United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
ABBIE CRITES-LEONI, Magistrate Judge.
This matter is before the Court on the Amended Petition of Ronald Newlon for a Writ of Habeas Corpus under 28 U.S.C. § 2254. [Doc. 11] Petitioner is presently incarcerated at the Potosi Correctional Center in Mineral Point, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri. (Respt's Ex. E at 175-76.)
Background and Procedural History
On March 4, 2004, Petitioner was charged with statutory sodomy in the first degree for having deviate sexual intercourse with K.M., who was five years old, between March 7, 2003 and June 17, 2003 (Count I); victim tampering for convincing K.M. to not report the statutory sodomy (Count II); and statutory sodomy in the first degree for having deviate sexual intercourse with F.H., Petitioner's six-year-old nephew, between January 1, 2003 and March 6, 2003 (Count III). (Respt's Ex. E at 16-17.) The State also alleged that Petitioner had a prior conviction from 1992 for rape and sodomy. Id. at 17.
At trial, the State called nine witnesses to testify, including the two victims. K.M. testified that Petitioner put his finger in her anus on one occasion during a period in which she, her mother, and her brother were living with Petitioner at his apartment. (Respt's Ex. C at 292-93.) K.M.'s mother testified that K.M. told her that Petitioner had touched her, and that Petitioner told K.M., that he would kill her brother if she told anyone. Id. at 272-73. Detective Janet McKern testified that she interviewed K.M. and that K.M. told her that Petitioner inserted his finger in her anus. Id. at 299.
F.H. denied that Petitioner had touched him. Id. at 208-09. F.H.'s mother testified that F.H. denied that Petitioner touched him. Id. at 216. F.H.'s teacher and an investigator for the Children's Division, however, testified that F.H. previously admitted that Petitioner touched his genitals. Id. at 244, 224-25. The teacher also testified that F.H.'s grandmother admitted to telling F.H. that if he repeated his allegations against Petitioner, the family would send him to an orphanage. Id. at 249.
A police officer testified that Petitioner admitted that he was sexually attracted to children and had urges to have sex with children. Id. at 336.
On May 26, 2006, Petitioner was found guilty on all counts. (Respt's Ex. C at 379.) Petitioner was sentenced to fifty years imprisonment on Count I; seven years imprisonment on Count II; and thirty years imprisonment on Count III. (Respt's Ex. E at 175-76.) The trial court ordered Petitioner's sentences to run consecutively with each other, for a total of eighty-seven years imprisonment. Id. at 176.
Petitioner raised four points in his direct appeal of his convictions. (Respt's Ex. F.) In his first point, Petitioner argued that the trial court erred and abused its discretion in overruling his motion to sever the count involving F.H. from the counts involving K.M. In his second point, Petitioner argued that the trial court erred in denying his motion for acquittal on Count III, because the evidence was insufficient to prove he had deviate sexual intercourse with F.H. In his third point, Petitioner argued that the trial court erred and abused its discretion in sustaining the State's motion to prohibit Petitioner from eliciting evidence of a prior allegation of sex abuse involving K.M. and a neighbor during the cross examination of Nichol Warnak. In his final point on appeal, Petitioner argued that the trial court erred and abused its discretion in admitting the hearsay statements of both victims under Section 491.075 RSMo. The Missouri Court of Appeals for the Eastern District affirmed Petitioner's convictions on June 29, 2007. (Respt's Ex. I.)
On September 7, 2007, Petitioner filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Rule 29.15. (Respt's Ex. J at 3-29.) On February 27, 2008, after appointment of counsel, Petitioner filed an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence and Request for Evidentiary Hearing. Id. at 33-46. Petitioner raised the following ineffective assistance of counsel claims: (1) trial counsel failed to strike a jury member whose son had been sexually molested as a child; and (2) trial counsel failed to object to the Prosecutor's improper comments during closing argument. Id. at 35-42. On August 26, 2009, the motion court denied Petitioner's motion and Petitioner's request for an evidentiary hearing. Id. at 47-50.
Petitioner raised the same ineffective assistance of counsel claims on appeal from the denial of post-conviction relief. (Respt's Ex. K at 13-14.) On September 28, 2010, the Missouri Court of Appeals affirmed the denial of post-conviction relief in a brief Order that was supplemented by a Memorandum sent only to the parties setting forth the reasons for its decision. (Respt's Ex. M.)
On March 1, 2011, Petitioner, pro se, filed his Amended Petition for a Writ of Habeas Corpus citing two nearly identical grounds for relief. [Doc. 11] In both grounds for relief, Petitioner argues that he received ineffective assistance of counsel, because counsel failed to call Cheryl Schmitt, Dana Patterson, Valmaresa Haynes, "Danielle, " Nichol Patterson, Vonika Stanford, Drerisha Harris, F.H., Destiny Schmitt, and Deseray Schmitt to testify that the incident involving K.M. could not have happened while others were staying at the apartment. On August 30, 2011, Respondent filed a Response to Order to Show Cause, in which he argues that Petitioner's claims are procedurally defaulted, and fail on their merits. [Doc. 12] Petitioner has filed a Traverse, as well as various letters and other supplemental materials, in which he provides further argument in support of his Amended Petition. [Docs. 13, 14, 15, 17, 21, 22, 28]
A. Standard of ...