United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN C. HAMILTON, District Judge.
This matter is before the Court on Missouri State prisoner Robert Gamble's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.
On June 24, 2009, a jury in the Circuit Court of the City of St. Louis, Missouri, found Petitioner guilty of one count of second-degree murder and one count of armed criminal action. On August 28, 2009, Petitioner was sentenced as a persistent offender to concurrent terms of thirty and ten years imprisonment. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Gamble, 313 S.W.3d 709 (Mo. App. 2010). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied after a partial evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Gamble v. State, 393 S.W.3d 619 (Mo. App. 2013).
Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following two claims for relief:
(1) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object and request a mistrial based on prosecutorial misconduct; and
(2) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to investigate and subpoena Detective Jackson. The Court will address the claims in turn.
I. Ground 1
As stated above, in Ground 1 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to object and request a mistrial based on prosecutorial misconduct. (§ 2254 Petition, PP. 10-12). Specifically, Petitioner asserts the prosecutor, "MISTATED & ARGUED THAT APPELLANT APPROACHED A WHITE FEMALE IN A THREATING MANNER & INAPPROPRIATELY TOUCHED & PLACED HIS HANDS ON HER OUTSIDE OF THE CENTER" WHEN THIS QUESTIONING INFERRED UNCHARGED PRIOR BAD ACTS EVIDENCE & WHERE THERE WAS NO SUPPORT FOR THE ALLEGATIONS." ( Id., P. 10). Petitioner raised this claim before the 29.15 post-conviction motion court, and the court denied the claim as follows:
The first allegation in Movant's amended motion is that his trial counsel failed to object and request a mistrial based on prosecutorial misconduct when the prosecutor misstated and argued that Movant approached a white female in a threatening manner and inappropriately touched and placed his hands on her outside of the New Life Center, when this questioning inferred uncharged prior bad acts evidence and where there was no evidentiary support for the allegations. Movant contends the objection would have been meritorious because the statements were not supported by the evidence and he denied he inappropriately touched or threatened the white female. Movant states that the misstatement allowed the State to argue that the white female yelled for help inferring that Movant hit her or inappropriately touched her. (Tr. 366) Movant further argues that absent the admission of these misstatements, the jury would have found that he acted in self-defense and acquitted him.
When asked if there was a good faith basis for the Assistant Circuit Attorney's statement that the female outside the New Life Center was inappropriately touched by Movant, trial counsel responded "sort of" based on the facts, that perhaps he should have objected to the phrasing of "inappropriate touching" because it suggested something sexual but that at the time of trial he believed it was part of the res gestae of the case. On cross-examination counsel testified he understood Movant approached her, asked if she was okay, she shoved him and shouted for others to help her.
There was significant evidence of Movant's guilt at trial as well as evidence negating that he acted in self-defense. Movant based his self-defense theory on his fear from being jumped by the young men at the New Life Center after the female yelled for help after Movant approached her, which was several hours prior to the stabbing of Jeremy Dunlap. Two eyewitnesses, Percy Brown and Jimmy Parker, testified as to the events at the time of the stabbing and nothing in their testimony supported self-defense. Their testimony also differed significantly from that of Movant's at trial. There was also evidence that the victim was not one of the young men who earlier attacked Movant. The Court finds that there is no reasonable probability that the result of the trial would have been different or that Movant would have been found to have acted in self defense had this evidence not been allowed. It is not sufficient that the action had some conceivable effect on the outcome of the proceeding, rather movant must show that there is a reasonable probability that but for the errors of counsel, the jury would have had a reasonable doubt. Sidebottom, supra at 796.
(Respondent's Exh. F, PP. 65-67). Petitioner advanced the claim on appeal of the denial of his Rule 29.15 motion, and the Missouri Court of Appeals denied the claim as follows:
For his first point, movant asserts that the motion court clearly erred in denying, after an evidentiary hearing, relief on his claim that trial counsel was ineffective because he failed to object and request a mistrial based on prosecutorial misconduct when the prosecutor misstated and argued that movant approached a woman, who was outside of the homeless shelter, in a threatening manner and inappropriately touched her, because this implied uncharged prior bad acts of which there was no evidence in the police reports. Movant is referring to two questions the prosecutor asked him on cross-examination and a statement in closing argument.
Before discussing this issue, it is necessary to set out the context in which the questions on cross-examination and the statement in closing argument arose. During the investigation of the stabbing, movant told a police officer that the sequence of events leading to the stabbing started with his encounter with the woman. In opening statements, the prosecutor did not discuss the incident involving the woman. However, defense counsel outlined the evidence he planned to present about movant's encounter with the woman and the subsequent beating to support the defense theory that it was the stabbing victim who initiated the attack on movant later that night along with at least two others who had beat movant earlier.
On direct examination, movant testified to his arrival at the Center at 7:30 p.m. on the day of the stabbing, his encounter with the woman in which she pushed him down the steps and reported he had hit her, and his beating by a group of men. On cross examination, the prosecutor questioned movant about this encounter, beginning with his arrival at the Center and when he first saw the woman.
Q [The Prosecutor]: And Mr. Gamble, at some point, she started yelling and screaming for help; isn't that true?
A [Movant]: Yes, she did.
Q: And that's because you approached her and touched her inappropriately; isn't that true ?
A: No, sir.
Q: You placed your hands on her and approached her in a threatening ...