United States District Court, E.D. Missouri, Eastern Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
NOELLE C. COLLINS, Magistrate Judge.
This matter is before the Court on Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). (Doc. 20). After reviewing the case, the court has determined that Petitioner is not entitled to relief. As a result, the court will recommend that the Petition be dismissed.
Petitioner was charged, in January 2002, with the Class A felony of robbery in the first degree, in that, on November 17, 2001, in the City of St. Louis, he forcibly stole U.S. currency owned by LaRonda Rhodes, and, in the course of doing so, displayed what appeared to be a deadly weapon (Count 1). He was also charged with armed criminal action with regard to the robbery (Count 2). Petitioner was charged with being a prior offender in that he previously had been convicted of the felony of unlawful use of a weapon - carrying a concealed weapon. (Resp. Ex. D at 10-11).
As stated by the Missouri appellate court, the testimony at Petitioner's trial was as follows:
On November 17, 2001, LaRonda Rhodes ("Rhodes") left the bank with approximately $500 in cash. She placed this money in the armrest compartment of her car and began to drive home. As she was driving, a man in a red Grand Am honked his horn and motioned for her to follow him. She followed him and eventually pulled into a parking lot. The man exited the car, walked over to Rhode's car, and introduced himself as "Lonnell." They agreed to exchange phone numbers and Rhodes opened the armrest compartment to get a pen and paper. While she was writing down her telephone number, Lonnell asked for "all of that." She asked him what he meant by that and he said "all of that, " as he was looking at the money sitting in the compartment. Lonnell then said, "Give me all of that" and opened his jacket, showing Rhodes the gun he had in his inner jacket pocket. Rhodes asked Lonnell, "Are you going to rob me?" and then threw $85 out of the car and drove away. Rhodes memorialized Lonnell's license plate number and then called the police. An officer responded to the scene and took down a description of the suspect, along with the license plate number.
Subsequently, Sergeant Edward Kuehner and Officer Samuel Jefferson were riding together in a police car when they saw Johnson walking and pulled up next to him. When Johnson saw the police, he began running. Sergeant Kuehner got out of the police car and chased Johnson on foot, while Officer Jefferson pursued Johnson in the police car. During the chase, Johnson discarded a revolver that was recovered by the police. Johnson was placed in a physical line up and Rhodes identified him as the man who robbed her. At trial, Rhodes also testified the gun that was recovered from Johnson was the same color, size and shape as the gun she saw in Johnson's jacket during the robbery.
(Resp. Ex. G at 2-3).
During cross-examination, Rhodes did not recall telling the 911 operator that $100 had been stolen, and, after an attempt to locate a tape player, defense counsel abandoned the line of inquiry. Rhodes had identified Petitioner in both a photograph line-up and the physical line-up. The State entered as exhibits one picture of each of these line-ups. Petitioner's cousin and two aunts testified at trial and provided alibis for him; they said Petitioner was with them all day on November 17, 2001. An aunt specifically said she braided Petitioner's hair, around 11:00 or 11:30 a.m., and that this took over an hour. Another aunt and Petitioner's cousin said they were with him at 6:00 p.m. for the news. Petitioner did not testify. (Resp. Ex. L at 3).
Petitioner was convicted, as charged, and sentenced to two concurrent terms of twenty years in prison. (Resp. Ex. D at 64-66, 104-106). He filed a direct appeal with the Missouri appellate court. (Resp. Ex. E). The Missouri appellate court found no error and affirmed the judgment against Petitioner. (Resp. Ex. G).
Petitioner then filed a pro se Rule 29.15 Motion. (Resp. Ex. I at 4-32). Counsel was appointed, and filed an Amended Motion. (Id. at 35-78). The motion court denied Petitioner post-conviction relief. (Id. at 85-103). Petitioner appealed the motion court's denial of relief to the Missouri appellate court. (Resp. Ex. J). By decision, dated October 19, 2010, the Missouri appellate court affirmed the motion court's judgment. (Resp. Ex. L).
Petitioner filed a timely § 2254 Petition, in which he makes the following claims for habeas relief:
(1) The trial court's denying Petitioner's motion for judgment of acquittal at the close of all the evidence was a denial of due process;
(2) The trial court's overruling Petitioner's objection to the admission of evidence of Petitioner's flight from the police and of his gun possession charge was a denial of due process;
(3) Petitioner was denied the right to due process and affective assistance of counsel in that trial counsel failed to adduce evidence that Petitioner had gold teeth at the time of the robbery;
(4) Petitioner was denied the right to due process and affective assistance of counsel because trial counsel failed to call Bront Davis as a witness; and
(5) Petitioner was denied the right to due process and affective assistance of counsel because trial counsel failed to introduce the 911 tape to impeach Rhodes.
EXHAUSTION, PROCEDURAL DEFAULT AND TIMELINESS ANALYSIS
To preserve issues for federal habeas review, a state prisoner must fairly present his or her claims to state courts during direct appeal or in post-conviction proceedings. Sweet v. Delo , 125 F.3d 1144, 1149 (8th Cir. 1997). Failure to raise a claim in a post-conviction appeal is an abandonment of a claim. Id. at 1150 (citing Reese v. Delo , 94 F.3d 1177, 1181 (8th Cir. 1996)). A state prisoner who fails "to follow applicable state procedural rules [for] raising the claims' (citation omitted)..., is procedurally barred from raising them in a federal habeas action, regardless of whether he has exhausted his state-court remedies." Id. at 1151 (citing Coleman v. Thompson , 501 U.S. 722, 731-32 (1991)). "[A] prisoner must fairly present' not only the facts, but also the substance of his federal habeas corpus claim." Abdullah v. Groose , 75 F.3d 408, 411 (8th Cir. 1996) (en banc) (citation omitted). "[F]airly present" means that state prisoners are "required to refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.'" Id. at 411-12. A state-law claim raised in state court which "is merely similar to the federal habeas claim is insufficient to satisfy the fairly presented requirement." Id. at 412.
The United States Supreme Court holds that a state prisoner can overcome procedural default if he or she can demonstrate cause and prejudice for the procedural default. Dretke v. Haley , 541 U.S. 386, 388-89 (2004). In any case, a "bare, conclusory assertion' that a petitioner is actually innocent is insufficient to excuse a procedural default." Sweet , 125 F.3d at 1152 n.9 (citing Weeks v. Bowersox , 119 F.3d 1342, 1352-55 (8th Cir. 1997)). To meet the requisite standard for a probability of innocence a habeas petitioner must show that "it is more likely than not that no reasonable juror would have convicted him in light of new evidence." Schlup, 513 U.S. at 327. (emphasis added). Evidence is "new" if it was "not available at trial and could not have been discoverable earlier through the exercise of due diligence." Amrine v. Bowersox , 238 F.3d 1023, 1029 (8th Cir. 2001).
Additionally, § 2244(d)(1) establishes a 1-year limitation period on petitions filed pursuant to § 2254.
Petitioner sufficiently raised the issues which he brings before this court to the Missouri appellate court. Additionally, his § 2254 Petitioner was filed within the limitations period. The court finds, therefore, that Petitioner's § 2254 is properly before this court.
"In the habeas setting, a federal court is bound by the AEDPA to exercise only limited and deferential review of underlying state court decisions." Lomholt v. Iowa , 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner unless the state court's adjudication of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or... decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. Finally, a state court decision involves an unreasonable determination of the facts in light of the evidence presented in the state court proceedings only if ...