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Carmical v. Norman

United States District Court, E.D. Missouri, Eastern Division

August 15, 2014

JEFF NORMAN, Respondent.


DAVID D. NOCE, Magistrate Judge.

This action is before the court upon the petition of Missouri state prisoner Henry Carmical for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 7.) For the reasons set forth below, the petition for a writ of habeas corpus is denied.


On March 3, 2009, following a jury trial, the Circuit Court of St. Louis County found petitioner guilty of murder in the second degree (Count I), burglary in the second degree (Count II), and stealing property worth less than $500 (Count III). (Doc. 15, Ex. 1 at 147-49.) On April 3, 2009, the trial court denied petitioner's motion for a new trial and sentenced petitioner to a term of life imprisonment on Count I, seven years imprisonment on Count II, and one year imprisonment on Count III. (Id. at 166-68.) The court ordered petitioner's sentences to run consecutively, totaling life plus eight years in the custody of the Missouri Department of Corrections. (Id.) On April 13, 2010, the Missouri Court of Appeals affirmed the judgment on direct appeal. (Id., Ex. 4); State v. Carmical , 310 S.W.3d 731 (Mo.Ct.App. 2010).

On September 20, 2010, petitioner filed a pro se motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. (Doc. 15, Ex. 6 at 3-26.) On January 31, 2011, with the assistance of appointed counsel, petitioner filed an amended motion for post-conviction relief and request for an evidentiary hearing. (Id. at 34-60.) On March 11, 2011, the motion court denied petitioner's request for an evidentiary hearing. (Id. at 62.) Three days later, on March 14, 2011, the motion court denied petitioner's request for post-conviction relief. (Id. at 63-66). On April 24, 2012, the Missouri Court of Appeals affirmed the denial of petitioner's post-conviction relief. (Id., Ex. 9); State v. Carmical , 365 S.W.3d 618 (Mo.Ct.App. 2012.)

On May 15, 2013, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.

In denying petitioner's direct appeal, the Missouri Court of Appeals described the facts, viewed in the light most favorable to the verdict, as follows:

On February 19, 2007, Tim McDevitt (McDevitt), an evening maintenance worker and resident of the Economy Inn and Suites in Bridgeton, was walking to the motel's office to clock in for work when he noticed that the curtains to Rooms 330 and 340 were closed. The motel policy called for the housekeeping staff to open the curtains of unoccupied rooms. Room 330 was not rented out to a guest that evening. McDevitt reported the closed curtains to the motel manager, Abuhakim Subhanee (Manager), and then continued to do maintenance work in various rooms.
About an hour and a half later, while McDevitt was outside changing light bulbs in front of the office, he saw [petitioner], who sometimes did odd jobs around the motel and was dating a housekeeper. [Petitioner] previously had lived at the Economy Inn, but was not living there on February 19, 2007. [Petitioner] did not have permission to occupy any of the rooms. [Petitioner] walked into the office to heat something in the microwave. McDevitt then went to work on a different corner of the building and did not see [petitioner] leave the office.
Later in the evening, McDevitt was collecting trash when he encountered Marty Taveggia (Victim), the assistant manager and night desk clerk at the Economy Inn. Victim had replaced Manager behind the desk. Victim was going to check on the rooms that were listed as unoccupied but had closed curtains. McDevitt and Victim walked together for a short way before Victim went toward the rooms and McDevitt continued on to the dumpster.
When McDevitt was almost finished taking out the trash, he realized that Victim had not returned. McDevitt looked down the sidewalk but did not see Victim. He went to the area where Victim had been headed and heard a loud banging noise coming from Room 330. McDevitt ran to the office and told Manager that Victim was on the grounds and there might be a problem. McDevitt returned to Room 330 and waited for Manager. Manager arrived at the room, but then returned to the office to get the key to Room 330. While waiting, McDevitt saw [petitioner] come out of Room 330. [Petitioner] was carrying a black trash bag. [Petitioner] was sweating even though it was cold outside. [Petitioner] told McDevitt that Victim had found him in the room and told him to get out or the police would be called. [Petitioner] walked around the corner of the building and disappeared from view.
Thinking [petitioner's] story sounded logical at the time, McDevitt resumed collecting trash. As McDevitt was doing so, [petitioner] reappeared without the trash bag and asked whether McDevitt had seen Victim. McDevitt answered no, then [petitioner] left. Manager and his wife then drove up in Manager's car. Because no one had seen Victim, Manager and McDevitt decided to call the police.
The Bridgeton 911 operator received three calls concerning Victim on February 19, 2007. In addition to the call from Manager and McDevitt, the operator received two calls from [petitioner's] cell phone. [Petitioner] identified himself in the call as Dwayne Smith and said he was afraid because he had witnessed a fight between two white males. In a second call about seven minutes after the first, [petitioner] said that he had moved a man to Room 338 and that police should check that room.
When the Bridgeton police arrived at the motel, they found Manager, his wife, and McDevitt sitting in a car parked near Room 330. The officers took the key, entered Room 330, and saw what appeared to be blood on the carpet. The police saw a television on the bathroom counter, a blanket attached to and hung from the wall to shield the television's light, and a drawer missing from the dresser. The drawer was found behind the door and it had a red stain on it. A liquid red stain was found on the carpet next to the dresser drawer. Another television sat on the dresser. A pillowcase and sheet found in the room appeared to have bloodstains on them. A document from the Missouri Department of Social Services with [petitioner's] name on it was found on the floor. The bed appeared to have been slept in.
The officers found what appeared to be a trail of blood on the sidewalk outside of Room 330, leading to Room 338. The curtains to Room 338 were opened, and through the window, the officers saw Victim lying on the floor. The officers kicked open the door, checked Victim for a pulse and, not finding one, did a sweep of the room checking for possible suspects. Victim had been beaten in the face and had a broken nose, a split lip, and numerous bruises. The medical examiner testified that his injuries were consistent with Victim being struck with a stained dresser drawer that was found on the floor in Room 330. Victim also had injuries consistent with manual strangulation. The medical examiner testified that the cause of Victim's death was either blunt head trauma or manual strangulation, which appeared to happen concurrently.
Crime scene detectives found on the roof above Room 330 a coat and a white sheet, which appeared to have bloodstains on it. In a trash can outside of Room 332, officers found a tank top, boxer shorts, and a pair of socks with a reddish-brown stain on them. In Room 338, a backpack and a black trash bag, both containing clothing and personal items, were found behind the bed. The room did not have a television. Red stains were found on the doorjamb and on the wall past the bed.
When [petitioner] was identified as the person who probably made the 911 calls, one of the officers at the scene, Officer Jim Livingston, who had a good relationship with [petitioner], called him and arranged to pick him up for questioning. [Petitioner] was taken to the police station where Officer Livingston and his partner questioned [petitioner]. During a videotaped interview, [petitioner] explained that after Victim told him the vacate Room 330, he moved his belongings to Room 338 with intention of collecting them later. [Petitioner] said he had seen Victim and McDevitt arguing, and he saw McDevitt push Victim into Room 330. [Petitioner] said he later went to retrieve his cell phone from Room 330 and found Victim's body bruised and battered, but still alive, he thought. [Petitioner] said he moved Victim's body to Room 338 to protect him from further harm, and then called the police.
[Petitioner] gave a similar statement to two other detectives, and then suffered a seizure during a break in the questioning. [Petitioner] was taken to a hospital where his fingernail scrapings, hair samples and clothing were collected. His Atlanta Braves jacket had numerous stains on the front and back. An adapter with a frayed cord was found in the coat pocket and had reddish stains on it. [Petitioner's] blue jeans had reddish stains on the front right leg and a few spots on the lower right cuff and left leg. [Petitioner] had been wearing a woven leather belt that was broken at the tip, similar to the partial belt found in Room 330. A piece of similar belt was found in [petitioner's] jacket pocket. [Petitioner's] shirt appeared to have bloodstains on it as well.
[Petitioner] was released from the hospital about three hours after suffering the seizure. When he was being returned to the police station, [petitioner] said he wanted to speak with Detective Lance Harris, who had been conducting the interview just before the seizure. [Petitioner], crying, told Detective Harris that he was sorry and wanted to tell him what happened. [Petitioner] stated that he had been staying at the motel because he had no place to live. He said that Victim walked into Room 330 and told him that he would call the police if [Petitioner] did not leave. [Petitioner] said that he got mad and started punching Victim. After Victim fell backward, the next thing [petitioner] remembered was sitting on top of Victim, whose face was unrecognizable and he was gurgling blood. [Petitioner] said he knew he hurt Victim and was afraid of going to jail, so he dragged Victim's body to Room 338. He said he threw some socks in the trash can outside the room. While moving his things out of Room 330, [petitioner] encountered McDevitt. [Petitioner] wrote out a short statement admitting to punching Victim, but said that he did not intend to hurt him. He also agreed to return to the motel to participate in a video reenactment of the murder.
When Officer Livingston drove [petitioner] from the Bridgeton jail to the St. Louis County jail, [petitioner] apologized to him for lying and asked him to tell Detective Harris that he was sorry for lying to him, too.

(Doc. 15, Ex. 5 at 2-6.)


Petitioner alleges four grounds for relief in this habeas action:

(1) Petitioner's conviction was obtained through the use of an involuntary and coerced confession.
(2) Petitioner's Fifth Amendment right against self-incrimination was violated when the police officers did not electronically record his interview that resulted in his confession.
(3) Petitioner received ineffective assistance of trial counsel because counsel:
(a) advised petitioner not to testify,
(b) failed to have hair fiber ...

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