who would have served as an alibi witness.
Doc. #1, at 13-14; Doc. #13, at 3-7. Respondent contends this ground for relief is
procedurally defaulted because Petitioner did not raise this claim before any state or
federal court. Doc. #7, at 7. Petitioner admits this issue was never raised but contends
the failure to preserve was due to ineffective assistance of appellate and post-conviction
counsel. Doc. #1, at 16; Doc. #13, at 7-10. Judicial economy permits this Court to
address the Petition’s merits and avoid the process of resolving any procedural issues.
See Burkhalter v. United States, 203 F.3d 1096, 1087 (8th Cir. 2000). The Court’s
election to reach the merits should not be construed as a holding that any of Petitioner’s
claims are not procedurally defaulted.
Petitioner contends his current counsel’s professional investigator interviewed
Buffington in August 2016, and at that time, Buffington stated she was with Petitioner on
December 24, 1999, from approximately 5:00 p.m. to 9:30 p.m. Doc. #1, at 13-14.
Buffington states she was available to testify at trial but was never contacted by
Petitioner’s trial counsel. Id. at 14-15. According to Petitioner’s counsel, Buffington
would have testified about Petitioner’s whereabouts that evening, what he was wearing
that evening, and his appearance upon return to their residence later that evening. Id.
Petitioner makes the unsubstantiated claim that three of his siblings provided
information about Buffington to Petitioner’s trial counsel. Id. at 15-16; Doc. #13, at 4.
Here, there is no evidence establishing Petitioner’s investigation into a potential
alibi witness was deficient or was told about Buffington’s existence. Tellingly, Petitioner
spoke at length prior to the commencement of his trial, complaining about his trial
counsel. Doc. #7-1, at 50-56. And the trial judge explicitly invited Petitioner to make a
record of the manner in which his trial counsel tried the case. Id. at 56 (stating “if you
have any records that you want to make or comments that you want to make regarding
counsel or the way the case is being tried, I’ll certainly give you every opportunity to do
that.”). But at no point did Petitioner state his attorney failed to call an alibi witness.
Likewise, in his lengthy pro se post-conviction motion, Petitioner did not state there was
an alibi witness, or his trial counsel failed to call an alibi witness. Doc. #7-8, at 26-78.
And even if Petitioner’s trial counsel was aware of Buffington’s existence,
Petitioner has failed to establish trial counsel’s investigation of this matter was “so
deficient as to fall below an objective standard of reasonable competence. Nave, 62
F.3d at 1035 (citing Strickland, 466 U.S. at 690). 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.” Worthington, 631 F.3d at 498; see
also Middleton v. Roper, 455 F.3d 838, 846 (8th Cir. 2006) (citation omitted) (stating
“[j]udicial scrutiny of counsel’s performance is highly deferential, indulging a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional judgment.”). Here, Petitioner has failed to establish the performance
prong. Moreover, Petitioner has not established a reasonable probability that, but for
counsel’s failure to investigate and call Buffington, the result of the proceeding in this
matter would have been different. For these reasons, this claim is denied.
B. Failure to Conduct Independent Expert DNA Testing
Petitioner claims trial counsel, appellate counsel, and post-conviction relief
counsel provided ineffective assistance of counsel for failing to conduct independent
expert DNA testing of the semen found on the victim’s swimsuit. Doc. #1, at 17-19;
Doc. #13, at 10-11. Respondent argues this claim is procedurally defaulted because it
was not raised on appeal or in post-conviction proceedings. Doc. # 7, at 12-13.
Petitioner concedes this issue was not raised on direct appeal or post-conviction
proceeding but only because of ineffective assistance of appellate and post-conviction
relief counsel. Doc. #1, at 19. As with the first claim, the Court will consider the merits
of the claim.
Petitioner contends an independent DNA analysis should have been conducted
on the victim’s swimsuit, and utilizing the most up-to-date DNA tests, it “would have
provided a more reliable, accurate result.” Doc. #1, at 18. During trial, Linda Netzel,
employed by the Kansas City Police Department Crime Laboratory, testified about her
examination of the victim’s swimsuit. Doc. #7-1, at 173-75. Netzel conducted an acid
phosphatase test on the swimsuit crotch and a prostate specific antigen test, both of
which were positive for semen. Id. at 174, 180. Netzel forwarded a portion of the
swimsuit, along with the vaginal swabs, for DNA testing. Id. at 176.
On the swimsuit, an “RFLP DNA” test was performed, but the lab was unable to
obtain results using the test. Id. at 176, 180-81. Although other technology was
available, the swimsuit was not further tested. Id. at 176, 181.4 Defense counsel asked
Netzel about testing for DNA from the swimsuit crouch versus the vaginal swab. Id. at
182. Netzel testified the “more probative sample” for DNA purposes would be the
vaginal swabs, not the swimsuit, because the sample was obtained from the body cavity
of the victim. Id.
Lisa Dowler, also employed by the Kansas City Police Department Crime
Laboratory, testified she did not perform the STR-PCR test on the swimsuit because a
profile had been obtained from the most intimate sample, the vaginal swab. Doc. #7-1,
at 189-90. The DNA profile resulted in a match with Petitioner’s DNA, and the rarity of
that particular DNA profile was “1 in 800 quadrillion” people. Id. at 191. As she
explained to defense counsel during cross-examination, if a profile had not been
obtained from the vaginal swab, a sample would have been taken from the swimsuit.
Id. at 190. Because a profile was obtained, Dowler chose not to test the swimsuit again.
Id. at 211-12.
Trial counsel testified during the post-conviction hearing that he was provided the
opportunity to test alternate sources of DNA. Doc. #7-12, at 53-54. He chose not to
RFLP and STR-PCR are different types of DNA tests. Doc. #7-1, at 186. RFLP is “a
different technology that’s an older technology that’s pretty much gone away at this
point in time. There’s still some applications for it. But the type of DNA testing that we
use today is much more sensitive. We can get a DNA profile from a smaller sample and
we can get more DNA information in a shorter time period from the testing that we do
retest alternate sources of DNA because results from the retests could not directly
disprove the crime lab’s results. Id. at 53. He chose not to retest the DNA extracts
because the results would have duplicated the State’s results. Id. at 54-55.
Petitioner speculates independent testing “could have provided exculpatory
evidence, which ultimately, would have exonerated” him. Doc. #13, at 18. Petitioner
fails to address the evidence that was admitted at trial – to wit, the DNA profile obtained
from the vaginal swab matched Petitioner’s DNA profile, and the rarity of that profile was
1 in 800 quadrillion people. Petitioner also ignores the fact that independent test could
have introduced new evidence of Petitioner’s guilt and further bolster the State’s case.
Regardless, Petitioner has failed to establish his trial counsel’s performance was
deficient, and he has failed to establish a reasonable probability that, but for counsel’s
failure, the result of the proceeding would have been different. Accordingly, this claim is
C. Failure to Argue the Trial Court Erred in Not Granting A Continuance
Petitioner contends his appellate counsel was ineffective by failing to argue on
direct appeal that the trial court erred in denying a request for a continuance of the trial
after the State disclosed 151 pages of discovery five days before trial. Doc. #1, at 20-1.
Petitioner alleges this particular issue was not raised on direct appeal or post-conviction
appeal due to ineffective assistance of appellate counsel. Doc. #1, at 22-23. The Court
will again address the merits.
On the morning of trial, counsel sought a continuance. The trial court denied
defense counsel’s request. Doc. #7-1, at 54. The trial court noted the State provided a
report on the recertification of the Kansas City Regional Crime Lab. Id. at 54-55. The
trial court found the report was not discovery, and defense counsel had adequate time
to review the certification report and talk to an expert. Id. at 55. The trial court also
stated defense counsel would have the opportunity to cross-examine those witnesses.
During trial, defense counsel cross-examined Dowler about the audit of the crime
lab. Doc. #7-1, at 194-97. He specifically asked about the auditors’ concerns with the
lab failing to seal an outer envelope that contained a sealed glassine envelope
containing the trace evidence. Id. Defense counsel even referred to the audit in closing
argument. Doc. #7-1, at 238.
Once again, Petitioner has failed to establish counsel’s performance was
deficient. Further, he presented no basis as to how he was prejudiced – other than his
speculation that he could have hired an expert who could have compared the crime
lab’s practices with the industry-accepted practices. Petitioner could have hired such an
expert, regardless of whether he received the audit paperwork. As such, there is no
showing of prejudice, and this claim is also denied.
D. Failure to Request the Trial Court Enter an Order for Independent Testing
Petitioner argues trial counsel was ineffective for failing to request the trial court
order independent testing by defense, not only of the vaginal swab but of DNA that had
been extracted from the vaginal swab. Doc. #1, at 24-25. This issue was presented to
the Missouri Court of Appeals. The Missouri Court of Appeals noted “trial counsel did
request independent testing of both swabs, and he had his DNA expert examine and
evaluate all of the lab technician’s notes regarding the DNA analysis performed.” Doc.
#7-11, at 7 (emphasis in original). “[W]hat [trial counsel] failed to do was request
independent examination specifically of the DNA obtained from the first swab.” Id. The
Court of Appeals noted trial counsel’s failure was “apparently due to [his]
misunderstanding of the distinction between testing the swab, itself, and testing the
DNA obtained from the swab.” Id. The Court of Appeals concluded Petitioner did not
demonstrate prejudice from counsel’s alleged error because he still has not conducted
independent testing on the DNA (or failed to present such evidence at the hearing), and
there was no basis for determining the results would be any different from the State’s
results. Id. at 8.
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. 28 U.S.C. § 2254(d). 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, and (2) this deficiency prejudiced Petitioner. Doc. #7-11, at 5-6 (quoting
Strickland, 466 U.S. at 687-94). Further, the Court concludes that the decision of the
Missouri Court of Appeals was not based on an unreasonable determination of fact.
This claim is denied.
E. Failure to Argue the Trial Court Erred in Overruling Motion for Mistrial
Petitioner maintains appellate counsel provided ineffective assistance of counsel
by failing to argue on direct appeal the trial court erred in overruling Petitioner’s motion
for mistrial after Petitioner’s trial counsel learned through cross-examination of the
State’s witness that extracted DNA still existed and was available for retesting. Doc. #1,
at 28-29. Petitioner concedes this issue was not exhausted on appeal or in postconviction proceeding but argues said failure was due to ineffective assistance of
appellate and post-conviction relief counsel. Doc. #1, at 19. As with his first three
claims, the Court will consider the merits of the claim.
During trial, counsel requested a mistrial when one of the State’s witnesses
testified DNA was available for retesting. Doc. #7-1, at 198-203. Prior to trial, counsel
had requested a test of genetic information – specifically, one of the vaginal swabs – but
was told the genetic material was consumed during testing. When told this information,
counsel inferred there was no more DNA available test. But he was informed during
trial there was DNA that could be retested. The Court denied the motion for mistrial. Id.
As with his second claim, Petitioner speculates testing of the DNA could have
resulted in “possible exculpatory evidence.” Doc. #1, at 29. Petitioner fails to address
the DNA evidence admitted at trial, which matched his DNA profile. He also ignores
that retesting the same DNA extract would have culminated, in all likelihood, in the
same result obtained by the State. Petitioner fails to establish his appellate counsel’s
performance was deficient, and appellate counsel’s decision not to raise this issue on
appeal resulted in prejudice. Accordingly, this claim is denied.
F. Failure to File Motion to Suppress
Petitioner also argues trial counsel was ineffective by failing to file a motion to
suppress Petitioner’s statements on July 11, 2007, during an interview with Detective
Gary Snyder. Doc. #1, at 31-33. This issue was addressed by the Missouri Court of
The Missouri Court of Appeals noted Petitioner testified at the evidentiary hearing
that when he met with Detective Snyder “he was in both leg restraints and handcuffs”
and was told detectives wanted to see him. Doc. #7-11, at 9. Petitioner testified he had
no intention of speaking to the detectives and he was “basically forced to talk to them.”
Id. Petitioner claimed at the evidentiary hearing that he asked the detectives if he
needed an attorney, but was assured by the detectives they would get to that later. Id.
Petitioner testified he was not read his Miranda warnings, and the detectives used
intimidation tactics. Id. Petitioner claimed he provided this information to his trial
counsel, and asked his trial counsel to file a motion to suppress. Id. Trial counsel
refused to file a motion to suppress. Id. Petitioner argued this was ineffective
assistance of counsel.
The Missouri Court of Appeals stated “[t]rial counsel…considered filing a motion
to suppress but ultimately chose not do so” because counsel did not see “any realistic
grounds for a motion to suppress based upon the information I had gotten from
[Petitioner] and reading Detective Snyder’s report.” Doc. #7-11, at 8. Trial counsel
noted a motion to suppress would not have been successful unless the trial court
accepted Petitioner’s testimony over the detective’s testimony about what transpired
during the interview. Id. The Court of Appeals concluded Petitioner “was not prejudiced
by counsel’s decision not to seek suppression based upon counsel’s assessment that a
motion was not supportable.” Id. at 10. The Court of Appeals also found Petitioner
“failed to demonstrate that, even if his statements were suppressed, the results of his
trial would have been different in light of the remaining evidence of his guilt.” Id.
As before, 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. 28 U.S.C. §
2254(d). 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, and (2) the
deficiency prejudiced Petitioner. Doc. #7-11, at 5-6, 10 (quoting Strickland, 466 U.S. at
687-94). 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
G. Failure to Raise Motion to Withdraw as Attorney
Petitioner contends appellate counsel and post-conviction relief counsel provided
ineffective assistance of counsel when they failed to argue the trial court erred in
denying counsel’s motion to withdraw on the morning of trial. Doc. #1, at 34-35.
Respondent points out that Petitioner failed to raise this issue on appeal or during his
post-conviction proceeding in state court, and therefore, this claim is procedurally
defaulted. Doc. #7, at 28. Again, the Court will bypass the question of exhaustion and
address the merits of this claim.
On the morning of trial, Petitioner’s counsel sought to withdraw as counsel. Doc.
#7-1, at 49-54. Both Petitioner and his counsel presented argument as to why
Petitioner’s trial counsel should be permitted to withdraw. Id. Upon consideration of
these arguments, the court found defense counsel had “diligently prepared the case,”
“very aggressively pursued the defense,” and had “a lot of the evidence in this case
suppressed.” Id. at 54. The court also noted defense counsel had hired a DNA expert
and obtained a dismissal of another matter filed against Petitioner. Id. Finally, the court
stated there were no complaints about trial counsel until the morning of trial, there was
no breakdown or irreconcilable conflict, and discharging defense counsel on the eve of
trial for insubstantial reasons was inappropriate. Id. As with his other claims, Petitioner
has failed to show his appellate and post-conviction relief counsel were deficient in
failing to raise this issue on appeal or during post-conviction proceedings. In addition,
Petitioner has failed to establish prejudice. Significantly, he has not shown the results
of those proceedings would have been different had this particular issue been raised.
Accordingly, this claim is also dismissed.
CERTIFICATE OF APPEALABILITY
The Court may issue a certificate of appealability only “where a petitioner has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c).
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).
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 3, 2017
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