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Brutcher v. Cassady

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

September 26, 2014

JAY CASSADY, [1] Respondent,


ABBIE CRITES-LEONI, Magistrate Judge.

This matter is before the Court for review and final disposition of a Petition for Writ of Habeas Corpus filed by George A. Brutcher ("Petitioner") pursuant to 28 U.S.C. § 2254.[2] After reviewing the case, the Court has determined that Petitioner is not entitled to relief.


On June 26, 2004, at approximately 1:45 a.m., Zach Naeger, a police officer with the City of Festus, was on patrol around I-44 and Highway A. (Resp't Ex. E at 25-26.) As Officer Naeger drove past a silver car stopped at a stoplight, the car's horn sounded, catching his attention. Id. at 26. Naeger looked in his review mirror and saw someone in the passenger seat trying to get out of the car. Id . Then the car surged forward and ran the red light. Id . Naeger turned around, activated his emergency lights, and tried to make a traffic stop. Id. at 26-27. A chase ensued. Id . William McDaniel, a deputy sheriff with Jefferson County, observed the pursuit and joined it. Id. at 29-30. After the silver car left the City of Festus, Naeger terminated his pursuit. Id. at 27. Officer McDaniel continued the chase. Id. at 30. Petitioner was the driver of the silver car, and H.C., the victim, was the passenger. Id. at 37, 39.

During the pursuit, Petitioner was driving erratically and fighting with H.C. Id. at 33-34. The car eventually spun out of control and came to a stop in the road. Id. at 36. Petitioner exited the car and took a combative stance against a highway patrolman. Id . Petitioner failed to comply with the patrolman's orders, and McDaniel approached Petitioner from behind and tackled him. Id. at 36-37. H.C. exited the car, crying, screaming, and injured. Id. at 37. Her bottom lip was "busted, " her left eye was bruised, and her left cheek was swollen. Id. at 38.

Deputy Sheriff Richard Beattie arrived on the scene after Petitioner had been subdued and handcuffed. Id. at 43. Petitioner was still resisting arrest by trying to get up from the ground and move. Id . Beattie subdued Petitioner by spraying pepper spray on his face. Id. at 44. McDaniel and Beattie took Petitioner to Beattie's car for transport and put him in a "hobble restraint, " which is designed to keep the arrestee from moving his legs. Id. at 44-45.

During transport, Petitioner became combative by kicking his legs. Id. at 45. He kicked hard enough to break the hobble restraint. Id . Petitioner then began kicking the vehicle's dashboard. Id. at 46. Beattie exited the car and opened the passenger door, ordering Petitioner to stop kicking. Id. at 47-48. Petitioner continued kicking. Id . Beattie attempted to grab Petitioner's legs, but Petitioner overpowered Beattie and began kicking him in the face. Id. at 48-49. Petitioner kicked Beattie's face three or four times, which stunned him. Id. at 49-50. Another unit arrived and helped Beattie restrain Petitioner. Id. at 51. Beattie went to the hospital, but he did not suffer any serious injuries. Id.

One month later, on July 26, 2004, a $50, 000 bond was posted for Petitioner on the charges for domestic assault, resisting arrest, assault on a law enforcement officer, and property damage. (Resp't Ex. F at 218-19.) The conditions of the bond prohibited Petitioner from tampering with a witness or having any contact with H.C. Id. at 219-20.

On July 30, 2004, H.C. visited a family friend, Vaughn Kellerman, who resided at No. 88 Rex-Aire. (Resp't Ex. E at 92.) When H.C. left Kellerman's she discovered that someone had stolen her purse and spare key from her car, so she went back into Kellerman's home to call the police. Id. at 93-94. Deputy Fred Lewis responded to the call at around 11:00 p.m. Id. at 59. When he arrived, H.C. told him that her purse had been stolen from her car and that she believed Petitioner had stolen it. Id. at 60. While he was speaking with H.C., Lewis received an emergency call. Id . 60. Before leaving, Lewis gave H.C. an affidavit of cooperation and witness statement to complete, and told her he would return as soon as he finished with the emergency call. Id. at 60-61, 94.

H.C. started writing her statement inside Kellerman's home. Id. at 95. While she was sitting on the couch writing her statement, Petitioner kicked the door in and entered the trailer. Id. at 95. Petitioner was carrying a knife. Id. at 96. Petitioner asked H.C. what she was writing down, and he said something to the effect of "I will kill you, bitch, " as he lunged forward and stabbed her in the arm. Id . Kellerman grabbed Petitioner's hand and wrestled with him. Id . Petitioner was too strong, however, and he was able to stab H.C. in the chest and back before she escaped from the trailer. Id. at 96-97. Petitioner said to Kellerman, "I'll kill you, " and then he ran after H.C. Id. at 97.

H.C. ran across the street to the home of Mark Berger. Id. at 97, 137. The door was unlocked and she let herself in. Id. at 138. Berger was home with his fiance and his seven year old daughter. Id. at 138, 142. Berger had never seen H.C. before. Id. at 138. H.C. said, "Help, he's killing me. Help, " and kept screaming for help. Id . Petitioner then forced his way into the house by pushing and hitting at Berger. Id. at 139. Once Petitioner got in, he brandished the knife at Berger, threatening to kill him. Id. at 140. Petitioner also said, "I'm going to kill that bitch." Id . Petitioner then swung his knife at Berger twice, just missing his face and throat. Id. at 140-42. Berger struck Petitioner once and knocked him down. Id. at 142. Then Berger ran to the back of his trailer, grabbed his daughter, and exited through the rear door. Id. at 142-43. As Berger was leaving, he looked back and saw Petitioner stabbing H.C. in the neck and chest. Id. at 144. H.C. was screaming for help, and Petitioner was yelling, "I'm gonna kill you bitch, you did me wrong." Id. at 145. Berger, his fiance, and his daughter drove to the landlord's office to call for help. Id. at 146.

Kellerman saw H.C. exiting Berger's home covered in blood. Id. at 99. H.C. was weak, and Kellerman hid her about a block away between some trailers. Id. at 99-100.

At about 11:40 p.m. Deputy Lewis was dispatched back to Kellerman's home, because of a disturbance call. Id. at 61. He arrived on the scene shortly after Kellerman hid H.C. Id. at 100. Upon the officer's arrival, Berger told Lewis that a man was stabbing H.C. at his house. Id. at 61. Backup units arrived, including Lieutenant Marshak. Id. at 62. Lewis and Marshak entered Berger's house and found significant amounts of blood and other indications that a fight had occurred there. Id.

Lewis left Berger's house to look for H.C.; he found her about two blocks away. Id. at 63. Lewis observed several puncture wounds to H.C.'s face, hands, chest, back, and neck; she was bleeding profusely. Id. at 66.

An ambulance arrived shortly thereafter. Id. at 66-67. The paramedic, Brian Lalumandier, observed that H.C. had several puncture wounds to her face, neck, chest, back, and abdomen. Id. at 86-87. A wound on her chest and a wound on her back were "bubbling, " indicating that H.C.'s lungs were collapsing. Id. at 87-88. Lalumandier dressed H.C.'s wounds, started IV fluids, and gave her oxygen while transporting her to St. Anthony's Hospital. Id. at 87-89.

Dr. Edmond K. Ng was the trauma surgeon on call at St. Anthony's. Id. at 117-19. Dr. Ng examined H.C. upon her arrival at the hospital and determined that H.C. had suffered seventeen separate stab wounds. Id. at 119. He inserted two thoracostomy tubes to decompress her pneumothorax injuries and did extensive laceration repairs. Id . Dr. Ng testified that H.C.'s pneumothorax injuries were life-threatening. Id . The injuries resulted in serious disfigurement to H.C.'s face. Id. at 127-29.

On the following day, July 31, 2004, officers received information that Petitioner could be found at 513 Jackson Way. Resp't Ex. F at 178, 209. When the officers arrived, they were let into the house and found Petitioner seated in the kitchen. Id. at 172, 181. There were blood smears near the front entrance of the house and near the kitchen table. Id. at 184-85. After receiving consent to search the premises, the officers seized a bloody T-shirt and a washcloth. Id. at 171-74, 182-83. Petitioner did not resist the officers, who arrested him and took him to the Jefferson County Jail. Id. at 176, 181, 209.

While being transported to the jail, Petitioner asked Corporal Steven Tilley how H.C. was doing. Id. at 185-86. Tilley responded that he did not know, and Petitioner said, "I'm going to get the death penalty for this one." Id. at 186. At that point, Tilley read Petitioner his Miranda rights. Id.

When Petitioner arrived at the Jail, his jeans appeared to have blood on them. Id. at 210. A deputy seized his jeans and gave him a prison uniform. Id. at 209-210. Petitioner said to the deputies at intake, "you want to take my clothes, you want to take them to the State, aren't you. Get that blood out of them. I wish they had more fucking blood on them." Id. at 199. He then chuckled and said, "I hope that bitch fucking dies. She got what she deserves." Id.

The DNA from the blood at the crime scene, the T-shirt, and Petitioner's jeans all matched H.C.'s. Id. at 288-294.

The state charged Petitioner by Fifth Amended Information with felonious restraint, resisting arrest, assault of a law enforcement officer in the first degree, two counts of assault in the first degree, two counts of burglary in the first degree, victim tampering, unlawful use of a weapon, and five counts of armed criminal action. (Resp't Ex. G at 46-52.) A jury found Petitioner guilty on all counts. (Resp't Ex. H at 161-75.) The trial court sentenced Petitioner to life imprisonment plus one hundred and nine years. Id. at 194-97.

On direct appeal, Petitioner argued that (1) the trial court abused its discretion when it denied his motion to strike venireperson Heather Denbow for cause because she was biased in favor of law enforcement; (2) the trial court abused its discretion when it denied his motion to sever, or in the alternative, to dismiss for improper joinder; (3) the trial court erred and abused its discretion when it overruled his objection and allowed Deputy Lewis to testify that H.C. told him she believed that Petitioner had stolen her purse; and (4) the trial court erred when it overruled his objection to the verdict director for witness tampering and in giving Instruction No. 20. (Resp't Ex. J at 17-21.) The Missouri Court of Appeals affirmed. (Resp't Ex. M at 2.)

Petitioner filed a timely motion for post-conviction relief under Rule 29.15. (Resp't Ex. O at 7-87.) Counsel filed a superseding amended motion. Id. at 90-200. In the amended motion, Petitioner alleged that trial counsel was ineffective for (1) failing to file a motion to dismiss Counts VII and IX of armed criminal action; (2) failing to object to the state's post-trial sentencing recommendation of life plus 116 years; (3) referring to Petitioner as a "monster"; (4) disclosing during voir dire that Petitioner had prior felony convictions; and (5) failing to file an application for change of judge in the Jefferson County Circuit Court. (Resp't Ex. P at 221-22.) The motion court denied Petitioner's claims after holding an evidentiary hearing. Id. at 222-29.

Petitioner raised the same five grounds on appeal. (Resp't Ex. Q at 20-27.) The Missouri Court of Appeals applied the familiar Strickland standard and affirmed, finding that counsel's trial strategy was reasonable and that Petitioner failed to demonstrate prejudice. (Resp't Ex. S at 1-5.)

Petitioner timely filed the instant Petition on September 12, 2011. Petitioner raises nine grounds for relief: (1) the trial court erred in denying a challenge for cause to venireperson Heather Denbow, because she had a disqualifying bias in favor of Jefferson County law enforcement; (2) the trial court abused its discretion in denying Petitioner's motion to sever Counts I, II, and III from the remaining eleven counts; (3) the trial court abused its discretion in overruling his objections and allowing Deputy Lewis to testify about H.C.'s statements, which were admitted for the truth of the statements; (4) the trial court erred in overruling his objection to the verdict director for Count X, because the evidence was insufficient to show that H.C. was the victim of first degree domestic assault; (5) trial counsel was ineffective for failing to file a motion to dismiss Counts VII and IX charging armed criminal action, because the state failed to present evidence that he used the knife to gain entry into the homes of Kellerman or Berger; (6) trial counsel was ineffective for failing to object to the state's post-trial sentencing recommendation of life plus 116 years on the ground the sentence was excessive; (7) trial counsel was ineffective for referring to Petitioner as a "monster" to the jury; (8) trial counsel was ineffective for disclosing during voir dire that Petitioner had prior felony convictions; and (9) trial counsel was ineffective for failing to file an application for change of judge in the Jefferson County Circuit Court.

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire , 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus... only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2254(a). Further, a federal court may not grant habeas relief unless the claim adjudicated on the merits in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Owens , 198 F.3d at 681 (quoting 28 U.S.C. §2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. §2254(e)(1). See also Gee v. Groose , 110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual findings presumed to be correct where fairly supported by the record).

"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor , 529 U.S. 362, 412-413 (2000). With regard to the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Bucklew v. Luebbers , 436 F.3d 1010, 1016 (8th Cir. 2006); Rousan v. Roper , 436 F.3d 51, 956 (8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams , 529 U.S. at 411.


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