Reed v. Wills

Filing 11

ORDER: ORDERED that: (1) the petition for writ of habeas corpus is denied; and(2) this case is dismissed with prejudice. Signed on May 6, 2015 by District Judge Brian C. Wimes. (Thoennes, Cindy)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BUSTER REED,

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Petitioner,
vs.
ROBERT WILLS,
Respondent.

Case No. 14-3548-CV-S-BCW-P

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at the Sexual Offender Rehabilitation
and Treatment Services Unit in the Southeast Missouri Medical Health Center in Farmington,
Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
challenges his 2013 adjudication and commitment as a sexually violent predator.
Petitioner asserts two (2) grounds for relief: (1) petitioner’s right to due process was violated
when the state’s expert “was permitted to testify to a definition of ‘mental abnormality’ that was
contrary” to Missouri law; and (2) there was insufficient evidence to support his conviction. Doc. No.
1, pp. 5, 7. Respondent contends that both grounds are without merit.
FACTUAL BACKGROUND
Petitioner was determined to be a sexually violent predator in accordance with Mo. Rev. Stat. §
632.480 on February 6, 2013, in the Greene County Circuit Court in Springfield, Missouri. The
Missouri Sexually Violent Predator Act directs that sexually violent predators be committed to the
custody of the Department of Mental Health for care, custody, and control. The Missouri statutes
provide for a release procedure when individuals meet statutory criteria. See Mo. Rev. Stat. §§
632.489, 632.501, 632.505. Petitioner filed a direct appeal of his commitment on May 19, 2014,
which was denied. Resp. Ex. H; Resp. Ex. I.

GROUND 1
In Ground 1, petitioner alleges that the trial court violated his due process rights when the
State’s expert allegedly testified to an improper definition of “mental abnormality.” Doc. No. 1, p. 5.
This claim was presented to the Missouri Court of Appeals, Southern District, which denied relief as
follows:
Point I involves an objection and court ruling during testimony by the State’s
expert witness, Dr. Leavitt:
Q. Turning to the idea of a mental abnormality, what does Missouri law
require you to look at to determine if someone has one of those?
A. Well, the definition is that a mental abnormality, which is a legal
term, a legal definition of mental abnormality is that it’s an emotional,
an acquired -- or I should say an acquired or environmental condition
that -- excuse me, acquired or hereditary condition that affects one’s
emotional or volitional capacity to a degree which predisposes an
individual to engage in acts that would make himself a menace to the
safety and welfare of –
MR. BANKS: Your Honor, I object. May we approach, please?
As relevant here, defense counsel (Mr. Banks) then objected that
Dr. Leavitt is misstating the law in Missouri. Nothing in our
definition of mental abnormality has anything to do with being a
menace to society. So, I would ask that the witness get the definition
right and then the jury be instructed that that was not a correct
definition of Missouri law.
MR. SCHLOTZHAUER: That is what is stated in the statute,
but Mr. Banks is correct in that the Supreme Court decision in Thomas
versus State changed that last line to say serious difficulty controlling
behavior. So, I mean, it’s right and it’s wrong.
MR. BANKS: There’s nothing in the current statute about
being a menace.
THE COURT: All right. The objection is overruled. The
attorney for the State should endeavor to make sure the witness quotes
the law precisely to the extent he needs to quote the law to tell the jury
the standard to which he was evaluating the Respondent. Beyond that,

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it can be covered in cross-examination. The request to instruct the jury
is denied. Anything further?
MR. BANKS: No, Your Honor.
THE COURT: Okay. We will be off the record.
PROCEEDINGS RETURNED TO OPEN COURT:
THE COURT: Mr. Schlotzhauer.
MR. SCHLOTZHAUER: Thank you.
Q. (By Mr. Schlotzhauer) Doctor, we were talking about the Missouri
definition of a mental abnormality. Does that condition under mental
abnormality have to predispose the person to commit sexually violent
offenses?
A. Yes.
Q. And does it have to cause them serious difficulty controlling their
behavior?
A. Yes.
[Petitioner]’s complaint about this ruling fails for several reasons. His
counsel’s twice-stated objection that “menace” plays no part in the statutory definition
was not correct. On that basis alone, the court did not abuse its discretion in ruling as
it did.
The Thomas case cited at trial and by [petitioner] on appeal did not purport to
limit or strike down any statute, or involve witness testimony (as here), but perceived
that federal due process required revision of MAI’s verdict director in SVP cases.
Here, however, [petitioner] makes no claim that this jury was improperly instructed
and we see no reason to deviate from the usual presumption that jurors follow the trial
court’s instructions. See, e.g., State v. McFadden, 391 S.W.3d 408, 424 (Mo. banc
2013).
We could not say Dr. Leavitt’s testimony was materially “wrong” in any event.
[Petitioner] does not challenge that testimony as a whole, just the few words
immediately before his attorney objected and cut Dr. Leavitt off mid-sentence,
preventing him from finishing whatever he would have said. Without criticizing
counsel’s timing, his “menace” objection was incorrect as noted above, and Dr. Leavitt
addressed Thomas concerns (so to speak) immediately after the objection was
overruled.

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Finding neither abuse of discretion nor prejudice in this proper, garden variety ruling
by the trial court, we deny Point I.
(Resp. Ex. I, pp. 2–4) (footnotes omitted).
In order to raise a claim that testimony violated the Constitution’s Due Process Clause,
petitioner must show an error that “resulted in a trial so fundamentally unfair as to violate due process.”
Pickens v. Lockhart, 714 F.2d 1455, 1454 (8th Cir. 1983) (citing Cooley v. Lockhart, 839 F.2d 431, 432
(8th Cir.1988)); see also Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir.1990). “The habeas
petitioner must establish an error which demonstrates a violation of due process by a burden much
greater than that required on direct appeal and even greater than the showing of plain error.” Mendoza
v. Leapley, 5 F.3d 341, 342 (8th Cir.1993); Schneider v. Delo, 890 F.Supp. 791, 835 (E.D. Mo. 1995).
Petitioner has failed to “show that the alleged error rendered the entire trial fundamentally
unfair - 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.”
Harris v. Bowersox, 184 F.3d 744, 752 (8th Cir. 1999) (citing McDaniel v. Lockhart, 961 F.2d 1358,
1360 (8th Cir. 1992)), cert. denied, 528 U.S. 1097 (2000). Because petitioner makes no showing
that his due process rights were violated and because federal habeas review is narrow and limited as set
forth in 28 U.S.C. §2254(d)(1) and (2), Ground 1 will be denied.
GROUND 2
In Ground 2, petitioner alleges that the trial court erred by denying his motion for acquittal
during trial because there was insufficient evidence to allow the case to go to the jury. Doc. No. 1, p.
7. A federal habeas court may not overturn a state court decision regarding a sufficiency of the
evidence challenge simply because it disagrees with the state court; a federal court may only overturn
the decision if it was “objectively unreasonable.” Cavazos v. Smith, 132 S. Ct. 2, 3 (2011). The

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Missouri Court of Appeals, Southern District, considered petitioner’s argument of insufficient
evidence and denied relief:
We reject [petitioner]’s claim that the State failed to prove his likelihood “to engage in
predatory acts of sexual violence if not confined,” see In re O’Hara, 331 S.W.3d 319,
319-20 (Mo.App. 2011), because
our review is limited to determining whether the evidence was
sufficient to convince twelve reasonable jurors that [petitioner] was
likely to re-offend unless confined. We will reverse only if there is a
complete absence of probative fact in support of the jury’s conclusion.
We view the evidence most favorably to the jury verdict and disregard
all contrary evidence and inferences.
Id. at 320 (citations omitted).
Dr. Leavitt testified without objection that [petitioner] “is more likely than not
to commit future acts of sexual predatory violence if not confined to a secure facility”
and “is a sexually violent predator under the Missouri statute and sexually violent
predator law,” and cited test results and other support for his expert opinions. “This
alone precludes us from finding a complete absence of probative fact to support the
verdict, or that twelve reasonable jurors could not find from the evidence that
[petitioner] was likely to re-offend.” Id.
[Petitioner]’s criticism on appeal of Dr. Leavitt’s testimony
misses the distinction between admissibility of expert testimony and
submissibility of a case based thereon. If a question exists as to
whether proffered expert testimony is supported by a sufficient factual
or scientific foundation, the question is one of admissibility, which
must be raised by a timely objection or motion to strike. Once an
expert opinion has been admitted, as any other evidence, it may be
relied upon for purposes of determining the submissibility of the case.
Id.
[Petitioner] implicitly invites us to reweigh the evidence, which we cannot do.
In re Morgan, 398 S.W.3d 483, 490 (Mo. App. 2013). Likewise, jurors did not have
to accept the views of [petitioner]’s expert. Id. Conflicting opinions from Dr.
Leavitt and [petitioner]’s expert represented “‘nothing more than a factual issue for the
jury to resolve in determining which expert opinion to credit in making its decision.’”
Id. (quoting Turner v. State, 341 S.W.3d 750, 754 (Mo. App. 2011)).

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Dr. Leavitt’s testimony “was sufficient to allow a reasonable juror to find by
clear and convincing evidence that [petitioner] was a SVP.” Id. (citing O’Hara, 331
S.W.3d at 320). We deny Point II and affirm the judgment.
(Resp. Ex. I, p. 4–5) (emphasis in original) (footnotes omitted).
The Missouri Court of Appeals’ resolution of petitioner’s claim that there was insufficient
evidence to send his case to the jury was not based on an unreasonable determination of the facts or on
a misapplication of federal constitutional law. See 28 U.S.C. 2254(d)(1) and (2); Jackson v. Virginia,
443 U.S. 307, 319 (1979) (constitutional standard for judging sufficiency of the evidence is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt”). “In applying this
standard, ‘[t]he scope of our review for a collateral challenge to the sufficiency of the state’s evidence
is extremely limited . . . We must presume that the trier of fact resolved all conflicting inferences in the
record in favor of the state, and we must defer to that conclusion.’” Sexton v. Kemna, 278 F.3d 808,
814 (8th Cir. 2002) (citing Miller v. Leapley, 34 F.3d 582, 585 (8th Cir. 1994)), cert. denied, 537 U.S.
886 (2002).
The finding of the Missouri Court of Appeals is reasonable, entitled to deference, and
supported by the record. At trial, the state adduced testimony from a mental health expert, who
opined that petitioner met each of the elements of Missouri’s Sexually Violent Predator law (e.g., (1)
petitioner previously has committed a sexually violent offense as defined by Missouri law; (2) the
presence of a mental abnormality which causes petitioner serious difficulty controlling his behavior;
and (3) sufficient future risk—that is that petitioner is more likely than not to commit a future act of
sexual predatory violence unless confined to a secure facility). Because the appellate court’s ruling
did not result 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 in “a decision

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that was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding,” see U.S.C. § 2254(d)(1) and (2), Ground 2 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
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: May 6, 2015.

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