Davis v. Griffith

Filing 71

OPINION AND ORDER. It is ORDERED the Petition for Writ of Habeas Corpus (Doc. #21), Amended Petition for Writ of Habeas Corpus (Doc. #24), and Supplemental Petition for Writ of Habeas Corpus (Doc. #42) are DENIED. It is furtherORDERED Petitioners motion for discovery (Doc. #62) is DENIED AS MOOT. Signed on 8/30/19 by District Judge Brian C. Wimes. (Baldwin, Joella)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RICHARD D. DAVIS,
Petitioner,
v.
STAN PAYNE, 1
Acting Warden of Potosi
Correctional Center,
Respondent.

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Case No. 4:16-CV-08000-BCW

OPINION AND ORDER
Before the Court is Richard D. Davis’s Petition for Writ of Habeas Corpus (Doc. #21),
Amended Petition for Writ of Habeas Corpus (Doc. #24), and Supplemental Petition for Writ of
Habeas Corpus (Doc. #42). The Court, being duly advised of the premises, denies said petitions
for relief.
BACKGROUND
On July 31, 2008, Petitioner was convicted by a jury in the Circuit Court of Jackson
County, Missouri, of twenty-five felony counts: one count of first-degree murder, Mo. Rev. Stat.
§ 565.020, two counts of kidnapping, Mo. Rev. Stat. § 565.110, two counts of felonious restraint,
Mo. Rev. Stat. § 565.120, three counts of aggravated sexual abuse, Mo. Rev. Stat. § 566.100, nine
counts of forcible sodomy, Mo. Rev. Stat. § 566.060, four counts of forcible rape, Mo. Rev. Stat.
§ 566.030, and four counts of first-degree assault, Mo. Rev. Stat. § 565.050.

1

Stan Payne, Acting Warden of Potosi Correctional Center and Petitioner’s current custodian, is substituted for Cindy
Griffith as Respondent. Fed. R. Civ. P. 25(d).

1

The jury recommended Petitioner be sentenced to death on the first-degree murder
conviction. The Court sentenced Petitioner in accordance with this recommendation. Petitioner
was otherwise sentenced to life imprisonment on each of the remaining counts, except for two
counts of aggravated sexual abuse, for which Petitioner was sentenced to fifteen years’
imprisonment.
At the trial phase, Petitioner was represented by the Missouri State Public Defender
System. Initially, non-capital counsel Curtis Winegarner and Timothy Burdick represented
Petitioner. After October 16, 2006, the date of the State of Missouri’s notice of intent to seek the
death penalty, capital public defenders Thomas Jacquinot and Susan Elliot entered their
appearances on Petitioner’s behalf.2
Petitioner, through appellate public defender Deborah Wafer,3 appealed the trial court’s
findings to the Missouri Supreme Court. The Missouri Supreme Court affirmed Petitioner’s
conviction and sentence on June 29, 2010 and issued its mandate on August 31, 2010. Missouri v.
Davis, 318 S.W.3d 618 (Mo. 2010). Petitioner sought review of the Missouri Supreme Court
decision to the Supreme Court of the United States, but Petitioner’s petition for writ of certiorari
was denied on March 7, 2011. Davis v. Missouri, 562 U.S. 1273 (2011).
On November 23, 2010, Petitioner filed a pro se motion for postconviction relief under
Mo. Sup. Ct. R. 29.15. Public defenders Robert Lundt and Loyce Hamilton4 were appointed to
represent Petitioner for purposes of postconviction relief (“PCR”). PCR counsel filed an amended
petition, with a pro se supplement, on March 1, 2011. On October 1, 2014, the trial court, after
holding evidentiary hearings, denied Petitioner’s PCR motion. (Doc. #24-1).

2

For purposes of this order, the Court refers collectively to Winegarner, Burdick, Jacquinot, and Elliot as “trial
counsel.”
3
For purposes of this order, the Court refers to Wafer as “direct appeal counsel.”
4
For purposes of this order, the Court refers to Lundt and Hamilton as “PCR counsel.”

2

Petitioner appealed the denial of his PCR motion to the Missouri Supreme Court through
public defender Kent Denzel.5 On April 5, 2016, the Missouri Supreme Court affirmed the trial
court’s findings denying Petitioner’s PCR motion. Davis v. Missouri, 486 S.W.3d 898 (Mo. 2016).
The Missouri Supreme Court denied Petitioner’s motion for rehearing on May 24, 2016.
On the same day, Petitioner filed a motion to proceed in forma pauperis in this Court. (Doc.
#1). On June 2, 2016, the Court granted Petitioner’s motion to proceed in forma pauperis in death
penalty habeas action and appointed as Petitioner’s counsel Jennifer Merrigan and Joseph
Perkovich. 18 U.S.C. § 3599(a); (Docs. #3 & #4).
On May 24, 2017, Petitioner filed a petition for writ of habeas corpus (Doc. #21).
Thereafter, Petitioner filed an amended petition (Doc. #24), and a supplemental petition (Doc.
#42). On February 26, 2018, Respondent filed its opposition brief to Petitioner’s filings. (Doc.
#52). On November 9, 2018, Petitioner filed a traverse. (Doc. #61).
Petitioner asserts twelve broad grounds for habeas relief, as follows:
Ground 1: Trial counsel labored under a conflict of interest against Petitioner, in violation
of his right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 2: Trial counsel defaulted the opportunity to establish Petitioner was incompetent
to stand trial, in violation of Petitioner’s right to effective assistance of counsel under the
6th and 14th Amendments.
Ground 3: The trial court, through misstatements of law, violated Petitioner’s right to
proceed pro se in violation of the 5th, 6th, and 14th Amendments, and Faretta v. California,
422 U.S. 806 (1975).

5

For purposes of this order, the Court refers to Denzel as “PCR appellate counsel.”

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Ground 4: Trial counsel failed to object to the trial court’s misstatements of law, in
violation of Petitioner’s right to effective assistance of counsel under the 6th and 14th
Amendments.
Ground 5: Trial counsel provided ineffective assistance during the guilt phase of
Petitioner’ trial, in violation of Petitioner’s right to effective assistance of counsel
under the 6th and 14th Amendments.
Ground 6: Trial counsel erroneously restricted Petitioner’s right to testify during
the guilt phase of the trial, in violation of Petitioner’s right to effective assistance
of counsel under the 6th and 14th Amendments.
Ground 7: Trial counsel failed to investigate, develop, and present compelling
evidence during the penalty phase of Petitioner’s trial, in violation of Petitioner’s
right to effective assistance of counsel under the 6th, 8th, and 14th Amendments.
Ground 8: Trial counsel failed to offer adequate mitigation evidence in response
to the State’s aggravators evidence during the penalty phase of Petitioner’s trial, in
violation of Petitioner’s right to effective assistance of counsel.
Ground 9: Instances of prosecutorial misconduct, individually and collectively,
violated Petitioner’s rights under the 5th, 6th, 8th, and 14th Amendments.
Ground 10: The trial court erred in declining to order that certain parts of
Petitioner’s trial be transcribed for adequate review on direct appeal and postconviction proceedings, and trial counsel was ineffective for failing to ensure the
entirety of the trial transcript was transcribed, in violation of Petitioner’s right to
effective assistance of counsel under the 6th and 14th Amendments.

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Ground 11: The trial court erred in denying Petitioner’s motion to strike juror
Adam Powell for cause, and trial counsel was ineffective for failing to use a
peremptory strike against Powell, in violation of Petitioner’s right to effective
assistance of counsel under the 6th and 14th Amendments.
Ground 12: Direct appeal counsel failed to raise plainly meritorious claims in the
direct appeal of Petitioner’s conviction and sentence to the Missouri Supreme
Court, in violation of Petitioner’s right to effective assistance of counsel under the
14th Amendment.
LEGAL STANDARD
A prisoner in state custody may petition a federal court for a writ of habeas corpus “only
on the ground that [s]he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254.
“Sections 2254(b) and (c) provide that a federal court may not grant such applications
unless, with certain exceptions, the applicant has exhausted state remedies.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011).
Section 2254(d) sets forth an additional limit “[i]f an application includes a claim that has
been adjudicated on the merits in State court proceedings.” Id.
A federal court may not grant habeas relief on a claim that has been ruled on the merits by
a state court unless one of the two conditions are present:
(1) the state court adjudication “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

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(2) the state court adjudication “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.”
Epkins v. Norman, No. 4:11 CV 1546 DDN, 2014 WL 51353, at *4-*5 (E.D. Mo. Jan. 7, 2014)
(citing 28 U.S.C. § 2254(d)(1)-(2)).
Regarding the first circumstance under which a federal court might grant relief under §
2254, a state court decision is contrary to clearly established federal law if it sets forth a conclusion
that is opposite of that reached by the Supreme Court of the United States on a question of law.
Thaler v. Haynes, 130 S. Ct. 1171, 1174 (2010). A state court decision is also contrary to clearly
established federal law if the state court “decides a case different than the [Supreme] Court on a
set of materially indistinguishable facts.” Epkins, 2014 WL 51353, at *5 (citing id.). Additionally,
a state court decision involves an unreasonable application of clearly established federal law where
“the state court identifies the correct governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts” presented under the circumstances
of the petitioner’s case. Id.
Regarding the second circumstance under which a federal court might grant relief under §
2254, a federal court finding the state court’s decision to be based on an unreasonable
determination of the facts must adhere to the following premises: (1) the state court’s factual
findings are presumed correct; (2) the federal court’s review is limited to the record before the
state court that adjudicated the claim on its merits; and (3) habeas relief is proper only if the
petitioner presents “[c]lear and convincing evidence that [the state court’s] factual findings lack
evidentiary support.” Id. (citing 28 U.S.C. § 2254(e)(1); Wood v. Allen, 240 S. Ct. 841, 845
(2010)).

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Under the AEDPA, a federal court may “exercise only limited and deferential review of
underlying State court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). A § 2254
petitioner may obtain federal habeas relief only if he or she shows “that the challenged State court
ruling rested on an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Boyd v. Steele, No. 4:13CV257 CDP, 2016 WL 880389, at *2 (E.D.
Mo. Mar. 6, 2016) (citing Metrish v. Lancaster, 133 S. Ct. 1781, 1786-87 (2013) (quoting
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011))).
ANALYSIS
Petitioner’s claims fall into one of three categories: (1) ineffective assistance of counsel;6
(2) trial court error;7 and (3) prosecutorial misconduct.8 Respondent argues none of Petitioner’s
claims, under the applicable standards implicated by these categories, entitle Petitioner to relief,
or even an evidentiary hearing under § 2254.
A.

Petitioner’s claims are timely filed.

A federal court may only consider a timely petition for relief. Cross-Bey v. Gammon, 322
F.3d 1012 (8th Cir. 2003). A petition for writ of habeas corpus must be filed within one year of
final judgment by the state court. 28 U.S.C. § 2244(d)(1). The limitations period is triggered by
the latest of four events: (1) the date on which the judgment became final by conclusion of direct
review; (2) the date on which the impediment to filing is removed; (3) the date on which the
constitutional right asserted was recognized and made retroactive; and (4) the date on which the
factual predicate was discoverable through due diligence. 28 U.S.C. § 2244(1)(A)-(D). “Section
2244(d)(2) specifies that this limitations period does not include the time during which a properly

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Grounds 1, 2, 4, 5, 6, 7, 8, 10 in part, 11 in part, and 12
Grounds 3, 10 in part, and 11 in part
8
Ground 9
7

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filed application for state collateral review is pending in the state courts.” Payne v. Kemna, 441
F.3d 570, 571 (8th Cir. 2006) (citing 28 U.S.C. § 2244(d)(2)). State collateral review is considered
“pending,” until final resolution through state procedures. Id. (citing Carey v. Saffold, 536 U.S.
214 (2002).
In this case, the Missouri Supreme Court denied rehearing and entered its mandate on
Petitioner’s PCR appeal on May 24, 2016. Petitioner filed the instant habeas petition exactly a year
later, on May 24, 2017. Petitioner’s habeas petition is thus timely filed on the last day of the
limitations period. Payne, 441 F.3d at 571. Further, the Court considers Petitioner’s amended and
supplemental petitions as relating back to the original petition. Fed. R. Civ. P. 15(c).
B.

Petitioner has exhausted state remedies.

“Sections 2254(b) and (c) provide that a federal court may not grant such applications [for
habeas relief] unless, with certain exceptions, the applicant has exhausted state remedies.” Cullen,
563 U.S. at 181. The exhaustion requirement is met if the petitioner “has either fairly presented
his claims first in state court, or if there are no currently available non-futile state remedies.” Smith
v. Bowersox, No. 4:04CV00074 RWS (FRB), 2007 WL 748462, at *4 (E.D. Mo. Mar. 7, 2007)
(citing Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988)). If the petitioner demonstrates
exhaustion through either of these means, the federal court “still may not reach the merits of the
petitioner’s claim unless the petitioner: (1) demonstrates adequate cause to excuse his state court
default, and actual prejudice resulting from the alleged unconstitutional error; or (2) that a
fundamental miscarriage of justice would occur in the absence of federal review.” Smith, 2007
WL 748462, at *4 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

8

Respondent does not dispute Petitioner has exhausted his available state remedies, and the
claims not fairly presented to the state courts are procedurally barred under Missouri law. State ex
rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. 1993).
1. Martinez may apply to excuse procedural default for Petitioner’s
ineffective assistance claims.
Generally, “[a] claim is procedurally defaulted if a habeas petitioner failed to raise it in
state proceedings.” Wooten v. Norris, 578 F.3d 767, 777 (8th Cir. 2012). A petitioner’s failure to
fairly present the substance of each asserted federal ground to the trial and appellate courts at the
state level, including following all state procedural rules for presenting a federal claim to the state
courts, results in a procedural bar to the federal court’s consideration of that claim. Grass v. Reitz,
643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001); Sweet v.
Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997); Coleman, 501 U.S. at 750.
“In order to fairly present a federal claim to the state courts, the petitioner must have
referred to a specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before
the state courts.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997).
Under certain circumstances, procedural default may be excused, “and open the door to
federal review of an applicant’s otherwise defaulted claim.” Wooten, 578 F.3d at 777. “Similarly,
if some impediment external to the applicant is responsible for the omissions in the state-court
factual record or if the applicant can show cause and prejudice regarding the omissions, federal
courts may grant an evidentiary hearing on the merits.” Id. (citing Williams v. Taylor, 529 U.S.
420, 431-32 (2000)).
A petitioner can overcome a claim’s procedural default upon demonstration of “cause for
the default and actual prejudice as a result of the alleged violation of federal law”; or a fundamental
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miscarriage of justice. Coleman, 501 U.S. at 750. Under Coleman, “ineffective assistance of
counsel during state post-conviction proceedings cannot serve as cause to excuse factual or
procedural default.” Wooten, 578 F.3d at 778 (citing Coleman, 501 U.S. 752-55).
In Martinez v. Ryan, the Supreme Court considered “whether a federal habeas court may
excuse a procedural default of an ineffective-assistance claim when the claim was not properly
presented in state court due to an attorney’s errors in an initial-review collateral proceeding.” 566
U.S. 1, 4 (2012). The holding in Martinez creates an exception to a procedural default, as follows:
Where, 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.
Id. at 17. In sum, a habeas petitioner may show cause to excuse the procedural default of a claim
for ineffective assistance of trial counsel if state law allows the claim for the first time on collateral
review,9 and petitioner demonstrates: (1) post-conviction counsel was ineffective under Strickland
v. Washington, 466 U.S. 668 (1984); and (2) the otherwise defaulted claim of ineffective assistance
of trial counsel under Strickland v. Washington “is a substantial one,” meaning that the claim of
ineffective assistance of trial counsel has some merit. Martinez, 566 U.S. at 14.
C.

Petitioner’s claims of ineffective assistance asserted in Grounds 1, 2, 3, 4, 5, 6,
7, 8, 10 in part, 11 in part, and 12 are denied.

Petitioner’s Grounds 1, 2, 3, 4, 5, 6, 7, 8, 10 in part, and 11 in part argue Petitioner is
entitled to § 2254 relief based on ineffective assistance of trial counsel. Petitioner’s Ground 12
also asserts a claim for ineffective assistance of direct appeal counsel. In opposition, Respondent

9

Claims of ineffective assistance of trial counsel cannot be asserted on direct appeal. Missouri v. Taylor, 1 S.W.3d
610, 612 (Mo. Ct. App. 1999).

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argues none of these claims for ineffective assistance are substantial, such that Martinez may not
apply to excuse procedural default.
A claim for ineffective assistance of counsel arising under the 6th and 14th Amendments
is assessed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
To establish a right to relief under Strickland, a petitioner must show the following: (1) deficient
performance; and (2) prejudice. 466 U.S. at 688.
Counsel’s representation is considered deficient if it falls below an “objective standard of
reasonableness.” Id. Counsel has “a duty to bear such skill and knowledge as will render the
proceeding a reliable adversarial testing process.” Strickland, 466 U.S. at 688. The requisite skills
include knowledge of the law; “[a]n attorney’s ignorance of a point of law that is fundamental to
his case combined with his failure to perform basic research on that point is a quintessential
example of unreasonable performance . . . .” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
“To establish prejudice, the defendant must show that there is a reasonable probability that
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. “The question is not whether the defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).
The same general standards apply to appellate counsel: “where there is a reasonable
probability that the neglected claims would have succeeded on appeal . . . counsel’s failure to raise
the claim falls outside the range of reasonably competent assistance.” Claudio v. Scully, 982 F.2d
798, 799 (2d Cir. 1992).

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1.

Ground 1:

Conflict of interest

Petitioner argues ineffective assistance based on an asserted conflict of interest arising from
his trial counsel’s representation of another individual, which undermined Petitioner’s relationship
with counsel in light of Petitioner’s known mental health issues. Respondent argues, first, this
claim is procedurally defaulted. Second, Respondent argues this argument is predicated on a
determination of Petitioner’s legal incompetence, which is contrary to the state court’s
determination that Petitioner was competent to stand trial.
Petitioner presented the issue of a “broken relationship” with counsel to the PCR court.
The PCR court rejected this issue on the basis that Petitioner did not provide factual support for
the claim. (Doc. #24-1 at 506). While Petitioner appealed the PCR ruling, appellate counsel did
not ask the Missouri Supreme Court to consider whether the PCR court erred in denying
Petitioner’s claim that was premised on a broken relationship with counsel, and/or any other
alleged conflict of interest. (Doc. #24-1 at 1207-16).
Section 2254(c) requires that a state court have a fair opportunity to consider a petitioner’s
claims for violation of federal law. Castille v. Peoples, 489 U.S. 346, 349-50 (1989). A state
prisoner “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.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
Because Petitioner did not present this claim of conflict of interest and/or broken
relationship with counsel during appellate review of the denial of his PCR motion, this claim is
procedurally defaulted.
Petitioner argues, notwithstanding, Martinez applies to excuse procedural default on the
issue of trial counsel’s conflict of interest. However, Martinez is a narrow exception that applies

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in instances of ineffective assistance of PCR counsel. In this case, Petitioner essentially asks the
Court to extend Martinez to excuse procedural default based on ineffective assistance of appellate
PCR counsel. The Court declines to extend Martinez to excuse procedural default relating to
instances of ineffective assistance of PCR counsel. However, for the sake of discussion, the Court
considers whether Petitioner has made a substantial showing of ineffective assistance of trial
counsel based on a conflict of interest.
“The Sixth Amendment right to counsel embraces the right to conflict-free counsel.”
Dawan v. Lockhart, 31 F.3d 718, 720-21 (8th Cir. 1994). Generally, the issue of conflict of interest
arises in circumstances where more than one defendant, in the same case, is represented by the
same counsel or office. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980); Holloway v. Arkansas, 435
U.S. 475, 481-84 (1978). “In order to establish a violation of the Sixth Amendment, a defendant
who raised no objection at trial must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” Cuyler, 446 U.S. at 1718. An actual conflict of interest is one
which requires the active “representat[ion] of conflicting interests . . . .” Id. “Thus, a defendant
who shows that a conflict of interest actually affected the adequacy of his representation need not
demonstrate prejudice in order to obtain relief.” Id. (citing Holloway, 435 U.S. at 487-91).
In this case, Petitioner asserts trial counsel harbored a conflict of interest against Petitioner,
which affected the adequacy of counsel’s representation, such that prejudice is assumed. However,
from the Court’s review of the record, the specific conflict at issue is not set forth in any
meaningful way. Petitioner argues trial counsel labored under a conflict of interest because
difficulties in working with Petitioner, due to his mental illness, undermined trial counsel’s ability
to represent Petitioner’s interests. In the absence of legal authority to bolster this assertion and/or
evidence to identify the specific asserted conflict, the Court concludes Petitioner has not

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demonstrated that an actual conflict of interest affected trial counsel’s representation. As a result,
Petitioner has not shown a substantial claim of ineffective assistance with respect to trial counsel,
and in turn, cannot establish ineffective assistance with respect to PCR counsel, appellate or
otherwise. Consequently, Martinez does not provide an exception to procedural default under these
circumstances, and the Court may not consider the merits of this claim. Ground 1 is denied.
2.

Ground 2:

Failure to challenge competency

Petitioner argues ineffective assistance because trial counsel failed to timely raise, and/or
investigate, the issue of Petitioner’s lack of legal competence to stand trial. Respondent argues this
claim is procedurally defaulted, and if it is not, the Missouri Supreme Court’s finding of
competence for trial on PCR review is entitled to deference.
The Missouri Supreme Court considered, on PCR appeal, whether trial counsel was
ineffective for failing to present testimony from Dr. Logan to present the issues of Petitioner’s lack
of competence to stand trial and/or diminished capacity. The Missouri Supreme Court concluded
Petitioner did not demonstrate that but for trial counsel’s failure to present testimony from Dr.
Logan, Petitioner would have been found incompetent and/or would have received a different
sentence.
Because Petitioner raised the issue of competency, at least as it relates to trial counsel’s
failure to present evidence from Dr. Logan, to the state courts, this aspect of the claim is not
procedurally defaulted, and is not procedurally defaulted. By contrast, to the extent Petitioner
argues ineffective assistance based on trial counsel’s failure to timely challenge Petitioner’s
competency according the schedule set by the trial court, and/or otherwise attempt to challenge
Petitioner’s competency out of time, Petitioner’s claim is procedurally defaulted. The Court thus

14

considers whether Martinez might apply to excuse procedural default with respect to the timing
aspects of the instant claim for ineffective assistance.
Even if, for purposes of determining whether procedural default is excused on these aspects
of Petitioner’s claim, the Court cannot conclude Petitioner’s claim of ineffective assistance against
trial counsel is substantial. Petitioner cannot establish the prejudice prong of Strickland because
the Missouri Supreme Court determined Petitioner did not demonstrate he was not competent to
stand trial. Davis v. Missouri, 486 S.W.3d 898, 909-12 (Mo. 2016). Therefore, because Petitioner
does not present a substantial claim of ineffective assistance of trial counsel on timing aspects of
this claim, Martinez does not apply to excuse procedural default, and this portion of the claim is
denied.
Regarding the portion of this ineffective assistance claim that is not procedurally defaulted,
the Missouri Supreme Court found Petitioner did not demonstrate that but for trial counsel’s failure
to establish incompetence through Dr. Logan, the result of the trial proceedings would have been
different. The Court, having reviewed the record, concludes the Missouri Supreme Court does not
involve an unreasonable application of federal law or a decision based on an unreasonable
determination of the facts. This point is denied.
3.

Ground 4:

Failure to object

Petitioner argues ineffective assistance based on counsel’s failure to object to the trial
court’s statements relating to Petitioner’s right to proceed pro se at trial. Respondent argues this
claim is procedurally defaulted, and to the extent it is not, Petitioner cannot show a substantial
claim of ineffective assistance such that Martinez might apply to excuse the default.
Consistent with the subsequent discussion below, this Court defers to the Missouri
Supreme Court’s determination that no Faretta violation occurred relative to the trial court

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statements about the resources available should Petitioner decide to represent himself.
Consequently, Petitioner has not demonstrated a substantial instance of ineffective assistance on
the part of trial counsel, and the Martinez exception to procedural default does not apply to this
claim. Petitioner’s claim of ineffective assistance based on a failure to object to the trial court’s
asserted misstatements of law about Petitioner’s rights if he proceeded pro se are procedurally
defaulted. This point is denied.
4.

Ground 5:

Failure to present adequate guilt-phase evidence

Petitioner challenges trial counsel’s presentation of evidence during the guilt phase of
Petitioner’s trial under United States v. Cronic, 466 U.S. 648, 655-56 (1984), arguing trial
counsel’s defense at trial was so deficient as to amount to a constructive denial of counsel,
specifically with respect to Petitioner’s mental state. Respondent argues this claim is procedurally
defaulted, and to the extent it is not, the Missouri Supreme Court is entitled to deference.
As mentioned above, Petitioner presented, and the Missouri Supreme Court rejected,
claims of ineffective assistance for trial counsel’s failure to: (i) present evidence through Dr. Logan
of Petitioner’s legal incompetence to stand trial during the guilt phase; (ii) present a diminished
capacity defense owing to Dr. Logan’s diagnosis of bipolar I disorder during the penalty phase.
While the instant Cronic claim overlaps aspects of the claims presented on PCR review, Petitioner
seeks relief based on an asserted overarching failure of trial counsel to defend Petitioner against
the charges against him. Because Petitioner did not present the same theory of PCR relief for
review at the state level, Petitioner’s Cronic claim is procedurally defaulted. However, the Court
considers whether Martinez might operate to excuse procedural default.

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The dispositive issue to apply Martinez is whether Petitioner’s trial counsel was ineffective
for their guilt phase presentation at trial, such that PCR counsel was ineffective for failure to
present a Cronic claim. 566 U.S. at 17.
There is no requirement that PCR counsel raise every non-frivolous claim; rather, counsel
should rely on his or her professional judgment to focus on the most important issues. Jones v.
Barnes, 463 U.S. 745, 751-52 (1983). On PCR review, counsel presented claims for ineffective
assistance of trial counsel based on the failure to present evidence of Petitioner’s inability to form
the requisite state of mind to commit first degree murder. The Missouri Supreme Court rejected
these claims.
A Cronic claim does not require a separate showing of prejudice; rather, prejudice is
assumed based on deficient performance so egregious that it is equivalent to no assistance of
counsel at all. Id. PCR counsel’s failure to make such a claim, wherein prejudice is assumed, in
favor of several claims of ineffective assistance of counsel under Strickland wherein prejudice is
not a foregone conclusion, suggests counsel’s assessment that a Cronic ineffective assistance claim
had a lesser chance for success than the claims ultimately presented on PCR review. Because the
Missouri Supreme Court rejected each of PCR counsel’s claims of ineffective assistance of counsel
under Strickland, it is not reasonable to expect the Missouri Supreme Court would have granted
relief under Cronic. Moreover, trial counsel’s decisions relating to trial strategy, like what evidence
to present, are “virtually unchallengeable.” Strickland, 466 U.S. at 689. Therefore, the Court
declines to find ineffective assistance of counsel on the grounds that PCR counsel did not present
a Cronic claim to the state court, and Martinez does not apply. This point is procedurally defaulted
and denied.

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5.

Ground 6:

Failure to protect right to testify

Petitioner argues ineffective assistance based on trial counsel’s failure to protect
Petitioner’s right to testify in his own defense during the trial’s guilt phase. Petitioner argues the
record suggests Petitioner wanted to testify but was improperly discouraged from doing so by the
trial court, and trial counsel was ineffective in failing to object to the misstatements of law and
protect Petitioner’s interests. Respondent relies on Petitioner’s concession that this theory was not
raised in association with Petitioner’s PCR appeal, though PCR appellate counsel ask the Missouri
Supreme Court to review for plain error whether the trial court erred in discussing Petitioner’s
right to testify.
Petitioner concedes PCR counsel did not assert a claim of ineffective assistance relating
Petitioner’s right to testify at trial in seeking review of the denial of PCR relief; rather, the PCR
appeal sought plain error review of the trial court’s statements. Because this claim was not
presented in the initial PCR motion, this claim is procedurally defaulted. Joubert v. Hopkins, 75
F.3d 1232, 1240 (8th Cir. 1996).
Petitioner argues Martinez excuses procedural default of this ineffective assistance claim.
The Court thus considers whether Petitioner has demonstrated a substantial claim of ineffective
assistance of trial counsel.
A criminal defendant has a constitutional right to testify in his or her own defense. Frey v.
Schuetzle, 151 F.3d 893, 897-98 (8th Cir. 1998). Only the defendant, and not the court or counsel,
can waive that right. Id. A defendant’s waiver of the right to testify must be knowingly and
voluntarily made. Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). The Court may, however,
impose reasonable restrictions on a defendant’s right to testify, like limiting the format of
defendant’s testimony. State v. Couch, 256 S.W.3d 64 (Mo. 2008) (requiring question and answer

18

format of testimony is constitutional). Further, counsel may, without violating a defendant’s right,
advise him or her against testifying as a matter of reasonable trial strategy. Whitfield v. Bowersox,
324 F.3d 1009, 1016-17 (8th Cir. 2003).
In this case, Petitioner argues although Petitioner waived his right to testify at trial, the
record demonstrates the trial court unconstitutionally discouraged him from taking the stand, and
colluded with the defense team to discourage Petitioner from testifying. To the contrary, however,
the record suggests that while Petitioner repeatedly indicated a desire to be heard, Petitioner did
not wish to have his testimony limited to his answering questions posed by trial counsel. A criminal
defendant’s constitutional right to testify does not include the right for the defendant to talk directly
to the jury without any confines imposed by the court. Couch, 256 S.W.3d at 64. Consequently,
the Court cannot find trial counsel was ineffective for failing to object or otherwise act better
protect Petitioner’s right to testify. Because Martinez does not excuse the procedural default of
this claim, this Court may not consider this claim’s merits and the point is denied.
7.

Ground 7:

Failure to present adequate penalty-phase evidence

Petitioner argues ineffective assistance based on trial counsel’s failure to investigate and
present compelling evidence during the penalty phase of Petitioner’s trial. Petitioner identifies the
following specific instances of ineffective assistance of trial counsel during the penalty phase: (1)
unreasonably deficient investigation; (2) unreasonably deficient presentation of mitigators; (3)
failure to develop evidence of multi-generational familial sexual abuse, trauma, sexual
dysregulation, violence, and chaos; (4) unreasonably deficient presentation of Petitioner’s
physical, emotional, and sexual abuse, including preparing Petitioner to testify; (5) unreasonably
deficient development and presentation of Petitioner’s abuse as an adult inmate; (6) unreasonably
deficient development of mental health evidence and preparation of mental health experts Drs.

19

Mandracchia and Logan; (7) failure to call a prison conditions expert; (8) failure to redact witness
interview memos; and (9) failure to consult Petitioner about his penalty phase testimony.
Respondent concedes these issues, or at least some variation thereof, were raised during
Petitioner’s PCR proceedings.
Construing Petitioner’s PCR petition broadly, each of these issues were presented to, and
rejected by the state court, such that they are not procedurally defaulted. Based on the parties’
arguments and the record with respect to each of the evidentiary deficiencies asserted, the Court
finds no basis for the conclusion that the determinations of the Missouri Supreme Court on these
points are contrary to, or involved an unreasonable application of federal law, or resulted in a
decision that is based on an unreasonable determination of the facts. Petitioner is not entitled to
relief based on trial counsel’s penalty phase presentation and this point is denied.
8.

Ground 8:

Failure to answer aggravators

Petitioner argues ineffective assistance for trial counsel’s failure to object testimony from
Tammy Butler and Mickey Bryant that amounted to improper victim impact evidence, and failure
to otherwise present mitigation evidence in opposition to the State’s aggravating evidence.
While PCR counsel raised issues of ineffective assistance during the penalty phase of
Petitioner’s trial, none of the claims for ineffective assistance at the PCR stage relate to Petitioner’s
co-defendant sexually abusing her own children and/or counsel’s failure to present Petitioner’s
history as a victim of sadistic sexual abuse. Thus, these claims are procedurally defaulted unless
Martinez excuses default in equity.
Procedural default of this claim is excused under Martinez only upon a showing that PCR
counsel was ineffective for failing to argue trial counsel was ineffective for, during the penalty
phase, failing to present an adequate mitigation case. With respect to evidence of Petitioner’s co-

20

defendant’s sexual abuse of minors, Petitioner and his co-defendant were both involved in the
sexual abuse of a minor immediately before their arrest. The minor child’s father testified during
the penalty phase. Trial counsel’s failure to present evidence of Petitioner’s girlfriend’s history of
sexual abuse of minors alongside testimony from the father of a minor child who Petitioner and
his co-defendant girlfriend both sexually victimized is not a decision that falls below an objective
standard of reasonableness under Strickland. Additionally, ineffective assistance of trial counsel
may not rest in counsel’s failure to adduce cumulative evidence; trial counsel presented evidence
of Petitioner’s history as a victim of sexual abuse at trial. Forrest v. Steele, 764 F.3d 848, 857 (8th
Cir. 2014) (failure to present cumulative evidence is not deficient performance). Consequently,
Petitioner has not demonstrated a substantial claim of ineffective assistance of trial counsel, such
that Martinez does not provide an avenue to excuse procedural default. This point is denied.
9.

Ground 10:

Failure to ensure a complete record

Petitioner argues ineffective assistance based on trial counsel’s failure to ensure that the
entirety of the trial court proceedings was transcribed and available for appellate and postconviction review. Petitioner specifically points to the lack of transcriptions of the trial court
reading the jury instructions, jury polling, the first three days of jury selection, and certain bench
conferences. Respondent argues this claim is procedurally defaulted and, even if Martinez provides
an exception, this claim lacks merit.
This claim of ineffective assistance for counsel’s failure to object to the lack of and/or insist
upon a complete transcript was not presented to the state court during PCR review. Therefore, this
claim of ineffective assistance is procedurally defaulted unless, as Petitioner asserts, the Martinez
exception applies. This Court may consider the merits of this ineffective assistance argument if

21

PCR counsel was ineffective for not arguing trial counsel was ineffective for failing to ensure a
complete trial record.
“[A]n otherwise valid conviction should not be set aside if the reviewing court may
confidently say, on the whole record, that the constitutional error was harmless beyond a
reasonable doubt.” Becht v. United States, 403 F.3d 541, 547 (8th Cir. 2005). “A narrow class of
errors – defects affecting the framework within which the trial proceeds, rather than simply an
error in the trial process itself – are considered structural errors that require automatic reversal” Id.
Structural errors include “complete denial of counsel, a biased judge, racial discrimination in jury
composition, denial of a public trial, and a defective jury instruction on the reasonable-doubt
standard of proof.” Id. (citing Neder v. United States, 527 U.S. 1, 8 (1999). “A constitutional error
is either structural or it is not.” Id.
To the extent Petitioner argues he is entitled to relief due to structural error owing to a lack
of complete transcript, this claim is procedurally defaulted. Martinez applies to excuse procedural
default only if PCR counsel, both appellate and otherwise, were ineffective for failing to raise the
issue of structural error based on an incomplete transcript to the state courts. Under the
circumstances presented in this case, Petitioner cannot establish the prejudice element of the
Strickland standard. Petitioner asserts an inability to determine whether or how he was prejudiced
by counsel’s ineffective assistance at the PCR stage because the record does not provide a complete
view of every aspect of the trial; however, the Court may not grant habeas relief on the asserted
possibility that a constitutional error occurred. Based on Petitioner’s arguments that the aspects of
the trial that were not transcribed could potentially underpin a claim for ineffective assistance,
without presentation of any actual prejudice, the Court finds Petitioner has not set forth a

22

substantial claim of ineffective assistance as required by Martinez. Therefore, this claim is
procedurally defaulted and is denied.
10.

Ground 11:

Failure to strike Adam Powell

Petitioner argues ineffective assistance against trial counsel for failure to use a peremptory
strike against juror Adam Powell. Respondent argues this claim is procedurally defaulted to the
extent Petitioner asserts ineffective assistance, and even if Martinez applies to excuse procedural
default, Petitioner is not entitled to relief because the Missouri Supreme Court found on direct
appeal that the trial court did not err in denying trial counsel’s motion to strike Powell for cause,
and this finding is entitled to deference.
On direct appeal, counsel argued the trial court erred in denying defense counsel’s motion
to strike Powell for cause. As discussed in more depth below, the Missouri Supreme Court
considered and rejected the argument. Petitioner’s PCR counsel at the circuit or appellate level did
not asset a claim relating to Powell’s presence on the jury. Therefore, the ineffective assistance
argument relating to counsel’s failure to use a peremptory strike against Powell is procedurally
defaulted. Petitioner does not argue, and the Court does not find, that Martinez applies to excuse
procedural default with respect to this argument. This point is denied.
11.

Ground 12:

Ineffective assistance against direct appeal counsel

Petitioner sets forth three assertions of ineffective assistance with respect to direct appeal
counsel: (1) failure to raise conflict of interest; (2) failure to raise the issue of an incomplete
transcript; and (3) failure to raise the issue of the trial counsel’s misstatements with respect to
Petitioner’s right to proceed pro se.
Petitioner did not raise claims of ineffective assistance with respect to his direct appeal
counsel in his PCR motion, nor on appellate review of the PCR motion. Therefore, because the

23

state court did not have the opportunity to consider Petitioner’s claim of ineffective assistance
against direct appeal counsel, this claim is procedurally defaulted. O’Sullivan, 526 U.S. at 845.
Although Petitioner argues Martinez provides for an exception to procedural default in the
context of claims for ineffective assistance, the Eighth Circuit has found the Martinez exception
to procedural default is limited to claims of ineffective assistance relative to trial counsel only.
Dansby v. Hobbs, 766 F.3d 809, 833 (2014) (collecting cases). Moreover, even if Martinez did
allow the Court to review Petitioner’s ineffective assistance claims relative to direct appeal
counsel, the record does not establish ineffective assistance with respect to trial counsel with
respect to the three factual predicates set forth. Ground 12 is denied.
D.

Petitioner’s claims of trial court error alleged in Grounds 3, 10, and 11 are
denied.

In Grounds 3, 10, and 11, Petitioner argues he is entitled to relief under § 2254 due to error
on the part of the state court trial judge. In Ground 3, Petitioner argues the trial judge coerced him
into waiving his right to self-representation through misstatements of the law. In Count 10,
Petitioner asserts the trial court judge erred in failing to ensure that the entirety of the state trial
court proceedings were transcribed for purposes of a complete record. In Count 11, Petitioner
argues the trial court judge erred by denying counsel’s motion to strike for cause juror Adam
Powell.10
1.

Ground 3:

Misstatements leading to waiver under Faretta

Petitioner argues trial counsel coerced him into waiving his right to represent himself in
violation of the 5th, 6th, and 14th Amendments, and Faretta v. California, 422 U.S. 806, 835
(1975). Petitioner specifically identifies three trial court statements which misled Petitioner into
proceeding with his appointed trial counsel, Thomas Jacquinot and Susan Elliot, as follows: (1)
10

The dimensions of Grounds 3, 10, and 11 that argue ineffective assistance of counsel are discussed separately.

24

under the Missouri Supreme Court rules, the trial court was required to appoint standby counsel;
(2) the trial court would appoint, as standby counsel, Petitioner’s existing counsel; and (3) in the
event Petitioner exercised his right to represent himself at trial, the trial court lacked the authority
to allocate resources to assist Petitioner in defending himself. Petitioner argues the Missouri
Supreme Court’s decision on this claim is not entitled to deference because although the Missouri
Supreme Court considered whether a Faretta violation occurred, the Missouri Supreme Court
failed to consider whether “the trial court’s misstatements regarding its authority to order the relief
sought . . . .” violated Petitioner rights.
Respondent argues this claim is procedurally defaulted with respect to the first two
misstatements by the trial court. With respect to the third misstatement by the trial court,
Respondent argues the Missouri Supreme Court’s findings on this misstatement are entitled to
deference.
The Court first considers whether Petitioner has demonstrated exhaustion of state remedies
for this claim. To the extent the first two misstatements are asserted as independent grounds for
relief based on trial court error, this claim is procedurally defaulted. Petitioner argues, however,
the first two misstatements represent factual underpinnings illustrating how Petitioner’s waiver of
the right to represent himself was not made knowingly and with full information, such that the trial
court’s statements amounted to coercion in violation of Petitioner’s rights.
Petitioner’s direct appeal counsel raised, and the Missouri Supreme Court denied,
Petitioner’s claim of error on the trial court’s misstatement that resources would only be available
to Petitioner if he continued to be represented by appointed counsel. The Court thus finds this
claim fairly presented at the state level, such that the exhaustion requirement is met.

25

The second issue is whether habeas relief is appropriate under § 2254(d). This Court must
determine whether the adjudication of the Missouri Supreme Court resulted in decision that is
contrary to Supreme Court precedent, or whether the adjudication is based on an unreasonable
determination of the facts. 28 U.S.C. §2254(d).
Petitioner argues the decision of the Missouri Supreme Court is not entitled to deference
because the Missouri Supreme Court failed to address whether Petitioner’s rights were violated
under Faretta when the trial court misstated its authority to order resources for Petitioner if he
decided to proceed pro se.
In the Court’s view, Petitioner seeks to create a distinction without a difference. Petitioner
argues the Missouri Supreme Court considered whether the trial court’s misstatement about the
resources available to a pro se defendant violated Faretta; as opposed to considering whether the
trial court’s misstatement about the court’s authority to make resources available to a pro se
defendant violated Faretta. The Court thus defers to the decision of the Missouri Supreme Court
and declines to disturb the determination that the trial court’s colloquy met the requirements of
Faretta. Ground 3 is denied with respect to the assertion of trial court error.
2.

Ground 10:

Trial court’s failure to ensure a complete record

Petitioner asserts a right to relief on the basis that the trial court failed to order the entirety
of the trial court record be transcribed. Specifically, Petitioner argues the trial court erred in
ensuring a complete record for adequate review because the trial transcript lacks the first three
days of jury selection, the jury instructions, numerous bench conferences, and jury polling.
Respondent argues this claim is procedurally defaulted.
Petitioner argues the incomplete trial record in this case amounts to structural error. A
structural error is one that “affect[s] the framework within which the trial proceeds,” as opposed

26

to an error in the trial process. Arizona v. Fulminante, 499 U.S. 279, 310 (1991). This Court,
however, may not consider the merits of Petitioner’s claim relative to the trial court’s failure to
ensure a complete record because the substance of this claim was not fairly presented to the state
courts. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Because this claim is procedurally
defaulted to the extent it alleges error by the trial court, no hearing is necessary, and Ground 10 is
denied.
3.

Ground 11:

Trial court’s failure to strike juror for cause

Petitioner argues his rights under the 6th and 14th Amendments were denied by the trial
court based on the trial court’s denial of the defense’s motion to strike for cause juror Adam
Powell. Respondent argues the Missouri Supreme Court’s rejection of this claim was not contrary
to, or a reasonable application of, clearly established federal law.
During trial, the defense moved to strike Powell for cause, arguing Powell essentially said
he could not “give meaningful consideration to things such as childhood experiences as a reason
to vote against the death penalty for an adult murderer,” such that Powell’s ability to consider a
life sentence as opposed to capital punishment was substantially impaired. The trial court denied
the motion to strike for cause finding Powell’s answers during voir dire did not demonstrate an
inability to be fair and impartial. Powell served as the jury’s foreperson.
The Missouri Supreme Court considered this claim on direct appeal and found no abuse of
discretion in the trial court’s ruling that Powell’s statements indicated he could be fair and
impartial.
The right to a jury trial includes the right to an impartial jury. Irvin v. Dowd, 366 U.S. 717,
721-22 (1961). In the context of a capital case, an impartial jury is one not “uncommonly willing
to condemn a man to die.” Witherspoon v. Illinois, 391 U.S. 510, 521 (1968). An impartial juror

27

is one who can give meaningful consideration to mitigation evidence. Boyde v. California, 494
U.S. 370, 377-78 (1990). A juror in a capital case may be excused for cause if his or her ability to
impose the death penalty is substantially impaired. White v. Wheeler, 136 S. Ct. 456, 460 (2015).
A prospective juror’s qualifications to serve are evaluated from the entire record. Murray v. Delo,
34 F.3d 1367, 1377 (8th Cir. 1994). A trial court’s ruling on whether to strike a juror for cause is
a factual finding entitled to deference. White, 136 S. Ct. at 460.
The Court’s review of the record suggests no basis for the conclusion that the decision of
the Missouri State Court is contrary to law or based on an unreasonable determination of the facts.
To the extent Petitioner argues the Missouri Supreme Court relied heavily on Powell’s
questionnaire answers to the exclusion of considering Powell’s statements during in-court voir
dire. The Missouri Supreme Court decision belies this assertion in stating its review of the totality
of Powell’s voir dire answers. Although Powell stated his opinion that childhood experiences
would generally not justify adult criminal conduct, in certain instances, childhood experiences
might be worth considering in certain circumstances as a matter of weight. Powell expressly stated
he was not unwilling to consider childhood experiences in certain circumstances. The Court thus
finds the trial court’s denial of the motion to strike for cause not contrary to established law and
not an unreasonable application to the facts. Petitioner is not entitled to relief on this point.
For the reasons stated, Petitioner’s request for § 2254 relief based on trial court error is
denied.
E.

Petitioner’s prosecutorial misconduct claims, asserted in Ground 9, are
procedurally defaulted and denied.

Petitioner argues he is entitled to relief under § 2254 on grounds of prosecutorial
misconduct. Petitioner asserts counsel for the State of Missouri violated Petitioner’s constitutional
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments in at least five ways. First,
28

Petitioner argues the State improperly dissuaded Petitioner’s mother and sister from testifying on
his behalf during the penalty phase. Second, Petitioner argues the State presented impermissible
victim impact evidence. Third, Petitioner argues the State improperly hindered the Defense’s jury
selection strategy relating to potential juror’s capacity to tolerate violent imagery. Fourth,
Petitioner argues the State misrepresented material facts during the trial about the relationship
between Petitioner and Marsha Spicer. Fifth, Petitioner argues the State failed to preserve and
disclose exculpatory evidence.
“As a general rule, prosecutorial misconduct does not merit federal habeas relief unless the
misconduct infected the trial with enough unfairness to render a petitioner’s conviction a denial of
due process.” Stringer v. Hedgepeth, 280 F.3d 826, 829 (8th Cir. 2002) (citing Louisell v. Dir. of
Iowa Dep’t of Corrs., 178 F.3d 1019, 1023 (8th Cir. 1999). “A petitioner must show that there is
a reasonable probability that the error complained of affected the outcome of the trial – i.e., that
absent the alleged impropriety the verdict probably would have been different.” Id. (citing
Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995).
1. Dissuading defense witnesses during penalty phase
Petitioner argues the State improperly referred to memoranda produced by Defense counsel
in the State’s contacts with Petitioner’s mother, Billie Carol Spidle, and sister, Stephanie
Woodward, in an improper effort to dissuade Spidle and Woodward from testifying on behalf of
Petitioner during the penalty phase of the trial. In opposition, Respondent argues this claim is
procedurally defaulted, and if it is not procedurally defaulted, then Petitioner’s assertion of
prosecutorial misconduct on this factual predicate is without merit.
By way of background, Petitioner argues Spidle and Woodward had agreed to testify on
Petitioner’s behalf for mitigation purposes during the penalty phase. Petitioner asserts Spidle and

29

Woodward were going to testify about Petitioner’s history as a victim of childhood sexual abuse.
In connection with the preparation of mitigation evidence, the defense team wrote memoranda
about their interactions with Spidle and Woodward. These memos included the defense’s thoughts
and impressions about the witnesses, including those that reflected negatively upon the witnesses.
With respect to Spidle and Woodward, mitigation specialist Carole Muller conducted
witness interviews and prepared memos memorializing her impressions. The defense produced
these memos to the State pursuant to Missouri Supreme Court Rule 25.05, and trial counsel failed
to redact portions of these memos as work product. Petitioner argues the State gave Spidle and
Woodward the memos containing the defense’s negative impressions of them in an improper
attempt to dissuade them from testifying on behalf of Petitioner. Petitioner argues, “[a]s the memos
. . . revelated the witnesses’ sensitivity to criticism and exposure of their personal lives, the
prosecutor knew that disclosing them in full would devastate the witnesses just days before their
intended testimony.” (Doc. #24 at 162). Though Spidle and Woodward had previously agreed to
testify during the penalty phase, neither testified as part of the mitigation presentation.
Petitioner concedes this claim of prosecutorial misconduct is procedurally defaulted
because these facts were not raised as a basis for relief on direct appeal or during Petitioner’s postconviction proceedings. Petitioner asserts, however, that this claim is properly before this Court
based on the miscarriage of justice exception to the procedural default rule, in reliance on Schlup
v. Delo, 513 U.S. 298 (1995).
The “fundamental miscarriage of justice exception is grounded in the equitable discretion
of habeas courts to see that federal constitutional errors do not result in the incarceration of
innocent persons.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (citing Herrera v. Collins, 506
U.S. 390, 404-05 (1993)). Schlup addresses “the actual innocence” gateway to federal habeas

30

review, in which “a convincing showing of actual innocence enabled habeas petitioners to
overcome a procedural bar to consideration of the merits of their constitutional claims.” Id. (citing
Schlup, 513 U.S. at 386. To trigger the miscarriage of justice exception to procedural default, the
petitioner must establish: (1) constitutional error with new reliable evidence not available at trial;
and (2) “that it is more likely than not that no reasonable juror would convict him in light of the
new evidence.” Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001).
In support of Petitioner’s assertion that the Court should consider this claim of
prosecutorial misconduct on the merits based on the miscarriage of justice exception to procedural
default, Petitioner argues that during the penalty phase presentation of mitigation evidence, the
defense learned the State had shown Spidle and Woodward the memos that contained unflattering
observations. Even assuming, without deciding, that prosecutorial misconduct is present under the
circumstances set forth, Petitioner cannot demonstrate that his evidence is new; to the contrary,
Petitioner argues the defense learned about these circumstances during the penalty phase of the
trial. Kidd. v. Norman, 651 F.3d 947, 953 (8th Cir. 2011) (citing Amrine, 238 F.3d at 953 (new
evidence is that which was not presented at trial, is reliable, and was not available at trial through
the exercise of due diligence)). Moreover, the miscarriage of justice exception to procedural
default “applies to a severely confined category: cases in which new evidence shows it is more
likely than not that no reasonable juror would have convicted the petitioner.” McQuiggin, 568 U.S.
at 395. Petitioner does not assert his actual innocence, but rather argues but for the State’s
interference with the defense’s penalty phase witnesses, the jury would not have recommended the
death penalty. The Court declines to expand the application the miscarriage of justice exception
under the circumstances of this case. Because Petitioner concedes procedural default, and the Court

31

has concluded an exception does not apply, there is no need for a hearing, this claim is procedurally
defaulted, and the Court may not consider this claim on its merits.
2. Impermissible victim impact evidence
Petitioner asserts constitutional error based on the State’s presentation of improper victim
impact evidence during the penalty phase of Petitioner’s trial. Respondent counters this assertion
of prosecutorial misconduct is procedurally defaulted, and even if it is not, Petitioner is not entitled
to relief on the merits.
The State presented testimony of four witnesses in support of its aggravation presentation
during the penalty phase of Petitioner’s trial. Petitioner argues the testimony of Tammy Butler11
and of Mickey Bryant12 was improper victim impact evidence, and the State engaged in
misconduct by presenting these witnesses as part of its aggravation presentation during the penalty
phase.
In support of this argument, Petitioner relies on Payne v. Tennessee, 501 U.S. 808, 827
(1991). “Where the State imposes the death penalty for a particular crime, [the Supreme Court]
has held that the Eighth Amendment imposes special limitations upon that process.” Payne v.
Tennessee, 501 U.S. 808, 824 (1991). However, “[s]tates enjoy their traditional latitude to
prescribe the method by which those who commit murder shall be punished.” Id. (citing Blystone
v. Pennsylvania, 494 U.S. 299, 309 (1990). “Victim impact evidence is simply another form or
method of informing the sentencing authority about the specific harm caused by the crime in
question, evidence of a general type long considered by sentencing authorities.” Payne, 501 U.S.
at 825. “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial

11

Butler is the victim in Petitioner’s 1987 conviction for rape.
Bryant is the father of the five-year-old victim that Petitioner allegedly sexually abused after Spicer’s murder but
before Petitioner was arrested in connection with the murder.

12

32

fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a
mechanism for relief.” Id. (citing Darden v. Wainwright, 477 U.S. 168, 179-183 (1986)).
“Under the aegis of the Eighth Amendment, [the Supreme Court] has given the broadest
latitude to the defendant to introduce relevant mitigating evidence reflecting on his individual
personality, and the defendant’s attorney may argue that evidence to the jury.” Id. at 826. “[T]hus
. . . if the State chooses to permit the admission of victim impact evidence and prosecutorial
argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately
conclude that evidence about the victim and about the impact of the murder on the victim’s family
is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” Id. at
827.
At root, Petitioner argues Butler and Bryant’s testimony was improperly presented because
it did not relate to the crime for which Petitioner was on trial. In support of this argument, Petitioner
argues the trial court granted the defense’s motions to exclude the victim impact statements of both
Bryant and Butler on the basis that Payne limits victim impact evidence to that which relates to
the crime for which the defendant is on trial. Despite this ruling, however, trial counsel did not
object to the testimonies of Butler and Bryant during the penalty phase, and the State improperly
elicited testimony from these witnesses that went beyond proper victim impact evidence.
Petitioner concedes this claim of prosecutorial misconduct is procedurally defaulted
because these facts were not raised as a basis for relief on direct appeal or during Petitioner’s postconviction proceedings. Petitioner asserts, however, that this claim is properly before this Court
under Martinez because Petitioner also argues ineffective assistance of counsel relative to the
testimony of Butler and Bryant.

33

Martinez provides an exception to procedural default 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 . . . counsel . . . was
ineffective.” 566 U.S. at 17. Respondent argues this claim is procedurally defaulted, and even if
the Martinez exception might apply if PCR counsel was ineffective, Petitioner’s assertion that trial
counsel was ineffective for failing to object to the testimony of Butler and Bryant is not a
substantial claim.
To overcome procedural default under Martinez, a petitioner must demonstrate: (1) PCR
counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984); and (2) “the
underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that
the petitioner must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14.
The Court thus considers whether Petitioner’s assertion that trial counsel was ineffective
for failing to object to Butler and Bryant’s testimony is a substantial one. Under Strickland, the
movant must establish: (1) trial counsel’s performance was deficient in that it fell below an
objective standard of reasonableness; and (2) the deficient performance prejudiced the defendant.
Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019) (citing Strickland, 466 U.S. at 687).
Petitioner asserts deficiency based on trial counsel’s failure to object to the testimony of
Butler and/or Bryant, and/or the State’s elicitation of improper victim impact evidence.
Respondent argues Butler’s testimony was not offered as victim impact evidence, but rather
evidence in support of an aggravating factor. Respondent argues, alternatively, if Butler’s
testimony was victim impact evidence, it was not improper under Payne because it did not render
the sentencing process fundamentally unfair.

34

“In general, at penalty phase the State and defense may introduce any evidence regarding
the defendant’s character.” State v. Parker, 886 S.W.2d 908, 924 (Mo. 1994) (citing Missouri v.
Six, 805 S.W.2d 159, 166-67 (Mo. 1991), cert. denied, 502 U.S. 871, 112 S. Ct. 206, 116 L.Ed.2d
165 (1991))). “[E]vidence detailing the circumstances of prior convictions submitted as
nonstatutory aggravating factors is admissible at the penalty phase.” Parker, 886 S.W.2d at 924
(citing Missouri v. Debler, 856 S.W.2d 641, 656 (Mo. 1993)).
With respect to Butler’s testimony, Petitioner cannot establish PCR counsel’s deficient
performance because trial counsel objected to Butler’s testimony, but the trial court overruled the
objection finding Butler’s testimony admissible as proper aggravator evidence. Because Butler’s
testimony was admissible for this purpose, trial counsel was not deficient in the objection to
Butler’s testimony. Because trial counsel’s representation did not fall below an objective standard
of reasonableness, PCR counsel could not show ineffective assistance of trial counsel, and in turn
was not ineffective. This claim is procedurally defaulted relative to Butler’s testimony because the
circumstances of a prior conviction is properly admissible.
The issue of Bryant’s testimony is somewhat less straightforward because Petitioner’s
assault of Bryant’s five-year-old daughter, in contrast with Petitioner’s rape conviction in which
Butler was the victim, is not the factual predicate for a prior conviction. However, Bryant’s
testimony relates to the circumstances after Spicer’s murder, but before Petitioner was arrested in
connection with the charge for which he was on trial. Notwithstanding, in light of the general
premises that evidence of the defendant’s character is relevant during the penalty phase,
Petitioner’s conduct immediately after the crime for which he was on trial is properly considered.
Consequently, trial counsel’s failure to successfully object to Bryant’s testimony does not fall
below an objective standard of reasonableness, and PCR counsel’s failure to raise a claim of

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ineffective assistance based on trial counsel’s failure to object in this instance was not deficient.
Therefore, the Martinez exception does not apply, no hearing is necessary, and Petitioner’s claim
based on the testimonies of Butler and Bryant during the penalty phase is procedurally defaulted.
3.

Impeding counsel’s ability to inquire about tolerance for graphic
images

Petitioner argues he is entitled to relief based on prosecutorial misconduct because counsel
for the State objected to defense counsel’s attempts to ask potential jurors about their respective
abilities to tolerate graphic and violent depictions. Petitioner asserts counsel for the State rendered
Petitioner’s trial fundamentally unfair by obstructing defense counsel’s attempts to exclude jurors
“whose reactions to the evidence in this case would be so extreme as to prevent fair deliberation.”
(Doc. #24 at 166). In opposition, Respondent argues this claim is procedurally defaulted, and even
if default could be excused under Martinez, which it cannot, the claim lacks merit.
Petitioner concedes this issue has been procedurally defaulted, but argues Martinez applies
to excuse Petitioner’s failure to present this claim previously. To establish that Martinez applies,
Petitioner must show PCR was ineffective for failing to include this claim because trial counsel
was ineffective for failing to object, in this instance, to counsel for the State’s cumulative and
graphic evidence against Petitioner.
This claim of prosecutorial misconduct is based on the State’s objections during voir dire,
and the State’s presentation of photographic and video evidence. For purposes of the application
of Martinez, PCR counsel may be ineffective only if trial counsel is ineffective as set forth in
Strickland. Even assuming, without deciding, that trial counsel was ineffective for failing to object
to cumulative evidence, Petitioner cannot, based on the record, establish prejudice such that PCR
counsel could be considered ineffective for failing to raise this claim to the state court. “When a
defendant challenges a conviction, the question is whether there is a reasonable probability that,
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absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Shelton v.
Mapes, 821 F.3d 941, 948 (8th Cir. 2016). In the context of Petitioner’s claim, to establish
prejudice, Petitioner would have to show a reasonable probability that, but for counsel for the
State’s objections presentation of cumulative evidence, defense counsel would have been able to
work toward a jury unaffected by the graphic evidence in this case. Petitioner has not made such
a showing or pointed to any case law suggesting how this showing might be made. The Court thus
concludes Martinez does not apply to excuse procedural default, no hearing is necessary, and the
Court may not consider this claim on its merits.
4.

Misrepresentation of facts about victim

Petitioner asserts violation of due process based on the State’s statements and suggestions
about Spicer during the trial, which Petitioner argues misled the court and the jury by
mischaracterizing material circumstances of the murder victim’s life. Respondent counters this
claim is procedurally defaulted, and meritless.
Petitioner concedes this claim is procedurally defaulted, but argues this claim is properly
before the Court based on the miscarriage of justice exception in Schlup. To excuse procedural
default based on a miscarriage of justice, the petitioner must demonstrate both of the following:
(1) constitutional error based on new and reliable evidence; and (2) that it is more likely than not
that, in light of the new evidence, the defendant would not be convicted. Amrine, 238 F.3d at 1029.
Petitioner does not point to any evidence, not otherwise available at the time of trial, demonstrating
a constitutional error. Therefore, the miscarriage of justice exception to procedural default does
not apply. Moreover, even if the Court could properly consider the merits of this claim, the
statements identified are not, in light of the record, so egregious as render the trial fundamentally
unfair. Moore v. Wyrick, 760 F.2d 884, 886 (8th Cir. 1985).

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5.

Police recordings

Petitioner argues his trial was rendered fundamentally unfair by prosecutorial misconduct
relating to recordings of communications between Petitioner and police between May 15, 2016
and May 30, 2016, when counsel was appointed to represent Petitioner. In opposition, Respondent
argues this claim is procedurally defaulted, and in the event this Court considers the claim on its
merits, the state court findings are entitled to deference.
Under Brady v. Maryland, a prosecutor may not withhold evidence that is favorable to a
criminal defendant, whether that evidence is exculpatory or impeachment evidence. 373 U.S. 83,
87 (1963). Regardless of the prosecutor’s intent, failing to produce favorable evidence “violates
due process where the evidence is material . . . .” Id. Evidence is material if “there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). To establish a Brady
violation, a petitioner must demonstrate the following: (1) the prosecution suppressed evidence;
(2) the suppressed evidence was material and favorable to the defense; and (3) prejudice. Collier
v. Norris, 485 F.3d 415, 422 (8th Cir. 2007) (citing United States v. Haskell, 468 F.3d 1064, 1075
(8th Cir. 2006)). The prejudice element is established if “there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been different.”
Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). This reference to “reasonable
probability” “does not require demonstration by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant’s acquittal, but is satisfied when the
suppression undermines confidence in the outcome of the trial.” Id.
Petitioner concedes this claim is procedurally defaulted because PCR counsel failed to
plead sufficient facts to support Petitioner’s Brady claim. However, Petitioner asserts this Court

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should consider Petitioner’s Brady claim on its merits because the State’s failure to disclose and
preserve the original evidence prevented Petitioner from avoiding procedural default by fully
litigating this claim at the state level; therefore, the miscarriage of justice exception applies to
excuse procedural default. Respondent argues the conceded procedural default cannot be excused,
especially because Petitioner’s Brady claim was not raised in Petitioner’s appeal of the ruling on
Petitioner’s PCR motion. Further, Respondent asserts that even if this Court could excuse the
procedural default of this claim, the State court’s ruling on Petitioner’s Brady claim is entitled to
deference.
As discussed, the miscarriage of justice exception to procedural default requires Petitioner
to demonstrate the existence of a constitutional error based on new evidence and a likelihood that
but for the error demonstrated by the new evidence, the outcome would have been different.
Amrine, 238 F.3d at 1029. Petitioner points to no new or different evidence suggesting the State
mishandled or withheld the recordings sought; the evidentiary landscape with respect to the
recordings allegedly made and recorded over or withheld remains the same as that presented to the
PCR court that rejected the Brady claim as too conclusory in nature and lacking in specific facts.
The Court thus finds the miscarriage of justice exception is not triggered by the circumstances
presented and this claim is procedurally defaulted. Moreover, Missouri Supreme Court Rule 29.15
precludes a PCR court from extrapolating from conclusory assertions, such that this Court may not
properly consider this claim that the state court has not had a full opportunity to consider. Jones v.
Missouri, 197 S.W.3d 227, 231 (Mo. Ct. App. 2006). To the extent Petitioner alleges PCR counsel
was ineffective for failing to comply with state procedural rules, Martinez applies to excuse
procedural default only in instances of substantial ineffective assistance trial counsel. Dansby v.
Hobbs, 766 F.3d 809, 833 (8th Cir. 2014).

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For the reasons set forth, Petitioner’s claims for relief based on prosecutorial misconduct
are procedurally defaulted, and this Court may not consider them on their merits, and/or assess any
cumulative error resulting from any alleged misconduct. Accordingly, the Court denies Petitioner’s
Ground IX seeking § 2254 relief asserting constitutional error due to prosecutorial misconduct.
F.

A certificate of appealability is denied.

A district court may issue a certificate of appealability if a § 2254 claimant has made a
substantial showing of a constitutional right. 28 U.S.C. § 2253(c)(2). A substantial showing is one
that presents issues that are debatable among reasonable jurists. Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997). Because no such issue is presented here, the Court declines to issue a certificate
of appealability. Accordingly, it is hereby
ORDERED the Petition for Writ of Habeas Corpus (Doc. #21), Amended Petition for Writ
of Habeas Corpus (Doc. #24), and Supplemental Petition for Writ of Habeas Corpus (Doc. #42)
are DENIED. It is further
ORDERED Petitioner’s motion for discovery (Doc. #62) is DENIED AS MOOT.
IT IS SO ORDERED.

DATE: August 30, 2019

/s/ Brian C. Wimes
JUDGE BRIAN C. WIMES
UNITED STATES DISTRICT COURT

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