United States District Court, E.D. Missouri, Eastern Division
GREGORY E. STEVENSON, Petitioner,
IAN WALLACE, Respondent.
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on the motion of Missouri state prisoner Gregory E. Stevenson for reconsideration under Federal Rule of Civil Procedure 59(e) of this Court's Memorandum and Order denying his amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that the Court erred in concluding that claims in his amended petition had been procedurally defaulted and that a basis to excuse the default was not shown. For the reasons set forth below, Petitioner's motion for reconsideration will be granted with respect to the claim that defense counsel was ineffective in failing to strike a certain juror for cause. The Court concludes that cause for the procedural default of this potentially-meritorious claim exists, and that an evidentiary hearing is warranted on the merits of the claim.
Petitioner was convicted of one count of felony assault of a law enforcement officer and one count of armed criminal action for shooting at the officer. He titled two separate claims in his amended petition for federal habeas relief (Doc. No. 31) as "Ground 2." In the first Ground 2 he claimed that his trial counsel was ineffective for failing to move to strike a certain juror for cause after she stated in voir dire that she had friends who were police officers and that she could therefore not be impartial. In the second Ground 2 Petitioner asserted that direct appeal counsel was ineffective in failing to raise a due process claim based on this juror sitting on the jury that convicted Petitioner. In Ground 4 he claimed that his trial counsel was ineffective for failing to investigate and uncover that a witness who testified for the state, Stacey Townsend, was facing federal charges at the time of his testimony.
In its January 28, 2014 Memorandum and Order, the Court concluded, in relevant part, that the above claims were procedurally defaulted because they were not raised to the motion court in Petitioner's state post-conviction proceedings. The Court further concluded that Martinez v. Ryan, 132 S.Ct. 1309 (2012) (holding that "inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial" where the prisoner demonstrates that "the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit"), did not did provide a basis for overcoming the defaults.
In so holding, the Court was not clear in its treatment of the first Ground 2 and the second Ground 2 as separate claims. With respect to Ground 4, the Court held that this defaulted claim of ineffective assistance of trial counsel was not "substantial" in light of the entire record. Petitioner now asserts that the Court erred in ruling that Martinez did not warrant a finding of cause and prejudice to excuse his default of the claims in the first Ground 2 and in Ground 4, and further that these claims have merit. Petitioner focuses his argument on the first Ground 2 claim, that is, that his trial counsel was ineffective in failing to strike the juror in question for cause, and that the ineffective assistance of initial post-conviction counsel excuses the default of this claim.
With respect to Ground 4, Petitioner alleges no facts, omissions of fact, or errors of law applicable to the Court's previous holding that this defaulted claim of ineffective assistance of trial counsel was not "substantial" in light of the entire record. For this reason, the Court concludes that Petitioner has not demonstrated a basis for relief under Rule 59(e) with respect to Ground 4.
A more difficult question is presented with respect to the first Ground 2. Martinez reiterated the general principle that "[a] prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." Martinez, 132 S.Ct. at 1316. Martinez added to the jurisprudence of the doctrine of procedural default that such cause can be established by showing that initial-review post-conviction counsel was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), in not raising the defaulted claim to the motion court. Id. at 1318. Specifically, Petitioner must demonstrate that post-conviction counsel's performance was deficient and that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
Turning to the record in the case, at voir dire, defense counsel asked the venirepanel whether anyone had family members who were attorneys, probation officers, or law enforcement officers in the area. After several panel members answered and were questioned further as to whether they could be impartial, the following exchange took place:
VENIREMEMBER SCHOENBERGER: I have three good friends that are police officers.
DEFENSE COUNSEL: Okay.
VENIREMEMBER SCHOENBERGER: They're in St. Louis County and one in Jefferson County. But I don't ...