Williams v. Pash

Filing 23

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 8/22/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
JIMMIE R. WILLIAMS,
Petitioner,
vs.
RONDA J. PASH, Warden,
Crossroads Correctional Center,
Respondent.

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Case No. 17-06041-CV-SJ-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 Jimmie R. Williams’s Petition for Writ of Habeas Corpus
filed pursuant to 28 U.S.C. § 2254. Doc. #1. For the following reasons, the Court
denies the Petition, and declines to issue a Certificate of Appealability.

I.

BACKGROUND

The underlying facts were summarized by the Missouri Court of Appeals:
Williams was originally charged with one count of first-degree
statutory rape and one count of first-degree statutory sodomy. He
pleaded guilty to two counts of first-degree child molestation pursuant to a
plea agreement with the State. Under the agreement, Williams could ask
the court to impose the minimum sentences for the offenses that run
concurrently; the State could request maximum sentences to run
consecutively. Williams signed a written petition to enter [a] plea of guilty.
The petition included the following paragraph:
I know that the Court will not permit anyone to plead guilty
who is innocent, and because I am guilty, I request the Court
to accept my plea of guilty. I did the following acts in
connection with the charge(s) against me; [in handwriting] In
Clay County Missouri, between 8/1/2010 and 2/2/2012, I
touched [the victim], her vagina to my penis and my finger to
her vagina.
At the plea hearing, Williams admitted that between August 1,
2010, and February 2, 2012, he knowingly subjected the victim, who was

less than fourteen years old, to sexual contact by touching her vagina with
his penis and by placing his finger inside her vagina. He acknowledged
the plea agreement and stated that no threats or promises had been made
to induce him to plead guilty. He further stated his understanding of the
range of punishment for the class B felonies and the rights he was waiving
by pleading guilty. Finally, Williams stated that his attorney had done
everything he wanted and that he had no complaints with his services.
At the sentencing hearing, the court received a sentence
assessment report (SAR). Williams presented the testimony of his
psychologist, who opined that with proper supervision and treatment,
Williams’s propensity to re-offend was practically zero. He also presented
“many letters of support.” The State presented the testimony of the
victims’ (sic) parents. After reception of the evidence, the court sentenced
Williams to consecutive terms of eleven years imprisonment on each
count. The court explained that it considered the age of the victim, the
number of times she was victimized by Williams, and the SAR. It stated
that although on paper Williams has a low risk of re-offending, he had
changed his story and had not taken ownership of his fault.
Thereafter, Williams filed an amended motion for postconviction
relief. The motion alleged that the prosecutor violated Brady v. Maryland
by failing to disclose exculpatory evidence, a DVD recording of the victim’s
forensic interview and an audio recording of Williams’s interview by law
enforcement. The motion also raised several claims of ineffective
assistance of counsel both in connection with guilty plea and with
sentencing. Following an evidentiary hearing, the motion court denied
Williams’s motion.
Doc. #6-1, at 2-4. Williams appealed the motion court’s decision to the Missouri Court
of Appeals, which affirmed the judgment of the motion court. Williams v. State, 497
S.W.3d 778 (Mo. Ct. App. 2016); Doc. #6-1.
In his Petition to this Court, Petitioner articulates the following grounds for relief:
(1)

The motion court erred in denying Petitioner’s Rule 24.035 motion

because the State committed a Brady violation by failing to disclose recordings of the
victim’s forensic interview and Petitioner’s interview by police detectives. Petitioner also
argues the motion court’s finding that the written summaries of these recordings
accurately reflect the contents of the recordings was erroneous. Doc. #1, at 21-36.
(2)

Petitioner was denied the right to effective assistance of counsel when

counsel failed to investigate and obtain evidence from the State. Doc. #1, at 37-44.

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(3)

Petitioner was denied the right to effective assistance of counsel when

counsel failed to correct the SAR, failed to cross-examine the victim’s parents at the
sentencing hearing, and failed to offer the victim’s sexual assault forensic examination
(“SAFE”) into evidence. Doc. #1, at 44-52.
(4)

As a result of the Brady violation and ineffective assistance of counsel,

Petitioner was deemed to be not credible at sentencing, resulting in a longer sentence,
and at the hearing on Petitioner’s post-conviction motion, resulting in the denial of postconviction relief, all of which deprived him of his right to fair proceedings, due process,
and effective assistance of counsel. Doc. #1, at 52-56.

II.

STANDARD

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 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:
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application” provisions in the
first subsection have independent meaning. The “contrary to” provision applies “if 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 “unreasonable application” clause applies “if 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.
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(quoting Collier v. Norris, 485 F.3d 415, 421 (8th Cir. 2007)). “A federal court may not
issue the writ simply because it concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Id. (internal quotations and
citations omitted).

III.

DISCUSSION1

A. Ground One: Brady violation
Petitioner argues the State violated Brady v. Maryland, 373 U.S. 83 (1963), when
it failed to produce certain recordings. Petitioner maintains the recordings “contained
exculpatory evidence as to the crimes charged and information favorable to Petitioner’s
plea, sentencing assessment and at sentencing.” Doc. #1, at 18-19.
The Missouri Court of Appeals addressed this particular issue:
Under Brady v. Maryland, 373 U.S. 83 (1963), due process is
violated where the State fails to disclose evidence that is favorable to the
accused and material to either guilt or punishment. Gill v. State, 300
S.W.3d 225, 231 (Mo. banc 2009); State v. Salter, 250 S.W.3d 705, 714
(Mo. banc 2008). Evidence is material only when there is a reasonable
probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different. Salter, 250 S.W.3d at 714.
But Brady only applies where the defense discovers information after trial
that had been known to the prosecution at trial. Gill, 300 S.W.3d at 231;
Salter, 250 S.W.3d at 714. If the defendant knew about the evidence at
the time of trial, no Brady violation occurred. Id. When an alleged Brady
violation is raised in a 24.035 motion, the “violation must be such that it
supports a conclusion that the movant would not have pled guilty had he
been provided with the undisclosed evidence.” Wallar v. State, 403
S.W.3d 698, 707 (Mo. App. W.D. 2013).
Doc. #6-1, at 5. The Missouri Court of Appeals found Petitioner was aware of the
recordings before his guilty plea in March 2013. Id. After Petitioner requested
discovery, the State provided Petitioner’s counsel “with a summary of the victim’s
forensic interview and a summary of Williams’s interview with police detectives.” Id.
The summaries indicated the victim’s interview was videotaped, and Petitioner’s
interview was recorded. Id. at 5-6. During an evidentiary hearing, Petitioner’s counsel
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The Court concludes a hearing is not necessary because Petitioner’s claims can be
evaluated based on the record.
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acknowledged he was aware his client’s interview had been recorded but he did not
follow up to see if either recording was available. Id. at 6. The Missouri Court of
Appeals concluded Petitioner’s counsel had knowledge of the records before Petitioner
pled; thus, “there was no Brady violation.” Id. The Missouri Court of Appeals also found
Petitioner “failed to prove that he would not have pleaded guilty but for the
nondisclosure.” Id.
As set forth above, this Court cannot issue a writ of habeas corpus unless it
determines the state court’s decision (1) was contrary to or involved an unreasonable
application of clearly established federal law; or (2) resulted in a decision based on an
unreasonable determination of the facts in light of the evidence in the state court
proceeding. 28 U.S.C. § 2254(d). For the following reasons, this Court finds the
Missouri Court of Appeals’s determination that there was no Brady violation was not
contrary to, or involved an unreasonable application of, clearly established federal law.
“In Brady, the Supreme Court held that ‘suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.’” Villasana v. Wilhoit, 368 F.3d 976, 978 (8th Cir. 2004)
(quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). When “the existence of the
allegedly suppressed evidence bec[omes] known to the defense,” there is no Brady
violation. Id. at 979 (citations omitted). Petitioner’s counsel was aware of the
recordings’ existence. For this reason alone, there was no Brady violation.
In addition, Petitioner failed to establish the recordings were favorable to him, a
requirement to establish a Brady violation. Brady, 373 U.S. at 87. The recording of the
victim’s interview reveals Petitioner molested the victim, who at the time of the interview,
was five-years-old, and the molestation occurred numerous times. Doc. #20, at Ex. 23.
The molestation included, among other things, genital contact and digital penetration.
Id. This recording is not favorable to Petitioner, and Petitioner failed to demonstrate
otherwise. For this additional reason, there was no Brady violation.
Furthermore, Petitioner did not show the suppression of the recordings
prejudiced him during his guilty plea or sentencing, also a requirement to establish a
Brady violation. Brady, 373 U.S. at 87 (stating the suppressed evidence must be
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“material either to guilt or punishment”). Petitioner argues he would not have pled guilty
to child molestation had he viewed the recordings, and would have known the victim,
according to Petitioner’s interpretation of the recording, did not allege vaginal
penetration. This argument is without merit for two reasons. First and foremost, during
his guilty plea, Petitioner, under oath, admitted he digitally penetrated the victim’s
vagina. Doc. #9-4, at 12-13. Whether the victim stated the penetration was vaginal or
anal is immaterial. Second, Petitioner pled guilty to child molestation, which does not
require proof of penetration. Mo. Rev. Stat. § 566.067(2) (2014). Thus, allegedly
disputed facts about whether penetration occurred and the type of penetration that
occurred are inconsequential. For this additional reason, there was no Brady violation.
Petitioner also argues the Missouri Court of Appeals improperly determined the
written summaries of the recordings accurately depicted the recordings. Specifically, he
contends the written summary of the victim’s interview misrepresented the victim’s
statement, particularly with regard to penetration. See Doc. #20, at 1, 7-11. During the
recording of the victim’s interview, the victim unequivocally stated Petitioner digitally
penetrated her. See Doc. #20, at Ex. 22. The victim, using her descriptions of her body
parts (“bottom” for vagina, and “butt” for posterior), stated Petitioner digitally penetrated
her “butt,” and also stated Petitioner digitally penetrated her “bottom.” Id. The Court
finds the Missouri Court of Appeals’s holding that the summary of this recording
accurately reflected the victim’s statements was not an unreasonable determination of
the facts. Accordingly, Ground One is denied.

B. Grounds Two and Three: Ineffective Assistance of Counsel
Issues of ineffectiveness of trial counsel are governed by the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). “This 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
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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 “reach 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). “An ineffective
assistance of counsel claim is a mixed question of law and fact.” McReynolds v.
Kemna, 208 F.3d 721, 723 (8th Cir. 2000).

(1) Failure to Investigate and Obtain Evidence
In Ground Two, Petitioner argues his counsel was ineffective for failing to follow
up with the State to determine whether the DVD of the victim’s interview was available,
obtain the DVD, and determine whether the audio recording of Petitioner’s interview
was still available. Petitioner contends these failures resulted “in prejudice…in that his
plea was based upon the State’s materially misrepresented evidence, and he was
assessed against such purported evidence, resulting in lengthy and consecutive
sentences….” Doc. #1, at 37. The Missouri Court of Appeals found this particular issue
had not been raised before the motion court, and therefore, Petitioner did not preserve
this particular argument for appeal. Id. at 9. The Missouri Court of Appeals, however,
still considered the claim but found it meritless. Id.
By entering a plea of guilty, a movant generally waives any future
complaints about counsel’s failure to investigate and prepare for trial.
Smith v. State, 413 S.W.3d 709, 716 (Mo. App. E.D. 2013). Such claims
are only relevant in regard to the voluntariness of the guilty plea. Id. To
succeed on a claim of ineffective assistance of counsel claim based on
inadequate investigation, “movant must specifically describe the
information the attorney failed to discover, allege that a reasonable
investigation would have resulted in the discovery of such information and
prove that the information would have aided or improved movant’s
position.” Id. (internal quotes and citation omitted).
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Williams failed to prove that obtaining and reviewing the recordings
would have aided or improved his position. At the evidentiary hearing,
Williams introduced into evidence the recordings of his interview and the
victim’s forensic interview. He did not, however, allege or prove what
specific information his counsel could have discovered in the recordings
that was substantially different from the summaries of the recordings or
that would have aided or improved his defense. It was not the
responsibility of the motion court to compare the recordings to the
summaries that had been provided to the defense and determine whether
anything might have been helpful to Williams’s defense. “It is the
movant’s responsibility to prove that a more extensive investigation would
have produced evidence to improve movant’s trial position.” Yoakum v.
State, 849 S.W.2d 685, 688 (Mo. App. W.D. 1993). No basis existed for
the motion court to conclude that further investigation into the recordings
would have resulted in Williams choosing to proceed to trial instead of
pleading guilty. Williams failed to prove this claim for postconviction relief
by a preponderance of the evidence.
Nevertheless, review of the recordings shows that the summaries
that had been provided to the defense accurately reflected the victim’s and
Williams’s statements in their interviews and did not misstate anything in
the recordings. While the summary of Williams’s interview did not include
some denials made by him, he failed to prove that the denials would have
improved his position. In his interview, Williams admitted certain conduct
and at other times denied it. He fails to show how his inconsistent
statements during his interview with detectives would have improved his
position or caused him to go to trial rather than plead guilty. The motion
court did not clearly err in denying this claim of ineffective assistance of
counsel.
Doc. #6-1, at 10-11.
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 the applicable law, the Court concludes the Missouri
Court of Appeals applied the proper standard in that it analyzed (1) whether trial
counsel’s performance was deficient, and (2) whether this deficiency prejudiced
Petitioner. Petitioner failed to establish his counsel’s failure to obtain the recordings
was outside the wide range of professionally competent assistance. Strickland, 466
U.S. at 690. Petitioner also failed to show there was a “reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The Court also finds the Missouri
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Court of Appeal’s decision was not based upon an unreasonable determination of the
facts. For these reasons, Ground Two denied.

(2) Failure to Correct SAR
For his first argument under Ground Three, Petitioner alleges his counsel was
ineffective at sentencing because he failed to correct the SAR. Petitioner maintains his
counsel’s failures resulted in “much longer sentences and the imposition of consecutive
sentences….” Doc. #1, at 45.
At the sentencing hearing, the court received an SAR completed by a probation
and parole officer. Doc. #6-1, at 18. The court asked if either party had corrections to
the SAR, and neither did. Id. Among other things, the SAR “revealed the facts
surrounding the victim’s disclosure to her parents of the molestation by Williams, her
step-grandfather who babysat her two afternoons a week.” Id. The SAR also detailed
the victim’s forensic interview and Williams’s interview with police. Id. at 19. The SAR
indicated the victim would come to Williams naked while Williams’s wife was not home,
and this “occurred about every week and a half and estimated 24 to 36 incidents.” Id.
According to the SAR, Petitioner “said the victim got into the habit of taking her
clothes off in front of him and that at times she would come to him with lotion on her
vagina that he would wipe off and rub in on her body. Williams said that ‘one time,
couple of times, 4-5-6 times’ the victim asked him to touch her ‘bottom’ meaning
vagina.” Id. On hot days, Petitioner would undress the victim, while he thought she was
napping, because she was sweaty. Id. He reported the victim would come to his room
naked and give him a “bear hug.” Id. “Williams admitted rubbing the outside of the
victim’s vagina eight or nine times from April 2011 to November 2011 but denied digital
or penile penetration.” Id. According to the SAR officer, “Williams continuously blamed
the victim, minimized the offenses, and never took responsibility for his actions.” Id.
At the evidentiary hearing on Petitioner’s post-conviction motion, his counsel
testified he and Petitioner had a “long conversation” about the SAR. Id. at 19. Counsel
indicated the SAR “did not come out as favorable as we both hoped” and “Williams was
frustrated he did poorly on it. Id. Petitioner believed the SAR “overinflated the number
of times he had contact with the child,” and he was concerned that some statements
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were “misleading.” Id. Petitioner claims he asked his counsel to correct the SAR but
his counsel did nothing. Id. at 20.
The Missouri Court of Appeals decided this claim on the merits even though
Petitioner failed to comply with state procedural rules during the post-conviction
proceedings. Id. at 7-8. The Missouri Court of Appeals denied the claim, finding
Petitioner “failed to prove what changes should have been made to the SAR.” Id. at 20.
[Williams] presented no evidence at the evidentiary hearing as to
what in the SAR was inaccurate or how it should be clarified with the
exception of his testimony about “the 24 to 36 statement.” Under
“Offender’s Version” of the SAR, the following was set out:
Williams said his wife was not home when [the victim] would
come to him naked. He said it occurred about every week
and a half. Williams estimated 24 to 36 incidents.
This statement was taken from the probable cause statement and is
consistent with the recording of Williams’s interview with detectives. It
referred to the number of times the victim was naked. It did not reflect
how many times Williams molested the victim. The information in the SAR
regarding this statement was accurate as to what he reported to
detectives.
In his motion for postconviction relief and in his appellate brief,
Williams set out additional, specific clarifications and corrections that he
believes counsel could have made to the SAR if counsel had had the
recordings of his and the victim’s interviews. However, evidence of these
alleged clarifications or corrections was not presented at the evidentiary
hearing. Besides “the 24 to 36 statement,” Williams did not identify any
other alleged misleading statements in the SAR or explain how he wanted
such statements corrected. Allegations in a motion for postconviction
relief are not self-proving. Bustamante v. State, 478 S.W.3d 431, 440
(Mo. App. W.D. 2015). It is well-settled that a movant’s failure to present
evidence at the hearing to provide factual support for a claim in his
postconviction motion constitutes an abandonment of that claim. Id. A
motion court does not clearly err in refusing to grant relief on an issue that
is not supported by evidence at the evidentiary hearing. Id.
Finally, Williams failed to prove that he would have received a more
lenient sentence but for counsel failing to make changes to the report. In
denying this claim, the motion court explained that while it considered the
number of incidents, it also considered the victim’s age, Williams’s failure
to take responsibility, and his changing his story between the plea and
sentencing. It found that even if the defense had attempted at sentencing
to minimize Williams’s conduct with corrections to the SAR, it would not
have resulted in a more lenient sentence. Where, as here, the sentencing
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court and motion court were one in the same, this finding by the motion
court that proposed testimony at sentencing would not have ameliorated
the sentence is virtually unchallengeable under the clearly erroneous
standard of review. See Cherco v. State, 309 S.W.3d 819, 831 (Mo. App.
W.D. 2010) (motion court’s finding that character witnesses would not
have ameliorated the sentence was virtually unchallengeable). The motion
court did not clearly err in denying this claim.
Id. at 19-21.
Before this Court, Petitioner suggests the SAR conflicted with the recorded
statements, his statements to the SAR officer should have been compared the
recordings and not the probable cause statement, and ambiguous statements were
contained in the SAR. Doc. #20, at 33-37. When Petitioner raised this issue in the
state court, Petitioner failed to specify clarifications and corrections that should have
made to the SAR, other than a statement about the number of times he molested the
child. Thus, Petitioner’s claim is limited to that one alleged inaccuracy in the SAR.
Petitioner has not demonstrated his attorney’s failure to correct this portion of the
SAR was “outside the wide range of professionally competent assistance.” Strickland,
466 U.S. at 690. Further, assuming Petitioner could establish his attorney’s
performance was so deficient as to fall below an objective standard of reasonable
competence, Petitioner failed to establish his counsel’s allegedly deficient performance
prejudiced him. Petitioner contends he was sentenced more harshly because the
sentencing court relied upon the SAR. Doc. #20, at 34. But Petitioner fails to prove he
would have received a more lenient sentence without the Court’s reliance on the SAR.
In reality, the motion court considered not only the number of alleged incidents,
but also considered the victim’s age, Petitioner’s failure to take responsibility and own
what he did, a concern that Petitioner could re-offend, and Petitioner’s story changing
between the plea and sentencing. Doc. #6-1, at 21; Doc. #9-4, at 44-45. Petitioner was
sentenced to eleven years on both counts of child molestation, to run consecutively.
Doc. #1, at 1; Doc. #9-4, at 44. The applicable range of punishment for child
molestation was five to fifteen years imprisonment, as explained to Petitioner at the time
he pled guilty. Doc. #9-4, at 11. The sentences for both counts were within the range
of punishment. Additionally, the state court ordered the sentences to be served
consecutively, a possibility explained to Petitioner at the time of his guilty plea. Id., at
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13. Petitioner failed to present evidence establishing his sentences would have been
less, or would not have run consecutively, had the SAR been corrected.
Based upon its review of the record before it and the applicable law, the Court
finds the decision of the Missouri Court of Appeals was not contrary to or involved an
unreasonable application of clearly established law, and was based on an unreasonable
determination of fact. 28 U.S.C. § 2254(d). The Court also concludes the Missouri
Court of Appeals applied the proper standard when it analyzed whether trial counsel’s
performance was deficient, and whether the deficiency prejudiced Petitioner. For these
reasons, this argument under Ground Three is denied.

(3) Failure to Cross-Examine Victim’s Parents
For his second argument under Ground Three, Petitioner contends his counsel
was ineffective by failing to cross-examine the victim’s parents during the sentencing
hearing. He claims the victim’s parents’ testimonies conflicted with prior statements,
and cross-examination of the parents would have revealed they exaggerated the claims
concerning their daughter.
The Missouri Court of Appeals also considered this claim. It noted “[r]easonable
choices of trial strategy, no matter how ill-fated in hindsight, cannot serves as a basis for
an ineffective assistance of counsel claim.” Doc. #6-1, at 22 (citing Tucker v. State, 468
S.W.3d 468, 474 (Mo. Ct. App. 2015)). “The decision whether to impeach a witness is
presumed to be a matter of trial strategy, and to overcome such presumption, the
movant must demonstrate that the decision was not a matter of trial strategy and that
the impeachment would have provided him with a defense or would have changed the
outcome of the trial.” Id. (citation omitted).
The Missouri Court of Appeals noted Petitioner did not question counsel during
the evidentiary hearing about counsel’s failure to cross-examine the victim’s parents.
Id. at 23. And Petitioner did not present evidence showing the cross-examination of the
victim’s parents would have impacted his sentence. Id. “Without further evidence on
this issue, Williams failed to overcome the presumption that failure to cross-examine the
victim’s parents was a strategic choice by competent counsel.” Id. (citation omitted).
For these reasons, the Missouri Court of Appeals denied this claim for relief.
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Petitioner failed to establish his attorney’s performance – in choosing not to
cross-examine the victim’s parents, one of whom was Petitioner’s step-daughter – was
so deficient as to fall below an objective standard of reasonable competence.
Counsel’s decision not to cross-examine and impeach the victim’s parents is a matter of
trial strategy, and is left to the professional discretion of counsel. See United States v.
Orr, 636 F.3d 944, 952 (8th Cir. 2011); Johnson v. United States, 278 F.3d 839, 842
(8th Cir. 2002) (citations omitted). There are few exceptions to this presumption, which
are inapplicable here. Orr, 636 F.3d at 952 (stating the Eighth Circuit has found
constitutionally deficient performance when counsel “allowed inadmissible devastating
evidence before the jury or when counsel failed to cross-examine a witness who made
grossly inconsistent prior statements.”) (citation omitted). Even if Petitioner could
establish his counsel was deficient, he failed to establish his counsel’s allegedly
deficient performance prejudiced him. See supra, section III(B)(1)-(2).
Upon consideration of the record and the relevant law, the Court finds the
decision of the Missouri Court of Appeals was not contrary to or involved an
unreasonable application of clearly established law, and was based on an unreasonable
determination of fact. 28 U.S.C. § 2254(d). The Court also determines the Missouri
Court of Appeals applied the proper standard when it analyzed whether trial counsel’s
performance was deficient, and whether the deficiency prejudiced Petitioner.
Accordingly, this argument under Ground Three is denied.

(4) Failure to Offer SAFE Report Into Evidence
In his final argument under Ground Three, Petitioner alleges his counsel was
ineffective by failing to offer the SAFE report into evidence at the sentencing hearing
because the SAFE report showed the victim did not suffer physical trauma. The
Missouri Court of Appeals also considered and denied this argument.
Williams again argues that the SAFE exam results would have
provided substantial evidence that he did not have sexual intercourse with
the victim or penetrated her vagina with his finger. But Williams did not
plead guilty to statutory rape and statutory sodomy; he pleaded guilty to
two counts of first-degree child molestation. Penetration is not an element
of child molestation in the first degree. Pond, 131 S.W.3d at 794. Instead,
first-degree child molestation requires a finding of sexual contact, which is
any touching of another person with the genitals or any touching of the
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genitals or anus of another person for the purpose of arousing or gratifying
sexual desire of any person. §§ 566.067.1 and 566.010(3). As explained
above, the SAFE exam did not rule out child molestation. Williams failed
to show a reasonable probability that the SAFE exam would have resulted
in a lesser sentence. The motion court did not clearly err in denying this
claim.
Doc. #6-1, at 17-18.
Petitioner failed to demonstrate his attorney’s failure to offer the SAFE report into
evidence at the sentencing hearing was “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Further, assuming Petitioner could
establish his attorney’s performance was so deficient as to fall below an objective
standard of reasonable competence, Petitioner failed to establish his counsel’s allegedly
deficient performance prejudiced him. See supra, section III(B)(1)-(3).
Based upon its review of the record and the applicable law, the Court finds the
Missouri Court of Appeals’s decision was not contrary to or involved an unreasonable
application of clearly established law, and was based on an unreasonable determination
of fact. 28 U.S.C. § 2254(d). The Court also concludes the Missouri Court of Appeals
applied the proper standard when it analyzed whether trial counsel’s performance was
deficient, and whether the deficiency prejudiced Petitioner. Thus, this argument under
Ground Three is denied.

C. Ground Four: Deprivation of Right to Fair Proceedings and Due Process
Resulting from Brady Violation and Ineffective Assistance of Counsel
Petitioner alleges that as a result of the alleged Brady violation and ineffective
assistance of counsel, Petitioner was deemed not credible at sentencing, which resulted
in longer and consecutive sentences, and was deemed not credible at the motion
hearing, resulting in the denial of post-conviction relief. Petitioner argues he was
deprived of his right to fair proceedings, due process, and effective assistance of
counsel.
Respondent argues this ground must be dismissed because Petitioner failed to
properly exhaust his state remedies with regard to this claim. Before presenting a
federal habeas claim, a petitioner must properly exhaust his state remedies. 28 U.S.C.
§ 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 843 (1999). “[T]he state prisoner must
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give the state courts an opportunity to act on his claims before he presents those claims
to a federal court in a habeas petition.” Id. In his Traverse, Petitioner did not discuss
Ground Four or set forth any argument as to why Ground Four has not been defaulted.
See Doc. #20. Upon review of the record, the Court finds Ground Four is procedurally
barred because Petitioner did not exhaust this particular claim in the state court
proceedings. For this reason alone, Ground Four is denied.
Even if Petitioner exhausted this claim, it would fail on the merits. This claim
rests on Petitioner’s Brady violation claim and his ineffective assistance of counsel
claims. As set forth above, those claims fail. Thus, this claim fails as well.

IV.

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).

V.

CONCLUSION

For these reasons, Petitioner’s request for habeas corpus relief pursuant to 28
U.S.C. § 2254 is denied, the issuance of a certificate of appealability is denied, and this
matter is dismissed with prejudice.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: August 22, 2017

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