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Stevenson v. Wallace

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

October 30, 2014

GREGORY E. STEVENSON, Petitioner,
v.
IAN WALLACE, Respondent.

MEMORANDUM AND ORDER

AUDREY G. FLEISSIG, District Judge.

This matter is before the Court on the petition of Missouri state prisoner Gregory E. Stevenson for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Upon reconsideration under Federal Rule of Civil Procedure 59(e) of this Court's Memorandum and Order denying habeas corpus relief, and after an evidentiary hearing on the matter, the Court finds that habeas relief should be granted on the ground that defense counsel was ineffective in failing to request the removal of a biased juror.

BACKGROUND

Petitioner was convicted of one count of felony assault of a law enforcement officer and one count of armed criminal action for shooting at the officer. He titled two separate claims in his amended petition for federal habeas relief (Doc. No. 31) as "Ground 2." In the first Ground 2 he claimed that his trial counsel was ineffective for failing to move to strike a certain juror for cause after she stated in voir dire that she had friends who were police officers and that she could therefore not be impartial.

In its January 28, 2014 Memorandum and Order, the Court concluded, in relevant part, that the above claim was procedurally defaulted because it was not raised to the motion court in Petitioner's state post-conviction proceedings. The Court further concluded that Martinez v. Ryan, 132 S.Ct. 1309 (2012) (holding that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial" where the prisoner demonstrates that "the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit"), did not provide a basis for overcoming the default.

On February 20, 2014, Petitioner moved for reconsideration under Federal Rule of Civil Procedure 59(e). Petitioner asserted that the Court erred in ruling that Martinez did not warrant a finding of cause and prejudice to excuse his default of the claim that his trial counsel was ineffective in failing to strike a juror for cause.

The juror in question was Teresa Schoenberger. At voir dire, the prosecutor asked the venirepanel whether anyone had family members who were attorneys, probation officers, or law enforcement officers in the area. Sixteen panel members answered in the affirmative, and in each case, the prosecutor followed up with the question whether there was anything about the venireperson's experience "that would cause [him or her] not to be fair and impartial in this case today." ( See, e.g., Resp. Ex. A at 37-50.) Ten of the 16 venirepersons in question answered firmly that they could be fair and impartial. ( Id. at 40-46, 50.)

Three venirepersons gave more ambiguous answers regarding their ability to remain impartial. Venireperson Goode testified that she would "like to think" there was nothing about her brother being a police officer that would prevent her from being impartial but she "wouldn't guarantee it." ( Id. at 37.) The prosecutor then attempted to rehabilitate this juror by asking "[s]o... you're not sure you can [be] able to set your experience aside, and just be fair and impartial here today?" ( Id. at 38.) Venireperson Goode responded that she "would like to think [she] could be." ( Id. ) Likewise, Venireperson Rippee answered that she had a brother in law enforcement, and she would "be fair, " but it would be "close to home." ( Id. at 39.) The prosecutor attempted to rehabilitate by asking whether she would "try to set [her] feelings aside and try to be fair and impartial today?" ( Id. ) Venireperson Rippee answered "[y]es." ( Id. ) Venireperson Hartsell similarly answered that his neighbors were state highway patrol officers and he "might have a problem listening about" an assault on a law enforcement officer. ( Id. at 47.) The prosecutor again attempted to rehabilitate this juror by asking whether he could "follow the instructions and be fair in this case, " and Venireperson Hartsell answered "[y]es, I think I could, but... it would be hard for me to do so." ( Id. )

The remaining three venirepersons who had relationships with law enforcement officers answered that they could not be impartial or that they would have trouble being impartial. These were Venirepersons Mason, Brown, and Schoenberger. Venireperson Mason answered that his experience having a neighbor who was a federal agent would make it "pretty tough" to be impartial. ( Id. at 47-48.) Venireperson Brown testified that because her niece was married to a police officer, she "[didn't] know if [she] could honestly be impartial" and she would "probably say guilty." ( Id. at 48-49.)

With respect to Venireperson Schoenberger, the following exchange took place:

VENIREPERSON SCHOENBERGER: I have three good friends that are police officers.
PROSECUTOR: Okay.
VENIREPERSON SCHOENBERGER: They're in St. Louis County and one in Jefferson County. But I don't ...

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