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Holmquest v. Larkins

United States District Court, W.D. Missouri, Western Division

November 13, 2014

STEVE LARKINS, Respondent.


BRIAN C. WIMES, District Judge.

Petitioner, a convicted state prisoner currently confined at the Chillicothe Correctional Center in Chillicothe, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's direct appeal ( State v. Holmquest, 243 S.W.3d 444 (Mo. App. 2007)), motion for post-conviction relief, and appeal therefrom ( Holmquest v. State, 419 S.W.3d 904 (Mo. App. 2014)) were denied. Petitioner now challenges her 2005 convictions and sentences for second-degree murder, first-degree robbery, and first-degree burglary, which were entered in the Circuit Court of Cass County, Missouri.

Petitioner raises four (4) grounds for relief: (1) trial counsel was ineffective for failing to file a timely motion for change of venue; (2) direct appeal counsel was ineffective to failing to assert that the trial court erred in failing to transfer venue; (3) trial court erred in denying her motion for judgment of acquittal due to insufficient evidence of her guilt; and (4) trial counsel was ineffective for failing to file a timely motion to suppress evidence of petitioner's statement that she wanted her grandfather "robbed and gunned." Doc. No. 1, pp. 5-9. Respondent contends that all grounds are without merit.


In affirming petitioner's convictions and sentences, the Missouri Court of Appeals set forth the following facts:

The record on appeal indicates that the victim, David Zeller, was robbed and murdered in his home in Harrisonville, Missouri, on the night of January 16, 2005. His daughter, Shirley Ann Phillips, found his body the next morning. An investigation into his death revealed that those involved included Elvis Thornton, Regis Rummans, Veronica Villanueva, and Eric Villanueva.
[Petitioner] is the granddaughter of the victim, David Zeller. [Petitioner] was a friend of Veronica Villanueva. [Petitioner] first mentioned to her friend in February of 2004 that her grandfather had a safe in his house. [Petitioner] said she wanted her friend to find a couple of people to rob him.
On the night of January 7, 2005, Veronica Villanueva called [petitioner] and asked her for a ride to a local McDonald's. [Petitioner] took Veronica and Eric Villanueva (Veronica's brother) and Rummans to the McDonald's. In the car, [petitioner] told Veronica, Eric, and Rummans that she wanted her grandfather robbed and "gunned." [Petitioner] said that her grandfather had twelve million dollars in a safe underneath the floor of his office. She also indicated that she would like to burglarize the home of a wealthy business owner to whom she was not related.
The next day Veronica, Eric, and Rummans helped [petitioner] move. After they helped her move, they drove by the houses of the two prospective victims so that [petitioner] could show the others the locations. When they arrived at Mr. Zeller's house, [petitioner] and Veronica went inside to speak to him. [Petitioner] informed the other passengers that a light would turn on in the room where the safe could be found. While [petitioner] and Veronica were in the house, the light in the office was turned on, and Veronica tapped her foot on the floor to locate the safe. When they returned to the car, Veronica told Eric and Rummans that there was no safe in the house because she had not located it by tapping her foot on the floor. [Petitioner] insisted that the safe was there but that they would have to cut a hole in the floor to get to it. [Petitioner] also told Eric and Rummans that she would purchase handguns, ski masks, black bags, and black clothes if they needed it for the robbery.
A week later on January 15 around ten o'clock in the evening, Veronica and Eric were at their house with Elvis Thornton. Eric asked Thornton to give them a ride to Harrisonville in order to rob David Zeller. Thornton agreed to give Eric a ride, and the three went to David Zeller's house in Harrisonville. When they arrived at Mr. Zeller's house, Eric got out of the car and knocked on the front door. Mr. Zeller informed him that he does not open his door after dark, so Eric returned to the car and the three left.
The next night they returned. This time Eric, Veronica, Thornton, and Rummans were all in Thornton's car. Veronica dropped the others off at the house and gave Eric fifty cents to call her when they were ready to be picked up. She then went to a truck stop to wait.
Although there was no direct testimony as to what actually occurred in the house that night, the circumstantial evidence suggests that Eric, Rummans, and Thornton broke into Mr. Zeller's house, stole guns and other items, and shot him twice. One shot hit Mr. Zeller in the leg and one hit him in the back. The shot in his back was fatal. The house was placed in disarray. A hole was cut in the floor of Mr. Zeller's office. The three also stole Mr. Zeller's truck from his garage and drove it to the truck stop to meet Veronica.
After an investigation into Mr. Zeller's murder, Veronica, Eric, Rummans, and Thornton were all arrested. [Petitioner] was also arrested and charged for her involvement in the criminal enterprise. She was charged with one count of second-degree murder, one count of first-degree robbery, and one count of first-degree burglary. After hearing the above-outlined evidence, the jury returned a verdict of guilty on all counts. [Petitioner] waived jury sentencing, and the court sentenced her to life in prison for the murder count, fifteen years for the robbery count, and another fifteen years for the burglary count.

State v. Holmquest, 243 S.W.3d 444, 446-47 (Mo.App. 2007).

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).[1] Because the state court's findings of fact have fair support in the record and because petitioner ...

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