United States District Court, W.D. Missouri, Western Division
DAMON L. NOLAND, Petitioner,
IAN WALLACE, Respondent.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
BRIAN C. WIMES, District Judge.
Petitioner, a convicted state prisoner currently confined at the Southeast Correctional Center in Charleston, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for one count of forcible rape and 2010 sentence for life imprisonment without parole for 30 years, which was entered in the Circuit Court of Christian County, Missouri. Petitioner's conviction and sentence was affirmed on direct appeal. State v. Noland, SD30328. Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup.Ct. R. 29.15, the denial of which was affirmed on appeal thereof. Noland v. State, 413 S.W.3d 684 (Mo.Ct.App. 2013).
Petitioner raises five (5) grounds for relief: (1) the trial court erred in giving a faulty jury instruction - Instruction No. 5; (2) his trial counsel was ineffective for failing to object to the admission of videotaped statements of a child witness because of an alleged Confrontation Clause violation; (3) his trial counsel was ineffective for failing to properly inform him about the range of punishment, thereby causing petitioner not to accept the state's plea offer; (4) the trial court erred in allowing the jury, upon request, to view a videotaped Child Advocacy Center ("CAC") interview of the alleged victim during deliberation; and (5) the trial court erred when it overruled his motion for acquittal at the end of the evidence, when it accepted the jury's verdict, and when it sentenced him. Respondent contends that Grounds 1-2 and part of Ground 5 are procedurally defaulted and that the remaining part of Ground 5 is without merit. Respondent also contends that Grounds 3-4 are without merit.
In affirming the judgment of conviction and sentence, the Missouri Court of Appeals, Southern District, explained the following:
[...] [O]n May 20, 2008, Nicole Schrock ("Ms. Schrock"), an investigator with the Children's Division of the Missouri Department of Social Services ("the Children's Division"), received a hotline call regarding K.W., who was ten years old at the time. That same day, Ms. Schrock went to Ozark West Elementary School to interview K.W. K.W. told Ms. Schrock that [petitioner], who was forty-two years old at the time and living in Nixa with K.W. and her mother ("Mother"), "had been doing bad things to her" and revealed that [petitioner] "went inside [her]." Concerning [petitioner] going "inside her, " K.W. said that it happened twice since April 19, 2008: once in her bedroom and once in the bathroom. After interviewing K.W., Ms. Schrock interviewed Mother at her home to discuss the allegations. Mother told Ms. Schrock that previous Sunday, May 18, 2008, K.W. approached her and told her that earlier that morning [petitioner] had entered her room, rubbed baby oil on himself, and "stuck his private in hers." Following her interview with K.W., Ms. Schrock arranged for K.W. to be interviewed at the Child Advocacy Center ("the CAC") in Springfield.
On May 22, 2008, Micki Lane ("Ms. Lane"), the CAC children services coordinator, conducted a forensic interview of K.W.
During the interview, K.W. told Ms. Lane that [petitioner] "did something bad to [her]." She recalled the last time [petitioner] did something "bad" to her was the Sunday prior to the interview, inside the trailer where K.W. and her family lived. K.W. reported that while Mother was at the gas station buying cigarettes, [petitioner] ordered her to go into the bathroom, followed her inside and closed the door. [Petitioner] told K.W. to sit on top of the washing machine located inside the bathroom and had her pull her pants down and spread her legs. [Petitioner], who was standing facing K.W., then applied baby oil to his penis and K.W. said he "put his private into [her] private." K.W. related [petitioner] did not touch her anywhere else. When Ms. Lane asked K.W. if she "ever" told [petitioner] to stop, K.W. said she told him to stop but he refused. K.W. said that something similar had happened on at least two prior occasions - once in [petitioner's] own bathroom in the trailer and once in [petitioner's] bedroom.
[Petitioner] was eventually charged, via felony information, with one count of forcible rape for allegedly having sexual intercourse with K.W. by means of forcible compulsion. A jury trial was held on November 2-3, 2009. At trial K.W. testified although she was never asked specifically whether the facts underlying the charged offense were true and she did not testify about what precisely had happened with regard to the incident in question. At the close of evidence, the trial court denied [petitioner's] motion for judgment of acquittal. During its deliberations, the jury requested all of the exhibits, including Exhibit C, the DVD of K.W.'s interview at the CAC with Ms. Lane. Overruling the objection of [petitioner's] counsel, the judge sent all of the exhibits to the jury, including a DVD player and monitor so the jury could watch the recorded CAC interview of K.W. for a second time. Following deliberations, the jury found [petitioner] guilty of forcible rape and he was sentenced to life imprisonment.
Respondent's Exhibit F, pp. 1-4 (footnotes omitted).
Before the state court findings may be set aside, a federal court must conclude that the state court 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) (2003). Because the state court 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.
GROUNDS 1 AND 2 - PROCEDURALLY DEFAULTED
In Ground 1, petitioner first alleges that the trial court lacked jurisdiction to sentence him to life imprisonment because jury instruction No. 5 was defective in that it did not contain an element of the offense regarding the age of the victim. Doc. No. 1, p. 6. Respondent argues that petitioner procedurally defaulted Ground 1 by failing to raise it on direct appeal or during postconviction relief. Doc. No. 11, pp. 7-9. Apparently, petitioner contends that his Rule 29.15 postconviction counsel's ineffectiveness caused his procedural default by not raising a claim that direct appeal counsel was ineffective for not raising the claim about the trial court's alleged lack of jurisdiction because of the faulty instruction. Doc. No. 1, p. 6. In Ground 2, petitioner alleges his trial counsel was ineffective for failing to object to the admission of videotaped statements of a child witness because of an alleged Confrontation Clause violation. Doc. No. 1, p. 6. Respondent argues that petitioner procedurally defaulted Ground 2 by failing to raise it in his original or amended Rule 29.15 motion for post-conviction relief. Doc. No. 11, pp. 9-11.
"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). "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.... presenting a claim that is merely similar to the federal habeas corpus claim is not sufficient to satisfy the fairly presented requirement." Barrett v. Acevedo, 169 F.3d 1155, 1161-62 (8th Cir. 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 procedural default." Sloan, 54 F.3d 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 violated 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). To satisfy the "cause" requirement, petitioner must show that an "external" impediment prevented him from presenting his claim to the state court in a procedurally proper manner. Id. at 753.
As an exception for establishing cause, the Supreme Court has held 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." Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). Under this narrow exception, petitioner must demonstrate that the postconviction counsel was also ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 688 (1984) (holding that, in order to succeed on a claim for ineffective assistance of counsel, petitioner must be able to show that his attorney's performance fell below an objective standard of reasonableness and that the deficient performance actually prejudiced him). Thus, "[t]o overcome the default, a prisoner must also demonstrate that the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Martinez, at 1318.
Because Ground 1 is a claim of trial court error, petitioner apparently asserts that postconviction relief counsel was ineffective for failing to allege ineffectiveness of direct appeal counsel for failing to bring the claim that the trial court lacked jurisdiction because the jury instruction was fatally defective. Doc. No. 1, p. 6. Initially, the rule of Martinez only extends to claims which may be brought, for the first time, in post-conviction relief, and complaints about trial court error regarding jury instructions must be brought on direct appeal. McNeal v. State, 412 S.W.3d 886 (Mo. 2013). Martinez does not extend to excuse petitioner's procedural default of Ground 1. Dansby v. Hobbs, 766 F.3d 809, 833-34 (8th Cir. 2014). If petitioner is claiming that trial counsel was ineffective for failing to argue that the trial court was without jurisdiction because a defective jury instruction was used (petitioner raised a similar claim in his Rule 29.15 motion, Respondent's Exhibit G, p. 16), such claim is meritless because errors in the jury instructions are not jurisdictional under Missouri law. See Stanton v. Hart, 356 S.W.3d 330, 333-34 (Mo.Ct.App. 2011)(discussing the categorical differences). Petitioner's post-conviction counsel was not ineffective for failing to bring a meritless claim. Jones v. Barnes, 463 U.S. 745, 745 ...