United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, Magistrate Judge.
This matter is before the Court on Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. No. 13). After reviewing the case, the Court has determined that Petitioner is not entitled to relief. As a result, the petition will be dismissed.
I. PROCEDURAL BACKGROUND
On November 30, 2009, a jury found Petitioner guilty of first-degree assault and armed criminal action. (Resp't. Ex. B at 35). On January 7, 2010, a judge in the Circuit Court of St. Louis County, Missouri, sentenced Plaintiff to two 15-year sentences to run concurrently. ( Id. at 35-37). The Missouri Court of Appeals affirmed Petitioner's conviction. (Resp't Ex. E at 4-5). On December 23, 2010, Petitioner filed a motion for post-conviction relief under Missouri Rule 29.15, which was subsequently amended by appointed counsel and denied by the trial court after a hearing. (Resp't Ex. G at 3-9, 14-25, 32-37). On September 11, 2013, the Missouri Court of Appeals affirmed the decision of the trial court. (Resp't Ex. J).
On April 9, 2013, Petitioner filed the instant petition before this Court, and he filed an Amended Petition on August 12, 2013. (Doc. Nos. 1 & 16). In his Amended Petition, he raised two grounds of relief: (1) that he was denied his right to due process under the U.S. and Missouri Constitutions; and (2) that he was denied effective counsel because his trial counsel failed to request that the trial court submit an instruction on the lesser-included offense of second-degree assault. (Doc. No. 16 at 5-7). After Respondent filed a motion for more definite statement as to the first ground, Petitioner voluntarily moved to dismiss the first ground, and the Court granted Petitioner's motion. (Doc. Nos. 17-19). Thus, only Petitioner's second ground of relief is currently before the Court. Respondent argues that this claim is without merit.
II. FACTUAL BACKGROUND
The Missouri Court of Appeals set forth the factual background of Petitioner's case as follows:
The State charged [Petitioner] as a prior offender with first-degree assault and armed criminal action. The evidence presented at trial, viewed in the light most favorable to the verdict, is as follows:
On December 7, 2007, DeAndra Pointer (Pointer) was talking to a friend outside a deli in Riverview. The deli was located between an apartment complex and a fire department. While Pointer and his friend were talking, several other people were nearby, including two women, several firefighters, and two children aged four and nine.
At one point, Pointer turned around and saw [Petitioner], one of his neighbors, standing on the opposite side of the street trying to load a gun. [Petitioner] raised the gun and aimed it at Pointer. Pointer and his friend both started to run away. As he was running, Pointer grabbed the two children, ran between some cars, and told the children to stay down. Pointer looked up after hearing a gunshot, saw [Petitioner] coming toward him, and started to run again. [Petitioner] fired the gun again and Pointer turned around to see [Petitioner] stopping to take aim at him.
Pointer heard one or two more shots as he was running away. After fleeing, one of Pointer's friends picked him up and drove Pointer back to where the shooting occurred to meet the police. Several days later, Pointer saw [Petitioner] jumping some of the neighbors' fences trying to get back to [his] apartment building. Pointer called the police and [Petitioner] was arrested.
Pointer testified that prior to the shooting, he and [Petitioner] were acquaintances. Pointer believed the shooting may have been motivated by the fact that, at some time prior to the shooting, Pointer had chased [Petitioner] down the street after [Petitioner] had punched Pointer in the mouth.
Nancy Stewart (Stewart), an employee for the city, testified that she had just posted a flyer in the deli's window when she saw [Petitioner] start shooting at two men....
The jury found [Petitioner] guilty on both counts. The trial court sentenced [Petitioner] to two concurrent ...