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Moyers v. Bowersox

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

December 8, 2014

JUSTIN T. MOYERS, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

HENRY EDWARD AUTREY, District Judge.

Petitioner, a convicted state prisoner currently confined at the South Central Correctional Center in Licking, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Petitioner challenges his 2007 conviction and sentence for second-degree murder, which was entered in the Circuit Court of Clay County, Missouri. Petitioner's conviction and sentence were affirmed on direct appeal (Respondent's Exhibit G); his motion for post-conviction review filed pursuant to Mo. Sup.Ct. R. 29.15 was denied (Respondent's Exhibit J, pp. 48-62); and the appeal thereof was dismissed as untimely filed (Respondent's Exhibit K-M).

Petitioner's amended petition asserts five (5) grounds for relief: (1) ineffective assistance of trial counsel for failing to examine and challenge petitioner's arrest warrant; (2) ineffective assistance of trial counsel for failing to suppress petitioner's written statement to police; (3) ineffective assistance of trial counsel for failing to use state's witness, Larry Brophy, to show that petitioner's grandmother had made a statement that the witness attributed to petitioner, and for failing to show the jury that petitioner's September 15, 2001, written statement was made in response to his grandmother's allegations; (4) ineffective assistance of trial counsel for failing to exclude expert testimony of Dr. Gulino; and (5) due process violations based on the state's use of false statements to obtain an arrest warrant and on petitioner's September 15, 2001 written statement.

Petitioner's first petition raised only two claims - actual innocence and ineffective assistance of post-conviction counsel (Doc. No. 1), which respondent argued were not cognizable and failed as a matter of law and fact (Doc. No. 11). After petitioner was ordered to file an amended petition setting forth specific and numbered legal claims with sufficient supporting facts to justify his claims (Doc. No. 25), respondent argued that petitioner's claims were untimely filed and not rendered timely by the relation-back doctrine (Doc. No. 34). In response to this Court's Order to address the merits of petitioner's claims as stated in his amended petition (Doc. No. 37), respondent contends that petitioner has procedurally defaulted his claims and, alternatively, that they are without merit (Doc. No. 52).

FACTUAL BACKGROUND

In affirming petitioner's conviction and sentence, the Missouri Court of Appeals, Western District, set forth the following facts:

In October 1999, Jaimmilynn Millsap and her two children, Miranda (one year old) and Wraith (five years old), lived with Ms. Millsap's boyfriend, Justin Moyers, in a mobile home in Caldwell County. On October 4, 1999, Ms. Millsap's mother watched the children at her residence while Ms. Millsap and Mr. Moyers were working. Miranda fell and hit her head on a chair while at her grandmother's house; she had a bump on her head as a result. Mr. Moyers arrived around 8:00 PM to pick up the children and take them home. He was angry with Ms. Millsap when he arrived; he told Ms. Millsap's mother that Ms. Millsap was having an affair, and he called Ms. Millsap names. Mr. Moyers took the children home; Ms. Millsap was working a night shift and was not present.
Mr. Moyers's mobile home was located next to his parent's mobile home. During the evening of October 4, 1999, Mr. Moyers called his parents and told them that Miranda was not breathing and he needed help. When Mr. Moyers's father arrived at Mr. Moyers's residence, he saw Miranda lying on a blanket with Mr. Moyers nearby. Miranda was blue; she had blood around her lips and bubbles around her nose. Mr. Moyers's father began CPR in accordance with instruction provided by a 911 operator. Two law enforcement officers arrived at Mr. Moyers's house at approximately 10:09 PM. They attempted to perform CPR while waiting for an ambulance to arrive. An ambulance arrived, and Miranda was taken to a hospital at approximately 10:23 PM. When she arrived, she had no signs of life. She was pronounced dead at 11:43 PM.
Mr. Moyers told law enforcement officers that a loud vehicle woke him up, and Miranda was completely covered by a blanket when he checked on her. When he uncovered her, she was not breathing. A police detective observed a bruise and bump on Miranda's face. Upon viewing Miranda's body, Ms. Millsap's mother observed bruising on Miranda's face that was not present when Mr. Moyers picked her up earlier that evening.
On October 5, 1999, the day after Miranda died, Ms. Millsap's mother observed that Wraith's buttocks were black and blue. The marks had not been present when she watched him the prior day. She contacted the sheriff's department. A deputy observed and photographed small red bruises all over Wraith's buttocks. Mr. Moyers admitted spanking Wraith and subsequently pled guilty to misdemeanor assault of Wraith for the spanking.
In his written statement to police, Mr. Moyers again stated that he was awakened by a loud noise, went to check on Miranda, and discovered her wrapped in a blanket. He stated she was almost completely covered by the blanket, that only her foot and a portion of her leg were visible. She was laying face-down. When he uncovered her, she was not breathing. He called his parents and asked them to call 911. His father came over and began CPR; there was a red, foamy material coming out of her mouth.
Shortly after Miranda's death, Ms. Millsap's sister was at the county jail to make a statement. While there, she overheard Mr. Moyers say: "Oh, shit, I killed a nigger." She reported this to a guard, though it was not documented at the time.
On October 5, 1999, forensic pathologist Dr. Samuel Gulino performed an autopsy on Miranda. There were no head injuries, and he was able to exclude disease as the cause of death. He was unable to come to any conclusions to a reasonable degree of scientific certainty as to the cause of death. He ruled the cause of death "undetermined." Dr. Gulino was concerned by the presence of bruising and scrapes on Miranda's face. Those injuries appeared to have occurred within less than 24 hours before her death. Dr. Gulino added a comment to his autopsy report dated November 3, 1999, that the facial injuries were "worrisome for non-accidental injury and the case is therefore suspicious for foul play." He also wrote that "an asphyxia death such as suffocation cannot be excluded."
Dr. Gulino subsequently moved to Florida. During the summer of 2001, he was asked by law enforcement officers to examine additional information and re-examine Miranda's case. On September 18, 2001, Dr. Gulino wrote the Jackson County, Missouri, Medical Examiner's Officer a letter stating that, based upon additional investigative information provided to him by law enforcement, he was reclassifying the case as a homicidal asphyxia. He requested the following changes to the front sheet of the autopsy report: manner of death from undetermined to homicide; immediate cause of death from undetermined to asphyxia; and how injury occurred from reportedly found unresponsive not breathing to assaulted by other. An amended autopsy report was issued October 3, 2001. The only change was a new face sheet replacing the old face sheet. The cause of death was listed as asphyxia, and the manner of death was listed as homicide.
There were no changes from a medical standpoint between the time of the original report and the amended report. The new information Dr. Gulino received included a written statement made by Mr. Moyers wherein he described an action he did while attempting to stop Miranda's crying. Mr. Moyers stated he pushed Miranda down in a corner where she was lying, and she stopped crying. It was Dr. Gulino's opinion that Miranda was intentionally suffocated. The fact that there were facial bruises would not be consistent with an accidental death due to a blanket being wrapped around Miranda. Further, that blood was ...

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