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Bowers v. Russell

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

September 22, 2014

MARK BOWERS, Petitioner,
v.
TERRY RUSSELL, Respondent.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the petition of Missouri state prisoner Mark Bowers for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted by a jury of the class A felony of second-degree trafficking based on his possession of 6 grams or more of a substance containing cocaine base. He was sentenced as a prior and persistent offender and prior and persistent drug offender to 12 years' imprisonment without parole. For federal habeas relief he argues that his constitutional rights were violated in the following ways: (1) the trial court improperly found him to be a prior and persistent offender and a prior and persistent drug offender, because the State never filed an amended information charging him as such; (2) and defense counsel was ineffective for failing to present medical evidence to corroborate Petitioner's testimony about an impairment of his left hand which would have made it impossible for him to have clenched the bag of cocaine in his left hand, as a police officer testified he had done. For the reasons set forth below, habeas relief shall be denied.

BACKGROUND

Information and Trial

As the Missouri Court of Appeals observed in affirming the denial of state postconviction relief, "[t]he record in this case is in deplorable condition." Petitioner was originally charged on December 13, 2002, with two counts: the class A felony of trafficking in the second degree for possession of six grams or more of a substance containing cocaine base (Count I) in violation of Mo. Rev. Stat. §195.223, [1] and the misdemeanor offense of possession of marijuana (Count II). The original information also charged Petitioner, in the heading of the information in capital and bold letters, with being a "Prior and Persistent Drug Offender and Prior and Persistent Offender."

In the body of Count I, the original information states that Petitioner was "a prior drug offender" under Mo. Rev. Stat. §§ 195.275[2] and 195.295.3, [3] based on two prior guilty pleas to the felony of possession of cocaine (case nos. 881-2503 and 881-2553), both on April 20, 1989. In the body of Count II, the original information states that Petitioner was "a prior offender" and "a persistent offender" subject to an extended term of imprisonment under Mo. Rev. Stat. §§ 558.016[4] and 557.036, [5] based on the same two felony convictions listed in Count I. (Ex. J at 7-8.)

On October 6, 2004, an amended information was signed by the Assistant Circuit Attorney, but was not file-stamped or signed by the court clerk, and the state-court docket sheet does not reflect that this amended information was filed. The amended information contained allegations similar to the original information, but inserted the words, "without eligibility for probation and parole" in bold in the middle of the paragraph in Count I charging Petitioner with the trafficking offense. Id. at 2-3.[6]

The case went to trial on September 13, 2005. The state-court docket sheet contains the following entry dated September 14, 2005: "Upon Defendant's testimony and the court taking judicial notice of its own records, the Court finds that Defendant is a prior offender." (Resp. Ex. C at 8.) The jury found Petitioner guilty of possession of marijuana, but was unable to reach a verdict on the trafficking charge, and a new trial on that charge was held on August 15, 2007.

The evidence at the second trial established the following. On December 11, 2002, three police officers were on patrol in an unmarked car, when they saw a car fail to stop at a stop sign. The officers pulled the car over. There were two occupants - Petitioner, who was the driver, and a passenger named Gregory Brown. One of the officers, Harold Davie, testified that as the officers were getting out of their car, Petitioner exited his car with his hands raised and stated that anything the officers might find in the car did not belong to him. Davie testified that Petitioner's right hand was partially opened and his left hand was in "a fist." As Davie approached the passenger side of Petitioner's car, he observed Brown reaching under the seat as if to conceal something. When Brown stepped out of the car, Davie patted him down and discovered some marijuana on the inside pocket of Brown's jacket. Another officer searched the seat where Brown had been sitting and found a gun. At that point, Davie was standing at the back of Petitioner's car behind Petitioner and Brown, who were facing the trunk of the car with their hands on the trunk. Davie testified that he saw a plastic bag fall to the ground near Petitioner's left foot and believed it fell from Petitioner's left hand that had been "clenched" when Petitioner got out of the car. Another officer was called to recover the evidence and found a plastic baggie near Petitioner's feet. The baggie contained what was later determined to be over six grams of a substance containing cocaine base.

Petitioner testified that when the officers approached the car, he sat in the car with both hands on the steering wheel and did not get out of the car until after Brown had been searched and taken to the back of the car. Petitioner testified that he never had anything in his hands and did not throw anything to the ground. He testified that since 1998, he had a permanent disability in his left hand and could not hold things in that hand or close that hand into a fist. Petitioner admitted that the police found a small amount of marijuana in his wallet. He also admitted to three prior felony convictions: one in 2002 for possession of a controlled substance, and the two felony drug convictions that were noted in the original information. (Resp. Ex. A at 213-17). In closing argument, the prosecutor noted that the only evidence of Petitioner's physical impairment was Petitioner's own testimony and that no doctor's testimony or medical records were presented by the defense on the matter. The jury found Petitioner guilty.

At the sentencing hearing held on October 18, 2007, defense counsel asked for a sentence of ten years, noting that Petitioner's sentence would be without the possibility of probation or parole. The State asked for a sentence of 17 years without the possibility of probation or parole, as Petitioner was a prior and persistent offender. The Court sentenced Petitioner on the trafficking conviction to 12 years, stating that Petitioner was "a prior offender" and that the court had "already made findings as to his status and this is without the possibility of probation or parole." The court then sentenced Petitioner on the possession of marijuana conviction to time served. (Resp. Ex. B.)

On the written judgment form, the court checked boxes indicating that Petitioner was a prior and persistent offender and a prior and persistent drug offender, and that he had been found guilty of an offense for which probation or parole was not authorized. (Resp. Ex. C at 86-89.)

Direct Appeal

Petitioner raised one argument on direct appeal, namely, that during closing argument (in the August 27, 2007 trial), the prosecutor's statements that Petitioner did not present medical evidence to support his defense improperly shifted the burden of proof from the State to the ...


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