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Myers v. Norman

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

September 22, 2014

GEORGE EDWARD MYERS, Petitioner,
v.
JEFF NORMAN, Respondent.

MEMORANDUM OPINION

RODNEY W. SIPPEL, District Judge.

Petitioner George Edward Myers seeks a writ of habeas corpus. In his Petition Myers alleges five grounds for relief. I referred this matter to United States Magistrate Judge David D. Noce for a report and recommendation on all dispositive matters pursuant to 28 U.S.C. ยง 636(b). On April 14, 2014, Judge Noce filed his recommendation that Myers' habeas petition should be denied.

Myers timely filed objections to the Report and Recommendation. I have conducted a de novo review of all matters relevant to the petition. I find that Judge Noce correctly analyzed Myers' grounds for relief and correctly applied the law in reaching his recommendation. After careful consideration, I will adopt and sustain the thorough reasoning of Magistrate Judge Noce and will deny Myers' habeas petition.

Background

Myers was found guilty by a jury of murder in the second degree and of distribution or delivery of a controlled substance for providing and injecting Megan Williams with oxycodone, causing her death. He was sentenced to life imprisonment for the murder conviction and a concurrent sentence of life imprisonment without parole for distribution or delivery of a controlled substance as a prior and persistent offender.

In his present habeas petition Myers asserts five grounds for relief. Those grounds are:

1) The trial court violated petitioner's right to due process and confrontation by admitting the testimony of Joseph Gercone that Megan Williams told him that petitioner's injection caused her pain and that petitioner had difficulty locating a vein.
2) The trial court violated petitioner's right to due process by sentencing him as a persistent drug offender when petitioner had only one prior felony related to a controlled substance.
3) The post-conviction relief court violated petitioner's right to due process by denying his claim of actual innocence without an evidentiary hearing that would have shown that Joe Gercone told Thomas Tobias and Leslie Daniely Moore that Joe Gercone injected himself and Megan Williams in the early morning.
4) His trial counsel rendered constitutionally ineffective assistance by:
a. Failing to object to the verdict director for felony murder because it omitted the requirement that the death occur "in the perpetration or attempted perpetration" of a felony.
b. Failing to call Thomas Tobias as a witness at trial who would have testified that Joseph Gercone injected Megan Williams in the early morning.
c. "Opening the door" and allowing the admission of the testimony of Joseph Gercone that Megan Williams told him that petitioner's injection caused her pain and that petitioner had difficulty locating a vein.
d. Failing to object to the trial court's consideration of petitioner's refusal to admit to the crime and ...

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