United States District Court, W.D. Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
HOWARD F. SACHS, District Judge.
Petitioner, a convicted state prisoner currently confined at 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 2008 convictions and sentences for second degree felony murder, armed criminal action, and unlawful use of a firearm, which were entered in the Circuit Court of Boone County, Missouri.
Petitioner raises nine (9) grounds for relief: (1 and 2) his sentences violate the Double Jeopardy Clause's prohibition against cumulative sentences; (3) the trial court erred in admitting audio recordings of petitioner's jail telephone calls; (4) the trial court abused its discretion in overruling petitioner's objection to the state's closing argument; (5) the trial court plainly erred in admitting testimony and evidence of petitioner's silence regarding his involvement with the murder in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (6) the trial court erred in denying petitioner's motion for a continuance; (7) he received ineffective assistance of trial counsel because counsel failed to investigate evidence related to petitioner's mental health for the purpose of mitigation during the penalty phase; (8) he received ineffective assistance of trial counsel because counsel failed to request a change of judge based on the trial court's familiarity with petitioner's grandfather; and (9) petitioner received ineffective assistance of trial counsel because counsel failed to request a no-adverse-inference instruction during the penalty phase and because the post-conviction motion court erred in not granting petitioner a change of judge and in adopting the state's proposed findings and conclusions verbatim. Respondent contends that all grounds are without merit, and additionally contends that Ground 5 is procedurally barred and that part of Ground 9 is not cognizable for federal habeas relief.
In affirming petitioner's convictions and sentences, the Missouri Court of Appeals, Western District, set forth the following facts:
On April 12, 2007, [petitioner] and his cousin, Lorenzo Ladiner, bought an assault rifle for the purpose of robbing a local drug dealer, Larry McBride. They stored the rifle at Ladiner's home. Later that same day, Ladiner was pulled over and arrested on an outstanding warrant. The next day, when [petitioner] went to post bail for Ladiner, [petitioner] was arrested on an outstanding warrant. From April 13 to 18, 2007, [petitioner] remained in custody at the Boone County jail. During his confinement, [petitioner] made several phone calls to Ladiner in which they discussed their plans to assault and rob McBride.
While [petitioner] was in custody, Ladiner fired shots at McBride's vehicle. When [petitioner] was released, he went to Ladiner's house. McBride pulled up to the house with Tedarrian Robinson and Carlos Dudley. McBride accused Ladiner of shooting at his house which led to a heated verbal exchange. [Petitioner] attempted to open McBride's door, and McBride drove off.
[Petitioner] and Ladiner ran inside Ladiner's house. [Petitioner] grabbed the assault rifle and Ladiner grabbed the car keys to chase after McBride. When they caught up with McBride, [petitioner] leaned out the passenger window and fired at least five shots at McBride's vehicle. One bullet pierced the trunk of McBride's vehicle, traveled through the rear seat to the front passenger headrest, and struck Robinson in the neck. [Petitioner] and Ladiner returned to Ladiner's house and hid the rifle in the attic. McBride drove toward the hospital. Dudley called the police and reported that [petitioner] was the shooter. The police pulled McBride over and took Robinson to the hospital where he was pronounced dead.
Police responded to Ladiner's house and arrested both Ladiner and [petitioner]. [Petitioner] was charged with murder in the second degree, section 565.0211 (felony murder), unlawful use of a weapon by shooting a firearm from a motor vehicle, section 571.030.1(9), and armed criminal action, section 571.0152. Prior to trial, [petitioner] filed a motion for continuance and several motions to dismiss based on double jeopardy and statutory grounds, all of which were denied by the trial court. A jury found [petitioner] guilty on all three counts. [Petitioner] was sentenced to consecutive sentences of thirty years for felony murder, fifteen years for unlawful use of [a] weapon, and five years for armed criminal action.
1 All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
2 [Petitioner] was originally charged with an additional count of armed criminal action but the State later dropped the charge.
Respondent's Exhibit E, pp. 915-916.
Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254(e)(1). Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
In Ground 1, petitioner asserts that the trial court erred in sentencing petitioner for both second-degree murder and unlawful use of a weapon because the sentences violate Petitioner's protection against double jeopardy. Doc. No. 1, p. 5. Petitioner claims that his convictions for felony murder and "unlawful use of a weapon resulting in death" violate the ban against cumulative punishment. Doc. No. 1, p. 5. The Missouri Court of Appeals considered Ground 1 and ruled on the merits:
[Petitioner] argues that the trial court erred in sentencing him for both felony murder and unlawful use of a weapon because the cumulative sentences imposed for these convictions violated his right to be free from double jeopardy and violated section 556.041(3), as he was effectively convicted of a general crime and a specific crime based on the same conduct. The Double Jeopardy Clause of the Fifth Amendment prevents a defendant from being subjected to multiple punishments for the same offense . Peiffer v. State, 88 S.W.3d 439, 442 (Mo. banc 2002). "Double jeopardy analysis regarding multiple punishments is... limited to determining whether cumulative punishments were intended by the legislature." State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) (citing Missouri v. Hunter, 459 U.S. 359, 366-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). When the legislature specifically authorizes cumulative punishments under two statutes that proscribe the same conduct, cumulative punishments may be imposed against the defendant without violating the Double Jeopardy Clause. Id. Thus, in resolving the question of double jeopardy where cumulative punishment is claimed, legislative intent is paramount.
Section 556.041(3) prohibits the conviction of more than one offense if "[t]he offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct." (Emphasis added.) [Petitioner] was convicted of felony murder, the commission of any felony that results in death. The felony that served as the predicate offense for the felony murder conviction was the charge of unlawful use of a weapon by shooting a firearm from a motor vehicle, a violation of section 517.030.1(9). [Petitioner] contends that he was also convicted of the enhanced charge of unlawful use of a weapon by shooting a firearm from a motor vehicle resulting in death. This enhanced charge is described in section 571.030.7, which provides that a violation of section 571.030.1(9) is a class B felony "except that if the violation of subdivision (9) of subsection 1... results in injury or death to another person, it is a class A felony." [Petitioner] thus takes the position that he was convicted and sentenced twice for the same crime-the commission of a felony resulting in death-with one offense (felony murder) designating his conduct generally and one offense (enhanced violation of section 571.030.1(9)) designating his conduct specifically. As a result, [petitioner] contends his cumulative sentences for both convictions violate section 556.041(3). This point is without merit as [petitioner]'s claim is predicated on a false premise.
The State initially charged [petitioner] with a class A felony-the enhanced violation of section 571.030.1(9) pursuant to section 571.030.7. However, prior to trial, the State filed a second amended information in which the enhanced unlawful use of a weapon charge was reduced to the unenhanced class B felony of unlawful use of a weapon pursuant to section 571.030.1(9). The jury was instructed on the class B felony of unlawful use of a weapon which, though requiring proof of [petitioner]'s discharge of a firearm from a motor vehicle, did not require proof that the discharge resulted in the death of another. [Petitioner] was convicted of, and sentence was imposed on, the class B felony of unlawful use of a weapon. Despite [petitioner]'s contention to the contrary, [petitioner] was not convicted of, nor sentenced for, the enhanced version of section 571.030.1(9). He was, therefore, not convicted of two crimes possessing as a required element a "resulting death." Because [petitioner] has posited a factual scenario that did not occur, we need not address the substantive issue posed by [petitioner]'s point relied on.3
3[Petitioner] has not asked us to review whether his convictions for felony murder and for the unenhanced version of unlawful use of a weapon in violation of section 571.030.1(9) violate section 556.041(3), though we note that section 565.021.2 expresses the legislature's intention that "the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter."
Resp. Ex. E, pages 3-5.
"The Supreme Court repeatedly has held, in the double-jeopardy context, that whether a state legislature intends cumulative punishment for two offenses is an issue of state law, over which state courts have final authority." Dodge v. Robinson, 625 F.3d 1014, 1018 (8th Cir. 2010). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The Missouri legislature plainly states that it intends second-degree murder to be cumulatively punished for the underlying crime. The second-degree murder (felony murder) statute states, "the punishment for second degree murder shall be in addition to the punishment for commission of a related felony or attempted felony, other than murder or manslaughter. Section 565.021.2 RSMo (2000).
The decision of the Missouri Court of Appeals is reasonable and therefore is entitled to deference under § 2254(d). Petitioner has failed to show that the state courts' interpretation of the state legislature's intention in regard to cumulative punishment 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" or in "a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " see U.S.C. § 2254(d)(1) and (2); Mo. Rev. Stat. § 558.021(1)(3). As such, Ground 1 will be denied.
In Ground 2, petitioner claims that his sentences for unlawful use of a weapon and armed criminal action violate the Double Jeopardy Clause's prohibition against cumulative punishment. Doc. No. 1, p. 6. The Missouri Court of Appeals considered Ground 2 and ruled on the merits:
As previously noted, the Fifth Amendment's Double Jeopardy Clause protects a defendant from multiple punishments for the same offense. As this protection has been construed to turn on whether cumulative punishments were intended by the legislature, our analysis of this point must turn on construction of section 571.015.
The armed criminal action statute, section 571.015, provides:
1. Except as provided in subjection 4 of this section, any person who commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action...
4. The provisions of this section shall not apply to the felonies defined in sections 564.590, 564.610, 564.620, 564.630, and 564.640, RSMo.
[Petitioner] concedes that section 571.030.1(9) of which he was convicted for discharging a firearm at or from a motor vehicle is not expressly included in section 571.015.4 as an offense for which cumulative punishment is prohibited by the legislature. Nonetheless, [petitioner] suggests we should construe section 571.015.4 to include section 571.030.1(9) within its scope because section 571.030.1(9) was enacted nearly twenty years after the legislature enacted section 517.015 and the legislature has simply neglected to amend section 571.015.4 from time to time as necessary to keep pace with changes in the specific conduct now defined to constitute an unlawful use of weapons charge. We do not agree.
The confusion with respect to what is or is not meant by the legislature to be excluded from cumulative punishment along with a conviction for armed criminal action under section 571.015 is due in large measure to the fact the statutes enumerated in section 571.015.4 (which was enacted in 1977) were renumbered/transferred in 1978 and were then repealed in 1981. See State ex rel. Green v. Moore, 131 S.W.3d 803, 807-08 (Mo. banc 2004). Notwithstanding, Section 571.015.4 has never been amended to keep pace with the transfer, repeal, revision, and recodification of the enumerated offenses for which the legislature originally expressed an intent to prohibit cumulative punishment. The challenge, therefore, has been to determine legislative intent given the antiquated references in section 571.015.4. Universally, and notwithstanding the 1981 repeal of the statutes enumerated in section 517.015.4, our courts have opted to equate the substantive scope of revised and recodified statutes with the substantive scope of the statutes originally enumerated in section 571.015.4. This is consistent with the fact that in 1982, the year after the 1981 repeal of the transferred sections enumerated in section 517.015.4, the legislature nonetheless enacted section 571.017 which provides:
Nothing contained in any other provision of law, except as provided in subsection 4 of section 571.015, shall prevent imposition of sentences for both armed criminal action and the crime committed by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon.
(Emphasis added.) Thus, albeit with less than stellar attention to fine details, the legislature's enactment of section 571.017 in 1982 appears clearly to have restated its continuing intention to treat the offenses described in section 571.015.4 as the only felony offenses which cannot serve as a predicate for an armed criminal action charge and as the only felony offenses for which cumulative punishment along with an armed criminal action conviction is not permitted.
Our charge, therefore, is to assess whether section 571.030.1(9), of which [petitioner] was convicted, equates with any of the now repealed statutory offenses enumerated in section 571.015.4. We find it does not. Section 564.610 is the enumerated section [petitioner] suggests should be equated with section 571.030.1(9). Section 564.610 was transferred in 1978 to section 571.115. Under section 564.610 (then section 571.115) prior to its repeal in 1981, the statutes prohibited the following offenses: carrying a concealed weapon; exhibiting a weapon in an angry or threatening manner; possession of a weapon while intoxicated; possessing a firearm in a church, school, election precinct on election day, court or other public assemblage; and selling or delivering a weapon to a minor. Section 571.030 revised and recodified each of these offenses as follows: section 571.030.1(1) (carrying a concealed weapon); section 571.030.1(4) (exhibiting a weapon in an angry or threatening manner); section ...