United States District Court, E.D. Missouri, Eastern Division
PERCY D. BELL, Petitioner,
JAY CASSADY,  Respondent.
MEMORANDUM AND ORDER
THOMAS C. MUMMERT, III, Magistrate Judge.
This matter is before the Court for review and final disposition of a petition for writ of habeas corpus filed by Percy D. Bell ("Petitioner") pursuant to 28 U.S.C. § 2254 to challenge a 2008 judgment following a jury trial. Respondent filed a response [Doc. 8] to the petition, including materials from the underlying state court proceedings [Docs. 9 and 14-1].
In his petition, Petitioner presents one ineffective assistance of counsel claim that encompasses four challenges to his trial attorney's representation. For convenience in discussing the claims, the Court will address each of those challenges as separate grounds for federal habeas relief, numbered one to four.
After careful consideration, the Court will deny the petition upon concluding that Petitioner is not entitled to relief because ground three is procedurally defaulted and Petitioner failed to demonstrate either cause and prejudice or actual innocence so as to allow this Court to consider the merits of that procedurally defaulted claim; and because the other three grounds lack merit.
Petitioner was charged, as a prior offender and as a prior and persistent sexual offender, with six counts of first-degree statutory sodomy, in violation of Mo. Rev. Stat. § 566.062. (Substitute Information in lieu of Indictment ("Substitute Information"), Legal File, Resp't Ex. A, at 152-54 [Doc. 9].) The charges were based on allegations that, between August 1, 2006 and April 25, 2007, Petitioner had deviate sexual intercourse with N.H. ("Victim"), a boy who was less than fourteen years old at the time. Id . Specifically, the substitute information alleged that Petitioner placed his mouth on N.H.'s penis (Count I), put his penis in N.H.'s mouth (Count II), "placed [his] mouth on [N.H.'s] penis after which [Petitioner] tried to insert his penis in [N.H.'s] anus" (Count III), put "his penis in [N.H.]'s mouth after which [Petitioner] tried to insert his penis in [N.H.'s] anus" (Count IV), placed his "mouth on [N.H.'s] penis shortly before this occurred [N.H.] was playing a video game" (Count V); and put "his penis in [N.H.]'s mouth, shortly before this occurred [N.H.] was playing a video game (Count VI). Id. at 152-53. Additionally, the Substitute Information expressly alleged that, as a prior and persistent sexual offender, and due to Petitioner's March 4, 1988 guilty plea to a felony attempted rape charge, Petitioner was subject to "an extended term of imprisonment for life without eligibility for probation or parole, under Sections 558.018 and 557.036" of Missouri Revised Statutes. Id. at 154.
Prior to trial Petitioner's counsel deposed Victim and his mother; filed a request for discovery, an unsuccessful motion for a bill of particulars, and two motions in limine; and contested the admissibility of Victim's statements to a social worker at St. Louis Children's Hospital, Margie Batek, as well as the admissibility of statements Petitioner might have made to Victim regarding his reportedly similar conduct with a minor boy whom Victim knew. (See Legal File, Resp't Ex. A, at 19, 23-25, 26, 37-138, 147-51 [Doc. 9]; Trial Tr., Resp't Ex. I at 153-74 [Doc. 14-1].) Before trial began, the Court conducted a hearing to determine the admissibility of Victim's statements to Batek under Mo. Rev. Stat. § 491.075, and found the statements admissible. (See Trial Tr., Resp't Ex. I at 153-74 [Doc. 14-1].) The trial court also ruled that Victim could "state what was said in the lead up to the act, " including what Petitioner said to Victim, but "no testimony regarding [Petitioner]'s other criminal record [was] allowed and [was] excluded." (Id. at 173-74.)
Victim, Victim's mother, a police officer who saw but did not interview Victim, and Batek, who had interviewed Victim in April 2007, testified during the 2008 jury trial. (See Trial Tr., Resp't Ex. I, at 186-263 [Doc. 14-1].) Petitioner did not testify at trial, advising the trial court in response to its questions out of the presence of the jury that he understood it was his decision to make and that he decided not to testify after thinking about it and after having discussed it with his counsel and those "whose opinion [he] value[d]." (Id. at 268-69, 272 [Doc. 14-1 at 70, 71].)
Outside the presence of the jury and prior to the end of trial, the trial court found that Petitioner was a prior offender under Mo. Rev. Stat. § 558.016, as well as a prior and persistent sexual offender under Mo. Rev. Stat. §§ 558.018 and 557.036, based on Petitioner's March 1, 1988 guilty plea to a felony attempted rape charge. (Id. at 264-68.)
Petitioner's counsel unsuccessfully moved for judgment of acquittal at the close of the State's evidence and at the close of all the evidence. (Id. at 271-72.)
The jury found Petitioner guilty of the statutory sodomy offenses charged in Counts I through IV and Count VI; and not guilty of the statutory sodomy offense charged in Count V. (Verdicts, Legal File, Resp't Ex. A, at 184-89 [Doc. 9].) The trial court sentenced Petitioner to concurrent terms of life without probation or parole on each of the five counts. (Trial Tr., Resp't Ex. I, at 300-06 [Doc. 14-1].)
On direct appeal, Petitioner raised one point. He argued that his Fifth and Fourteenth Amendment rights to due process were violated by the trial court overruling Petitioner's objection to the prosecutor asking Batek how Victim responded to her question whether "anything like [what happened to Victim] had ever happened to another child, " and Batek testifying that Victim told her that Petitioner had said he had "engaged in the same activity" with" J. M. (Pet'r Br., Resp't Ex. B, at 10 [Doc. 9].)
The Missouri Court of Appeals for the Eastern District affirmed the conviction and sentence in a summary order, supplemented by a memorandum sent only to the parties setting forth the reasons for the decision. (Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 8, 2009, Resp't Ex. D.) In summary, the state appellate court did not address the merits of two of Petitioner's contentions in support of his point because they "were not preserved for appeal and have been waived"; and concluded Petitioner's other two arguments, that the statement lacked sufficient indicia of reliability to be admissible under Mo. Rev. Stat. § 491.075.1 and that the statement constituted "inadmissible evidence of prior uncharged misconduct, " lacked merit based on the record. (Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Sept. 8, 2009, Resp't Ex. D, at 3-6.)
The state appellate court entered its mandate on October 1, 2009, and Petitioner did not seek further review of the trial court's judgment. (See docket sheet for State v. Bell, No. ED92252 (Mo.Ct.App. filed Nov. 25, 2008) (docket sheet available at https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited Sept. 12, 2014).)
Petitioner then timely filed a pro se motion for post-conviction relief. (Pet'r Mot., filed Dec. 1, 2009, Legal File, Resp't Ex. E, at 3-10.) In an amended post-conviction motion, which included a request for an evidentiary hearing. Petitioner set forth three claims for relief. First, Petitioner argued that his Fifth, Sixth, and Fourteenth Amendment rights to due process, to present a defense, to a fair trial, and to the effective assistance of counsel were violated by his trial attorney's failure to subpoena and call M.C. and J.M as witnesses. (Pet'r Am. Mot., Legal File, Resp't Ex. E, at 16-17 [Doc. 9].) Second, Petitioner urged his Fifth, Sixth, and Fourteenth Amendment rights to due process, a fair trial, and the effective assistance of counsel were violated by his trial attorney's failure to communicate with Petitioner, resulting in a "complete communication breakdown at trial." (Id. at 17-18.) For his third and final claim, Petitioner contended that his Fifth, Sixth, and Fourteenth Amendment rights to testify, to present a complete defense, to due process, to a fair trial, and to the effective assistance of counsel were violated by his trial attorney's failure to call Petitioner as a witness at trial. (Id. at 19.) Without holding an evidentiary hearing, the motion court denied relief. (Mot. Court's Findings of Fact, Conclusions of Law, and J., dated Aug. 31, 2010, Legal File, Resp't Ex. E, at 43-49.)
Petitioner raised the same three arguments that he had pursued in his amended postconviction motion as the three points in his timely post-conviction appeal. (Pet'r Br., Resp't Ex. F, at 10-14.) Citing Strickland v. Washington , 466 U.S. 668 (1984), among other cases, the Missouri Court of Appeals for the Eastern District affirmed the motion court's decision in a summary order, supplemented by a memorandum sent only to the parties setting forth the reasons for its decision. (Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b), dated June 14, 2011, Resp't Ex. H.) The state appellate court found the relevant facts as follows:
[Petitioner] met Victim through M.C., a fellow classmate of Victim. Victim would sometimes go to [Petitioner's] house to play video games with M.C., and another child, J.M. Victim and the other two children would sometimes sleep at [Petitioner's] house.
The first time Victim spent the night at [Petitioner's] house, Victim, M.C. and J.M. smoked marijuana. After smoking the marijuana, Victim went to sleep in [Petitioner's] bedroom. [Petitioner] came into the bedroom and removed Victim's clothing. [Petitioner] then climbed into bed with Victim, and made Victim, "put [his] mouth on [Petitioner's] penis." Afterward, [Petitioner] "put his mouth on [Victim's] penis."
On a second occasion, Victim played video games at [Petitioner's] house with M.C. and J.M., and the three children spent the night. Victim slept on a couch in the living room. He testified that M.C. slept on a different couch next to Victim and J.M. slept in the bedroom. Victim awoke to find [Petitioner] sitting next to him on the couch. [Petitioner] again performed oral sex on Victim. Afterward, Victim performed oral sex on [Petitioner].
The last instance occurred after Victim went to [Petitioner's] house to receive a haircut. After the haircut, Victim performed oral sex on [Petitioner], and [Petitioner] also performed oral sex on Victim. M.C. and J.M. were sleeping while these sexual acts took place.
At the close of the State's evidence, the trial court discussed with [Petitioner] his right to testify at trial:
THE COURT: Okay. And here you know your experience, you have a prior conviction, as a criminal defendant you enjoy certain rights under our State and Federal Constitution and one of the preeminent rights is the right either to testify or not testify. And you have to make a decision after reflecting in your own mind, talking with your attorneys, you have an attorney on your right and your left there, talking with any family member or the like, there are pluses and minuses going both ways, and if you decide to testify I will honor that, you will be allowed to testify, but you will be confronted with your prior conviction and the jury which is unaware of that now, would become aware of that prior ...