Messier v. Steele

Filing 17

ORDER: ORDERED that the petition for writ of habeas corpus is denied, and this case is dismissed with prejudice. Signed on October 1, 2014 by District Judge Gary A. Fenner. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
EDWARD MESSIER,
Petitioner,
vs.
TROY STEELE,
Respondent.

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Case No. 14-3164-CV-S-GAF-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING A CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at the Potosi Correctional Center in
Mineral Point, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. '
2254. Petitioner challenges his 2007 conviction and sentence for first degree assault, which was entered
in the Circuit Court of Greene County, Missouri. Petitioner’s direct appeal of his conviction and
sentence was denied. Respondent’s Exhibit I. Petitioner filed a motion for post-conviction relief
pursuant to Mo. Sup. Ct. R. 29.15, the denial of which was affirmed on appeal. Messier v. State, 398
S.W. 3d 508 (Mo. App. 2013). As a preliminary matter, respondent contends that, although petitioner
states in his petition that he raises four grounds, he actually raised only three grounds for relief.
Statute of Limitations
Respondent first contends that petitioner=s petition should be dismissed as untimely because (1)
direct review of petitioner’s state conviction concluded on October 31, 2008; (2) petitioner waited until
January 12, 2009 to file a post-conviction motion, which was concluded on February 22, 2013; and (3)
petitioner mailed his federal petition on March 25, 2014, almost three (3) months after the one-year
deadline for filing under 28 U.S.C. §2244(d)(1). Doc. No. 12, pp. 8-9. Respondent also argues that
petitioner offers no medical records to support his claims that his medical condition justifies his

untimely petition and has asserted no facts that he has been pursuing his rights diligently. Doc. No. 12,
pp. 9-10. In the alternative, respondent argues that petitioner’s claims are without merit. Doc. No. 12,
pp.10-23.
In reply, petitioner argues that his petition is within the one-year statute of limitations for federal
habeas because he did not have access to his legal papers or his medical records and that he has seizures
which make it hard for him to stand or sit for long periods of time. Doc. No. 16, p. 2. Because this case
presents an example in which Ait is considerably easier and thus more judicially efficient to affirm on the
merits than to untangle the complexities of the timeliness issue,@ this Court will address the merits of
petitioner=s grounds for relief. Jones v. Bowersox, 28 Fed. Appx. 610, 611 2002 WL 215523, **1 (8th
Cir. Feb. 13, 2002).
Factual Background
In ruling on petitioner’s motion for post-conviction relief, the Missouri Court of Appeals,
Southern District, set forth the following facts:
On the evening of April 10, 2006, Springfield Police Officer Chelsea Inlow
responded to a Springfield motel to find Robert Nishimoto (“Victim”) on a nearby
sidewalk. The officer observed that Victim “was bloody. There was blood coming from
his mouth, [and] blood coming from the back of his head.” There was also a pool of
blood beside Victim.
Crystal Page testified that she had been with [petitioner], Jennifer Cass, and a couple
of other people at a Springfield motel on April 10, 2006. Eventually she left with
[petitioner] to “get some alcohol out of the car,” and she saw Victim walking on the
sidewalk. [Petitioner] said, “[H]old on a second[,]” before running to his truck and
retrieving a black glove. [Petitioner] then punched Victim “in the head[,]” and Victim fell
down on the sidewalk, hitting his head. [Petitioner] “ke[pt] on punching [Victim]” on the
head and face “at least three or four” times. Page said “a bunch of people” ran out to see
what was happening, and she realized at some point that [petitioner] had departed. When
the police responded to the scene that night, Page falsely told them that she did not
“know anything about what happened.”
Cass recalled that [petitioner] and Page left the motel room “to go get the liquor [,]”
and after “awhile” she went to look for them. When she opened the door to go outside,
“[petitioner] was standing at the door.” [Petitioner] “said he had to beat this guy up.”
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Cass looked around the door and saw “a guy laying [sic] on the ground.” Cass began
“cussing” at [petitioner] and told him to leave. Cass admitted that she was awaiting
sentencing on an assault case of her own and hoped to receive a favorable sentence after
giving her testimony in [petitioner's] case.
Springfield Police Detective Daron Wilkins interviewed [petitioner] on April 11,
2006. He advised [petitioner] of his MirandaFN3 rights and noticed that [petitioner] signed
the rights-notice form with his left hand. Detective Wilkins noticed that [petitioner's] “left
hand was swollen[,]” and showed “some bruising[.]” He photographed [petitioner's]
hand after the interview, and two of the photos were admitted into evidence. A video
recording of the interview was made, and portions of it were played for the jury from
State's Exhibit 14.FN4 The following day, Detective Wilkins recovered a pair of black
gloves from Ms. Evans. The detective did not observe blood on the gloves, but he was
not surprised based upon his experience with fighting.
FN3. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
FN4. The videotape has not been deposited with the Court, but both parties' briefs
indicate that during the interview [petitioner] said he saw other men beating Victim, and
he helped Victim stand up.
Dr. Steven Quinn, “an oral and maxillofacial surgeon,” treated Victim and discovered
that he had suffered a fracture to the bone around the eye socket and “lots of fractures” to
the maxillary bone. In lay terms, the maxillary bone was “smashed[.]” Dr. Quinn said the
maxillary injury could have been caused by an object or a “forceful punch” to the
cheekbone. He said that if a person was upright the face could “recoil.” Victim's injuries
would more easily have resulted from being punched while lying down on concrete, such
as on a sidewalk. The doctor said that Victim may not have bled “instantaneously [.]” He
performed surgery on Victim to reposition some bone, and he screwed a titanium plate
across “the zygomatic arch” in Victim's skull to stabilize it for healing purposes. Without
the surgery, Victim could have experienced “major interference with [his] ability to work
[his] lower jaw.” Additionally, unless the bones were correctly positioned, the muscles
around the eye could have been “abnormally pull[ed.]” Without treatment of the
depressed area and reinforcement of the cheekbone, Victim's face would have looked
different, with “a flattening of th[e] whole area of the cheek.”
[Petitioner] did not testify. Victim did not recall how he suffered his injuries. Victim
recalled waking up in the hospital “like three or four days afterwards.” He testified that
he still suffered “drooping of [his] face [,]” which would also “go numb on [the] right
side.”
Messier v. State, 398 S.W. 3d at 510-511.
Before the state court findings may be set aside, a federal court must conclude that the state
court’s findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432
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(1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d
1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner=s burden to establish by
clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. ' 2254 (e)(1).1
Because the state court’s findings of fact have fair support in the record and because petitioner has failed
to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers
to and adopts those factual conclusions.
Ground One – Denial of a Continuance
In Ground One, petitioner contends that the trial court erred by denying his request for a
continuance on the morning of the trial based on the State’s disclosure of Dr. Steven Quinn as an expert
witness thirteen days earlier. Doc. No. 1, pp. 5-6, 19, and 21. In ruling on this claim on direct appeal,
the state appellate court held:
This appeal stems from the State’s endorsement of Dr. Quinn, less than two
weeks before trial, to testify about the nature and extent of the victim’s injuries; how
those could have occurred; and Dr. Quinn’s surgery thereon. Defense counsel
interviewed Dr. Quinn a week before trial, then sought a continuance to pursue medical
evidence that prior injuries/surgeries to [petitioner’s] left handFN2 meant he could not
have hit the victim that hard – evidence that [petitioner] claims could have “nullified Dr.
Quinn’s testimony and led to his acquittal.”
FN2. The State’s theory was that [petitioner], who is left-handed, repeatedly beat the
victim with his left fist.
[Petitioner] has not shown the trial court abused its discretion by refusing a
continuance. In June 2006, the State filed its information charging [petitioner] with firstdegree assault, and disclosed Dr. Quinn and his medical records regarding the victim’s
injuries and treatment. [Petitioner] does not claim, and we find no suggestion of, a
material variance between Dr. Quinn’s records and his eventual testimony. Thus,
although Dr. Quinn was not formally endorsed until later, [petitioner] had known about
him for months and had his medical records for nearly as long as the felony information
had been filed. Throughout the same pretrial period, there also seemingly was no real
1

In a proceeding instituted by an application for writ of habeas corpus by a person in custody pursuant to a
judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of correctness by Aclear and convincing
evidence.@ 28 U.S.C. ' 2254(e)(1).

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question about the victim’s injuries; no secret that “serious physical injury” was an
element of the charge; no dispute that the defense knew about [petitioner’s] alleged lefthand problems; and no real reason [petitioner] could not have sought to earlier depose or
interview Dr. Quinn. [Petitioner] simply has not made the “very strong showing” needed
to convict the trial court of abusing its discretion. Compare, e.g., State v. Christeson, 50
S.W. 3d 251, 261-62 (Mo. banc. 2001); [State v.] Deason, 240 S.W. 3d [767,] 771-72
[(Mo. App. 2007)]; State v. Lucas, 218 S.W. 3d 626, 629-30 (Mo. App. 2007); State v.
Hibler, 21 S.W. 3d 87, 92-94 (Mo. App. 2000); [State v.] Downen, 3 S. W. 3d [434,] 438
[(Mo. App. 1999)].
Nor has [petitioner] carried his burden as to prejudice. The State’s witnesses
included an acquaintance of [petitioner’s] who watched him attack and beat the victim.
A second acquaintance testified that [petitioner] told her he had just “beat this guy up.”
This witness then looked outside; saw the victim lying on the ground; checked on him
and found he “wasn’t moving, just laying there ;” got angry with [petitioner]; started
cussing him; told him to leave; and asked someone to call 911. This direct testimony,
coupled with [petitioner’s] lies to police about his identity and other inculpative evidence,
belies [petitioner’s] bald assertion that given more time, he could have found medical
evidence that “would have . . . led to his acquittal.”
Respondent’s Exhibit I, pp. 3-4(footnote 1 omitted).
Initially, any claim by petitioner that the state violated Missouri’s disclosure or discovery rules is
a question of state law, which cannot be re-examined by this Court in federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at
68.
In Ungar v. Sarafite, 376 U.S. 575 (1964), the United States Supreme Court set forth the
standard governing an accused’s constitutional right to a continuance: “[t]he matter of continuance is
traditionally within the discretion of the trial judge, and it is not every denial of a request for more time
that violates due process.” Id. at 589. “There are no mechanical tests for deciding when a continuance
is so arbitrary as to violate due process. The answer must be found in the circumstances . . . ,
particularly in the reasons presented to the trial judge at the time the request is denied.” Id.

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As respondent argues in his response, petitioner failed to demonstrate that the denial of the
motion for a continuance was an abuse of discretion by the trial court because the state had complied
with Mo. Sup. Ct. R. 25.03 by disclosing the victim’s medical records, including Dr. Quinn’s reports,
and by notifying petitioner’s trial counsel of their intent to call Dr. Quinn as a witness. Thus, trial
counsel had adequate time to investigate and prepare to respond to whatever opinions Dr. Quinn might
have, and trial counsel failed to demonstrate a valid reason for failing to conduct his own investigation
in response thereto. Moreover, petitioner’s claim that a theoretical witness existed to contradict Dr.
Quinn’s theory that the most significant injury occurred after the victim was on the ground was pure
speculation as shown by petitioner’s failure to produce such a witness at either his motion for new trial
or his post-conviction motion hearing.2 Doc. No. 12, p. 18. Given that Ms. Cass testified that she did
not see the actual assault but rather that petitioner confessed to her that he hit the victim, any such
witness testifying that petitioner was physically incapable of causing the victim’s injuries would not
have undermined Ms. Cass’s testimony in any event. Id.
In Middleton v. Roper, 498 F. 3d 812, 815-17 (8th Cir. 2007), moreover, the United States Court
of Appeals for the Eighth Circuit upheld the denial of habeas relief where the trial court denied a request
for a continuance even though the government disclosed evidence ten days before trial. The Eighth
Circuit reasoned that the state court’s finding that petitioner had not been prejudiced or deprived of due
process because defense counsel already had information about the witnesses through previous hearings
or police reports was not an unreasonable application of Supreme Court precedent.
Based on the above discussion, the state courts’ rulings were not “contrary to, or [did not
involve] an unreasonable application of, clearly established Federal Law, as determined by the Supreme

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Even if petitioner were to attempt to raise a claim that counsel was ineffective for failing to present evidence
contradicting Dr. Quinn, he failed to raise such a claim on appeal from denial of his post-conviction motion, so it
would be procedurally barred from federal habeas corpus review.

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Court of the United States” or did not result “in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. §
2254(d)(1) and (2). Ground One will be denied.
Grounds Two and Three – Failure to Instruct on Lesser-Included Offenses
In Ground Two, petitioner contends that appellate counsel was ineffective for failing to brief the
issue of whether the trial court should have instructed the jury on the lesser-included offense of assault
in the third degree based on recklessly causing physical injury. In Ground Three, petitioner raises the
failure of appellate counsel to brief the trial court’s failure to instruct on assault in the third degree by
recklessly creating a grave risk of serious physical injury. Doc. No. 1, pp. 6-9, 18, and 20.
The trial court instructed the jury on the charged offense of assault in the first degree (knowingly
causing serious physical injury) and the lesser-included offense of assault in the second degree (based on
the theory that petitioner “recklessly caused serious physical injury to [Victim] by striking him in the
head with his fist[.]” Messier v. State, 398 S.W. 3d at 511-512. The trial court refused to give the
instructions marked A and B, and the jury convicted petitioner of first-degree assault. Id. at 512.
Although petitioner raised his claims that the trial court committed prejudicial error in not
allowing petitioner’s Instructions A and B on the lesser-included offenses of third-degree assault in his
motion for new trial, the claims were not raised on direct appeal. Rather, petitioner raised claims in his
Rule 29.15 post-conviction motion that direct appeal counsel was ineffective for failing to raise the trial
court’s failure to instruct on third-degree assault. Petitioner’s appellate counsel did not testify in person
at the Rule 29.15 evidentiary hearing, but post-conviction counsel offered appellate counsel’s testimony
in the form of an affidavit (Exhibit 1). Appellate counsel stated in his affidavit that he did not raise such
claims because he did not believe that there was any evidence to support a conviction for third-degree
assault and, therefore, did not feel that it was a meritorious claim. Messier v. State, 398 S.W. 3d at 512.
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In denying these claims on appeal from denial of post-conviction relief, the Missouri Court of
Appeals, Southern District, held:
Assuming, arguendo, that the evidence presented at [petitioner’s] trial would have
supported a claim that the trial court erred in rejecting [petitioner’s] proffered
instructions, [] [petitioner] cannot prevail because “[t]he failure to give a different lesserincluded offense instruction is neither erroneous nor prejudicial when instructions for the
greater offense and one lesser-included offense are given and the defendant is found
guilty of the greater offense.” [State v.] Johnson, 284 S.W. 3d [561] at 575 [Mo. banc
2009) (emphasis added in original); see also State v. Johnston, 957 S.W. 2d 734, 751-52
(Mo. banc 1997) (where defendant was convicted “of the greater of the two instructed
crimes, he could not have been prejudiced by the refusal to give an instruction on yet
another lesser crime”).
Here, a verdict director for the lesser-included offense of assault in the second
degree based on [petitioner’s] having “recklessly caused serious physical injury to
[Victim] by striking him in the head with his fist” was given, but the jury nonetheless
found [petitioner] guilty of first-degree assault. [Petitioner] could not have been
prejudiced by the trial court’s failure to instruct on the other lesser-included crimes. See
Johnson, 284 S.W. 3d at 575; Johnston, 957 S.W. 2d at 751-52.
The claims that [petitioner] asserts his appellate counsel should have raised in his
direct appeal would not have required a reversal of [petitioner’s] conviction if they had
been made. As a result, appellate counsel was not ineffective for failing to assert them.
See Moss[v. State], 10 S.W. 3d [508] at 514 [Mo. banc 2000)]. [Petitioner’s points are
denied, and the motion court’s order denying post-conviction relief is affirmed.
Messier v. State, 398 S.W. 3d at 513.
In reviewing a claim of ineffective assistance of direct appellate counsel, Aa court must apply the
familiar test enunciated in Strickland v. Washington,[466 U.S. 668, 687 (1984)].@ Boliek v. Bowersox,
96 F.3d 1070, 1073 (8th Cir. 1996). The failure of appellate counsel to brief every possible issue on
appeal does not render direct appellate counsel ineffective. Whitmill v. Armontrout, 42 F.3d 1154, 1156
(8th Cir. 1994), cert. denied, 516 U.S. 896 (1995). The process of A>winnowing out weaker arguments
on appeal and focusing on= those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.@ Smith v. Murray, 477 U.S. 527, 536 (1986)(quoting Jones v.

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Barnes, 463 U.S. 745, 751-52 (1983)). Direct appeal counsel is not ineffective for failing to raise a
meritless issue. Grubbs v. Delo, 948 F.2d 1459, 1464 (8th Cir. 1991), cert. denied, 506 U.S. 835 (1992).
Jury instructions involve questions of state law, and a federal court is not to Areexamine statecourt determinations on state-law questions.@ Lupien v. Clarke, 403 F.3d 615, 619 (8th Cir. 2005)
(citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). Both the Rule 29.15 motion court and the
Missouri Court of Appeals, Southern District, found that there was no prejudice to petitioner from the
trial court’s refusal to give the two additional lesser-included offense instructions because the jury
already had been given one lesser-included offense instruction and chose to convict petitioner of firstdegree assault in any event.
Moreover, A[t]he United States Supreme Court has never held that due process requires the
giving of lesser-included-offense instructions in noncapital cases.@ Dickerson v. Dormire, 2 Fed. Appx.
695, 696, 2001 WL 266967, **1 (8th Cir. Mar. 20, 2001).

Consequently, the United States Court of

Appeals for the Eighth Circuit Ahas consistently held that >the failure to give a lesser included offense
instruction in a noncapital case rarely, if ever, presents a constitutional question.=@ Id. (quoting Pitts v.
Lockhart, 911 F.2d 109, 112 (8th Cir. 1990), cert. denied, 501 U.S. 1253 (1991)).
Because petitioner cannot show that there is a reasonable probability that, but for direct appeal
counsel’s failure to raise trial court error as to the two proffered instructions, the result of his direct
appeal would have been different, petitioner has failed to demonstrate that direct appeal counsel was
constitutionally ineffective.

Grounds Two and Three will be denied in that the state court

determinations did not involve an unreasonable determination of the facts in light of the evidence or an
unreasonable application of federal law as determined by the United States Supreme Court under
Section 2254 (d).
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where a
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petitioner has made a substantial showing of the denial of a constitutional right.” To satisfy this
standard, a petitioner must show that a “reasonable jurist” would find the district court ruling on the
constitutional claim(s) “debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276 (2004). Because
petitioner has not met this standard, a certificate of appealability will be denied. See 28 U.S.C. § 2254,
Rule 11(a).
Accordingly, it is ORDERED that the petition for writ of habeas corpus is denied, and this case
is dismissed with prejudice.

/s/ Gary A. Fenner________________
GARY A. FENNER
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: October 1, 2014.

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