United States District Court, W.D. Missouri, Southern Division
KAREEM A. HURLEY, Petitioner,
JAY CASSADY, Respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
DOUGLAS HARPOOL, District Judge.
Petitioner, who is currently confined at Jefferson City Correctional Center in Jefferson City, Missouri, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2005 convictions and sentences for forcible rape, second degree assault, and armed criminal action in the Circuit Court of Greene County, Missouri. Petitioner=s convictions were affirmed on direct appeal. State v. Hurley , 208 S.W.3d 291 (Mo.Ct.App. 2006). Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup.Ct. R. 29.15, the denial of which was affirmed. (Respondent's Exhibit I).
Petitioner raises six grounds for relief. (1) that the trial court erred by allowing L.C. as a rebuttal witness; (2) that trial counsel was ineffective for failing to call Lemmie Bookman to contradict the testimony of M.C.; (3) that post-conviction appellate counsel was constitutionally ineffective for failing to brief on appeal that trial counsel unreasonably failed to call Claudette Jenks as a witness; (4) that petitioner was denied effective assistance of post-conviction appellate counsel because counsel unreasonably failed to call Thomas Litsey as a witness; (5) that petitioner was denied effective assistance of post-conviction appellate counsel because counsel unreasonably failed to establish that the S.A.F.E. exam did not show petitioner's semen; and (6) that petitioner was denied effective assistance of post-conviction appellate counsel because counsel unreasonably failed to file a motion in limine to establish the chain of custody of the victim's underpants. Respondent contends that petitioner=s Grounds 1 and 2 are without merit, and Grounds 3, 4, 5, and 6 are procedurally defaulted. The court notes that Ground 1 and 2 are without merit, and the rest are procedurally defaulted.
In affirming the petitioner's convictions and sentences of the state circuit court, the Missouri Court of Appeals, Southern District, set forth the following facts:
[Petitioner] met Marilyn Clark ("Victim") in August 2003. During the course of their relationship, they frequently smoked crack cocaine together and occasionally engaged in sexual intercourse. On December 29, 2003, Victim accepted [petitioner]'s invitation to have dinner at his house. Soon after she arrived, [petitioner] offered her some crack cocaine to smoke. Victim took one hit and before she exhaled, [petitioner] stabbed her in the head. This was the beginning of [petitioner]'s violent attack of Victim in which he stabbed her multiple times, punched her in the face and chest, threatened to kill her, forced her to perform oral sex on him, and eventually raped her. After the attack, [petitioner] forced Victim to stay the night with him.
The next morning, Victim begged [petitioner] to let her go. [Petitioner] made Victim put a bandana on to cover the stab wounds on her head. He also forced her to apply makeup to conceal the bruises on her face. When Victim was outside with [petitioner], her ex-husband drove by. She jumped in the van with her ex-husband and went home. Because [petitioner] threatened Victim's children, she made sure they were safely out of town before calling the police later that day.
At trial, [petitioner] did not testify on his own behalf but presented three witnesses. Two of those witnesses were [petitioner]'s roommates, Earl Brown and his girlfriend Debbie Lovelass. Mr. Brown stated that because his bedroom was next to the room where [petitioner] slept, he could hear when [petitioner] was moving around. Mr. Brown said that he did not hear any fighting or screaming the night of December 29, 2003, nor did he see any blood the next morning. Ms. Lovelass claimed she neither heard nor saw anything out of the ordinary during or after the alleged attack. On cross-examination, Ms. Lovelass admitted that she and Mr. Brown had been drinking that night and would not have heard anything after they fell asleep.
In rebuttal, over [petitioner]'s objection, the State called Victim's sixteen-year-old daughter, L.C. L.C. testified that when her mother returned home on the morning of December 30, 2003, she had on pale white makeup that she did not normally wear. L.C. described her mother's injuries and noted that Victim did not have them the day before. L.C. also noticed that her mother was acting unusually skittish, scared, and quiet.
(Respondent's Exhibit I, pages 1-3).
Before the state court findings may be set aside, a federal court must conclude that the state court=s findings of fact lack even fair support in the record. Marshall v. Lonberger , 459 U.S. 422');"> 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem , 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner=s burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254 (e)(1). Because the state court=s findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
GROUND 1 - TRIAL COURT ERROR ALLOWING WITNESS TESTIMONY
In Ground 1, petitioner contends that the trial court erred in allowing the state to call L.C. as a rebuttal witness. The Missouri Court of Appeals, Western District, denied Ground 1 as follows:
[Petitioner] alleges that the trial court's decision to allow L.C.'s testimony as rebuttal evidence was an abuse of the court's discretion. Appellant argues that "the prosecutor should have put on this evidence in his case-in-chief, and the testimony did not rebut the evidence presented by the defense." Appellant alleges that he was prejudiced because allowing L.C. to testify as a rebuttal witness "allowed the State to close ...