United States District Court, W.D. Missouri, Southern Division
OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
DOUGLAS HARPOOL, District Judge.
Petitioner, a convicted state prisoner currently confined in the South Central Correctional Center in Licking, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 convictions and sentences for second-degree murder and armed criminal action, which were entered in the Circuit Court of Greene County, Missouri. Petitioner raises one ground of ineffective assistance of trial counsel - that counsel incorrectly advised him to reject the state's plea offer of a 25-year sentence for voluntary manslaughter and that petitioner consequently received a life sentence and a concurrent 50-year sentence due to counsel's erroneous advice. Petitioner's conviction was affirmed on direct appeal ( State v. Stidman, 259 S.W.3d 96 (Mo. App. 2008)), and the denial of his motion for postconviction relief filed pursuant to Mo. Sup.Ct. R. 29.15 was upheld on appeal thereof ( Stidman v. State, No. SD32518, (Mo. App. 2013)).
In affirming the judgment of conviction and sentence of the Circuit Court of Greene County for second-degree murder and armed criminal action, the Missouri Court of Appeals, Southern District, set forth the following facts regarding petitioner's criminal trial:
[Petitioner] was charged by information with murder in the first degree and armed criminal action for killing Robert Harris (Harris) by shooting him seven times in the head. See §§ 565.021, 571.015[, RSMo 2000.] Following a jury trial, [petitioner] was convicted of the lesser-included offense of murder in the second degree and armed criminal action. The court imposed concurrent sentences of life in prison and 50 years in prison, respectively, for committing these offenses.
[Petitioner] and Jennifer Banks (Banks) were married in March 1998. In January 2004, the couple had three young children who were approximately five years, three years, and one month old. The couple began having marital problems. In the spring of 2004, Banks met Harris at a club and began secretly dating him.
On May 1, 2004, Banks left [petitioner] and began living with Harris. Earlier that day, Banks and [petitioner] had argued, and [petitioner] pushed Banks off some steps from the laundry room into the garage. As [petitioner] approached Banks, she bolted from the garage into her vehicle and drove away.
Harris and Banks lived together until July 13, 2004, when she moved back to [petitioner's] home in order to be with her children. After three days, however, Banks changed her mind and decided to leave again. On July 16, 2004, Banks did not come home after work. She called [petitioner] and said there was no way she could be with him. Banks also said that she was not planning to pursue a relationship with Harris and that she was going to find an apartment and take the children. [Petitioner] told Banks that she was playing games with him, called her names and was very angry and upset.
Banks had called [petitioner] from a pay phone near Harris' apartment. Later, she and Harris were watching a movie in the living room when someone began pounding on the front door. Banks opened the door and saw [petitioner] standing in the doorway, holding a 9mm pistol. Banks recognized the pistol as one that [petitioner] had owned for the past five or six years. Harris was sitting unarmed in a chair. [Petitioner] immediately lifted the gun, cocked it, and rushed at Harris. [Petitioner] jumped on top of Harris and tried to put the gun to his head. The two men struggled, and a shot went off that missed Harris and entered the bedroom door. Both men fell to the floor and continued struggling. A second shot was fired as [petitioner] was on top of Harris. [Petitioner] then stood up and fired two shots into Harris' head. When the gun jammed, [petitioner] cleared the chamber and fired several more shots into Harris' head.
Banks ran into the kitchen. [Petitioner] followed, pointing the gun at her. Banks grabbed for the gun, but [petitioner] yanked it away and said it was not loaded. [Petitioner] grabbed Banks with the other hand and began choking her and swearing at her. She eventually fell to the floor. [Petitioner] stood over her and said, "Look at what you f made me do. Look at what you f made me do. I just killed him and I'm going to jail for the rest of my life."
[At trial, petitioner] testified that as he approached the apartment door, he heard moaning inside which he believed was the sound of Banks having sex. [Petitioner] pounded on the door until Banks answered, wearing only a "man's T-shirt." Harris came out of the bedroom, and the two men rushed towards each other. Harris was unarmed. The two men began wrestling and fell to the ground. Shots were fired from [petitioner's] gun while they were on the floor. [Petitioner] admitted that: (1) a live round would have to have been chambered before his pistol would fire; and (2) the trigger on the semiautomatic pistol would have to have been pulled each time a shot was fired. According to [petitioner], no shots were fired after he stood up. He did not realize that he was holding the gun until Banks asked for it and grabbed his hand. [Petitioner] kept the gun, walked out of the apartment and got in the car. As he drove away, he threw the gun out of the car window.
During the instruction conference, defense counsel requested that the court submit the lesser included offenses of voluntary and involuntary manslaughter. Counsel tendered appropriate instructions for that purpose. All of these instructions were refused after the trial court ruled that there was insufficient evidence to support either ...