United States District Court, W.D. Missouri, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
DOUGLAS HARPOOL, District Judge.
Petitioner, a convicted state prisoner currently confined at Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 conviction and sentence for domestic assault in the second degree, which was entered in the Circuit Court of Greene County, Missouri. Petitioner's conviction was affirmed on appeal, see State v. Shelton, 363 S.W.3d 183 (Mo.Ct.App. 2012); Respondent's Exhibit F, and the denial of his motion for post-conviction relief was affirmed on appeal. See Respondent's Exhibit L.
Petitioner raises three (3) grounds for relief: (1) trial counsel was ineffective for (A) failing to object to a jury instruction that did not cross reference a self-defense instruction and (B) for not requesting a continuance in response to the state's alleged discovery violation; (2) appellate counsel was ineffective for not alleging trial court error in connection with the discovery violation; and (3) prosecutorial misconduct for allegedly making a threat to A.S. (the victim) to get her to waive spousal privilege. Respondent contends that Grounds 1-B and Ground 3 are procedurally barred and that Ground 1-A and Ground 2 are without merit.
In affirming petitioner's conviction and sentence, the Missouri Court of Appeals set forth the following facts:
[Petitioner] was driving on a state highway with his wife [A.S.] and their children. [Petitioner] made a pejorative comment about [A.S]'s promiscuity, she slapped him, then he punched her face repeatedly as the car left the road out of control. Reaching from her passenger seat, [A.S.] applied the brakes, brought the car to a stop, and tried to dial 911. [Petitioner] struck [A.S.] again, took her phone, broke it, jumped out of the car, and ran. [A.S.] drove to a nearby house and called for help.
A uniformed deputy arrived and photographed [A.S]'s injuries. She related where the assault occurred, what [petitioner] looked like, and that he was on foot. The deputy started searching for [petitioner] and soon saw him walking in a pasture some 75 yards off the highway not far from the assault scene. The deputy parked and exited from his marked patrol car, then started walking toward [petitioner]. [Petitioner] saw him, turned, and ran away into the woods. The deputy wanted to detain [petitioner], but could not catch him.
Resp. Ex. F, p. 3.
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.
PROCEDURALLY DEFAULTED GROUND 1-B AND GROUND 3
In Ground 1-B, petitioner contends that trial counsel was ineffective for failing to request a continuance "when objecting to [the] late disclosure of photographs." Doc. No. 1, p. 5. Petitioner's Ground 3 states that there was prosecutorial misconduct for allegedly making a threat to A.S. to get her to waive spousal privilege. Respondent contends that both Grounds 1-B and 3 are procedurally barred, but respondent also argues that both grounds are without merit.
"A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim." Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996). "In order to present a habeas claim to the state court, a prisoner must fairly represent' not only the facts, but also the substance of his federal habeas corpus claim." Barrett v. Acevedo, 169 F.3d 1155 (8th Cir. 1999) (citing Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996), cert. denied, 517 U.S. 1215 (1996)), cert. denied, 528 U.S. 846 (1999). "If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default." Sloan at 1381.
A federal court may not review procedurally defaulted claims "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Petitioner contends in his petition for writ of habeas corpus that he raised Ground 1 on direct appeal. Although petitioner did raise Ground 1-A (relating to trial counsel ineffectiveness for failing to object to a jury instruction that did not cross reference a self-defense instruction) during post-conviction proceedings, he failed to raise Ground 1-B in either his direct appeal or during post-conviction proceedings. Petitioner cannot combine a claim that was never raised before the state courts with a claim that was fully exhausted in order to overcome default; therefore, Ground 1-B is procedurally defaulted. Barrett, 169 F.3d at ...