Volner v. Denney

Filing 18

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied; and (2) this case is dismissed with prejudice. Signed on September 23, 2014 by District Judge Brian C. Wimes. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
ELVIS W. VOLNER,
Petitioner,
vs.
LARRY DENNEY,
Respondent.

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Case No. 14-3166-CV-S-BCW-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner, who is confined at the Crossroads Correctional Center in Cameron, Missouri, filed
this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2010 convictions
and sentences for first degree murder, first degree robbery, and armed criminal action, which were
entered in the Circuit Court of Douglas County, Missouri. Petitioner’s conviction was affirmed on
appeal to the Missouri Court of Appeals, Southern District, in State v. Elvis Volner, No. SD30747 (Mo.
Ct. App. Dec. 9, 2011). Petitioner’s motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R.
29.15 was denied, Respondent’s Exhibit H, pp. 5-8, and the appeal from the denial thereof was
dismissed before it was briefed. Doc. No. 17. Petitioner raises two grounds for relief: (1) the trial court
abused its discretion in admitting into evidence two color autopsy photographs; and (2) post-conviction
counsel was constitutionally inadequate and ineffective because he did not present every issue petitioner
raised in his pro se Rule 29.15 motion and because he abandoned petitioner on appeal from the denial of
post-conviction relief.
FACTUAL BACKGROUND
In affirming the judgment of conviction and sentence of the Circuit Court of Douglas County,
Missouri, the Missouri Court of Appeals, Southern District, set forth the following facts:

[Petitioner], along with his brother Benny, his cousin Dennis, and
Dennis’s wife, Julia, convened at his apartment on February 9, 2008, and
planned an attack on Dustin Skaggs (“Victim”). [Petitioner] believed that
Victim had been sleeping with Benny’s wife. The group decided to scout
bodies of water in order to get rid of Victim’s car. The group first went to
Noblett Lake, but determined that they could not get a car far enough into
the water without being seen. The group then drove to Dennis and Julia’s
house in Hartville so that Julia could shower and change clothes. While in
the yard of the home, [petitioner] discovered a lead pipe that he planned to
use against Victim. At that point, Dennis asked Benny if he was going to
kill Victim, to which Benny replied, “No, [petitioner] is.” [Petitioner]
nodded his head affirmatively and smiled in response to Benny’s
statement.
The foursome then headed to a rock quarry in Lebanon in order to
determine if it would be an acceptable site to dump Victim’s vehicle.
When they arrived Benny kicked off the clips of the barbed wire fence
surrounding the quarry so that the strands of the fence were pliable.
Benny determined that the quarry would be a good site because it was
deep enough to sink a car to the bottom and [petitioner] stated that the
body would not come back up.
That night the group spent time at a nightclub in West Plains until
approximately 1:30 a.m., after which they ate an early breakfast at a truckstop. They then drove their Jeep to Old Highway 5 and parked on the
roadside with the hood popped up. They knew that the Victim would
eventually pass them on the way to his early-morning shift at a nursing
home in Mountain Grove. Not long after the Jeep was parked, Victim
drove toward the ambush. As Victim drove up, Julia flagged him down
with a flashlight and pretended to have car trouble, while Dennis and
Benny crouched in the backseat of the Jeep and [petitioner] hid in a nearby
ditch.
When Victim pulled up and opened his hood, thinking he would
help Julia jumpstart her car, [petitioner] ran out and struck Victim in the
head with the lead pipe he had acquired earlier. Victim started running
back across the highway in an attempt to get away. [Petitioner] continued
swinging the pipe at Victim as they made their way across the highway
and Victim eventually fell into a ditch. [Petitioner] continued to beat
Victim after he fell to the ground. Benny and Dennis eventually helped
load Victim’s body into the trunk of victim’s car. They then took both
vehicles to the rock quarry they found earlier, where they drove Victim’s
car into the water-filled quarry with his body still in the trunk.
Respondent’s Exhibit E, pp. 3-4.
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Before the state court findings may be set aside, a federal court must conclude that the state
court’s findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432
(1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d
1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner’s burden to establish by
clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. ' 2254 (e)(1).1
Because the state court’s findings of fact have fair support in the record and because petitioner has failed
to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers
to and adopts those factual conclusions.
GROUND ONE
In Ground One, petitioner claims that the trial court abused its discretion in admitting into
evidence two color autopsy photographs (State’s Exhibits 34 and 35). Doc. No. 1, p. 3. In reviewing
this claim on direct appeal, the state appellate court found it to be without merit:
In his sole point relied on, [petitioner] argues that the trial court
abused its discretion in admitting the autopsy photos of the Victim’s body
because “the photographs were so inflammatory as to interfere with the
jury’s rational thought process in deciding [petitioner’s] criminal
responsibility for the crime.” [Petitioner] therefore claims that he was
prejudiced by the admission of the photographs and deprived of his right
to a fair trial.
“A trial court has broad discretion in deciding whether to admit or
exclude evidence, and its ruling will not be disturbed on appeal absent a
clear showing of abuse of discretion.” State v. Smith, 330 S.W.3d 548,
553 (Mo. App. S.D. 2010). A decision to admit evidence constitutes an
abuse of discretion when the decision is clearly against the logic of the
circumstances and is so unreasonable and arbitrary that it shocks the sense
of justice and indicates a lack of careful consideration.” Id. Inflammatory
photographs – i.e., ones that tend to arouse anger, hostility, or passion –
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In a proceeding instituted by an application for writ of habeas corpus by a person in custody
pursuant to a judgment of a State court, a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness
by Aclear and convincing evidence.@ 28 U.S.C. ' 2254(e)(1).
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should not be excluded if they are otherwise relevant. State v. Johnson,
244 S.W. 3d 144, 161 (Mo. banc 2008); State v. Mort, 321 S.W. 3d 471,
482 (Mo. App. S.D. 2010). If photographs are gruesome, it is usually
because the crime itself was gruesome. Johnson, 244 S.W. 3d at 161.
Generally, gruesome photographs are admissible if they: (1) show the
nature and location of the victim’s wounds; (2) enable the jurors to better
understand the testimony at trial; and (3) aid in establishing an element of
the State’s case. Id. at 161-162. As long as a photograph is used for a
proper purpose, it in not necessary to exclude it as inflammatory or
because other evidence described what is shown. State v. Hill, 250 S.W.
3d 855, 858 (Mo. App. S.D. 2008).
Here, the disputed photographs were relevant to show the jury the
extent of Victim’s head injuries and to corroborate and provide context for
the medical examiner’s testimony. Each photograph was individually
addressed by a testifying witness to explain the nature and extent of
Victim’s injuries. The medical examiner who conducted the autopsy, for
example, used the photographs to demonstrate that Victim was killed by
blunt force trauma to the head which left multiple and severe head wounds
including skull fractures and a subarachnoid hemorrhage in the brain.
Because of the photographs’ relevance, the trial court did not abuse its
discretion in admitting them. [Petitioner] has not shown that the trial
court’s ruling was clearly against the logic of the circumstances and so
unreasonable as to show a lack of careful consideration. The point is
denied.
Respondent’s Exhibit E, pp. 4-5.
AAdmissibility of evidence is a matter of state law and usually does not form the basis for habeas
corpus relief.@ Hulsey v. Sargent, 821 F.2d 469, 472 (8th Cir.), cert. denied, 484 U.S. 930 (1987). In
order to merit habeas relief, trial court error in admitting certain evidence Amust be so great that it
infringes upon a specific constitutional protection or is so prejudicial that it amounts to a denial of due
process.@ Id. The Eighth Circuit has held that the admission of autopsy photographs, where they are
used for such purposes as identifying the victim and demonstrating the nature of the wounds involved
and the degree of the crime committed, does not constitute a violation of due process. See Hatley v.
Lockhart, 990 F.2d 1070, 1072 (8th Cir. 1993). See also Kuntzelman v. Black, 774 F. 2d 291, 292 (8th
Cir. 1985) (admission of photos depicting victim and his organs at various stages of autopsy not
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constitutional error), cert. denied, 475 U.S. 1088(1986); Walle v. Sigler, 456 F.2d 1153, 1155 (8th Cir.
1972) (AAdmittedly, the condition of the uncleansed corpse, as depicted by the photographs, is
gruesome. However, it must be noted that this condition is an inherent and inseparable part of the crime
with which this defendant was charged.@).
This Court finds that admission of the photographs in petitioner=s case did not unconstitutionally
infringe on his right to due process. After the trial court carefully considered petitioner’s objections to
the photographs at issue, he excluded two photographs (State’s Exhibits 21 and 31) and overruled
petitioner’s motion in limine as to the other photographs in order to describe the nature and extent of the
victim’s injuries and to assist the jury in understanding the medical examiner’s testimony about the
cause of death. Respondent’s Exhibit B, pp. 98-100, 111. Petitioner has failed to demonstrate with clear
and convincing evidence that the Missouri Court of Appeals= denial of his claim of trial court error was
based on an unreasonable determination of the facts in light of the evidence presented in the state courts
or was contrary to or was based on an unreasonable application of clearly established federal
constitutional law. See 28 U.S.C. 2254(d)(1) and (2). Ground One will be denied.
GROUND TWO
In Ground Two, petitioner contends that his post-conviction counsel was constitutionally
ineffective for failing to present every issue in the amended Rule 29.15 motion that petitioner had
presented in his original pro se Rule 29.15 motion and for abandoning petitioner on appeal from denial
of post-conviction relief. Doc. No. 1, pp. 3, 11. Originally, petitioner raised seven grounds for relief in
his pro se Rule 29.15 motion, stating “gruesome photo’s [sic], continusly [sic] liying [sic] from witness
[sic], lost evidence and tampering with evidence, prosucution [sic] leading wittness [sic] on, lack of
credible wittness [sic], shackled to bench while picking the jury, and cops didnt [sic] do full
investigation. Respondent’s Exhibit G, p. 3.
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In the amended Rule 29.15 motion filed by Assistant Missouri Public Defender Arthur Allen,
petitioner raised the following two grounds for relief: (1) trial counsel was ineffective for failing to
advise and recommend that petitioner testify on his own behalf that he was not an active participant in
the planning and execution of the murder and for failing to call him to testify to such at trial; and (2) trial
counsel was ineffective for failing to call petitioner’s mother, Tina Miller, to testify in contradiction of
the testimony of Danna Grogan that petitioner had threatened her if she did not testify that petitioner was
at the house at the time of the murder. Id. at 9. Both of the grounds post-conviction counsel raised in
the Rule 29.15 motion were denied as without merit in that “the decisions of trial counsel were matters
of trial strategy and were objectively and reasonably made.” Respondent’s Exhibit G, pp. 14-16.
Clearly, Rule 29.15 trial counsel did not abandon petitioner because he filed a timely amended
Rule 29.15 motion, which was denied by the state motion court. Rather, the state court record shows
that another state public defender failed to perfect the appeal from denial of post-conviction relief.
According to the October 15, 2013, Order of the Missouri Court of Appeals, Southern District, Rule
29.15 appeal counsel, Shaun J. Mackelprang, “failed to take further steps to secure appellate review
within the period of time allowed and that good cause has not been shown why this appeal should not be
dismissed.” A November 20, 2013, correspondence from the state appellate court clarifies that the
record on appeal was due 90 days from the date the Notice of Appeal was filed. Respondent’s Exhibit
F, pp. 11, 15.
If petitioner intends to assert an independent claim of ineffective assistance of post-conviction
counsel, petitioner’s claim is not cognizable in federal habeas. “The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in
a proceeding arising under section 2254.” 28 U.S.C. § 2254(i); see also Christenson v. Ault, 598 F.3d
990, 995-96 (8th Cir. 2010) (“There is no federal constitutional right to the effective assistance of post6

conviction counsel.”) (citation omitted). Although the United States Supreme Court recognized in
Martinez v. Ryan, 132 S. Ct. 1309 (2012), that ineffective assistance of post-conviction trial counsel
could constitute cause for the failure to raise a claim of ineffectiveness of trial counsel in a postconviction motion, the original grounds raised by petitioner that post-conviction counsel failed to raise
in the amended Rule 29.15 motion did not include any claim of ineffective assistance of trial counsel.
Because none of petitioner’s original pro se Rule 29.15 motion grounds included ineffective
assistance of trial counsel and because petitioner does not seek to excuse the procedural default of one of
his federal habeas claims, Martinez does not apply to any of his present grounds for relief. Moreover,
petitioner was not abandoned by his Rule 29.15 counsel because counsel filed an amended petition in a
timely manner, which was denied by the state Rule 29.15 motion court. See Respondent’s Exhibit G,
pp. 13-16. The fact that Rule 29.15 counsel did not raise all of the grounds in the amended Rule 29.15
motion that petitioner previously had raised in his pro se Rule 29.15 motion does not make the Rule
29.15 motion a “nullity” or demonstrate ineffectiveness of post-conviction trial counsel. See Jones v.
Barnes, 463 U.S. 751-52 (1983) (noting that effective appellate advocates “winnow out weaker
arguments on appeal focusing on one central issue if possible, or at most a few key issues”).
Finally, the fact that Rule 29.15 appeal counsel failed to perfect the appeal from denial thereof
does not constitute legally sufficient cause permitting a claim to be raised in federal court. Coleman v.
Thompson, 501 U.S. 722, 752-57 (1990); Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012).
Ground 2 will be denied.
A CERTIFICATE OF APPEALABILITY WILL BE DENIED
Under 28 U.S.C. ' 2253(c), the Court may issue a certificate of appealability only Awhere a
petitioner has made a substantial showing of the denial of a constitutional right.@ To satisfy this
standard, a petitioner must show that a Areasonable jurist@ would find the district court ruling on the
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constitutional claim(s) Adebatable or wrong.@ Tennard v. Dretke, 542 U.S. 274, 276 (2004). Because
petitioner has not met this standard, a certificate of appealability will be denied. See 28 U.S.C. ' 2254,
Rule 11(a).
Accordingly, it is ORDERED that:
(1) the petition for writ of habeas corpus is denied; and
(2) this case is dismissed with prejudice.

/s/ Brian C. Wimes_______________
BRIAN C. WIMES
UNITED STATES DISTRICT JUDGE
Kansas City, Missouri,
Dated: September 23, 2014.

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