United States District Court, W.D. Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
GREG KAYS, District Judge.
Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center in Cameron, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 convictions and sentences for second degree felony murder and second degree assault, which were entered in the Circuit Court of Boone County, Missouri, on a change of venue from Greene County, Missouri. Petitioner's conviction and sentence was affirmed on direct appeal. State v. Bolden, 330 S.W.3d 868 (Mo.Ct.App. 2011). 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. Bolden v. State, 413 S.W.3d 658 (Mo.Ct.App. 2013).
Petitioner currently raises two (2) grounds for relief: (1) his conviction violates the Due Process Clause because Mo. Rev. Stat. § 565.082 does not give adequate and fair notice that petitioner's assault on hospital staff Ruby constituted an attack on emergency personnel in violation of the state criminal law; and (2) his convictions of both felony murder and second degree assault violate the "merger doctrine" because petitioner's act of kicking the victim in the head, which formed the basis for the assault, was the same act that caused the victim's death, which merged into the homicide. Doc. No. 1, pp. 16, 18.
Respondent argues that the factual bases for petitioner's claims were available at the time of trial and discoverable through the exercise of due diligence and that petitioner procedurally defaulted the two above grounds for relief because they are not the same legal arguments that petitioner raised in the state courts on either direct appeal or in his post-conviction proceeding. Moreover, petitioner also failed to raise such claims in his post-conviction appeal. Respondent also argues that petitioner cannot overcome his state procedural default because petitioner has failed to show actual cause for and prejudice resulting from his default or that he is actually innocent. Doc. No. 9, pp. 5-8.
In affirming petitioner's convictions and sentences, the Missouri Court of Appeals set forth the following facts:
The facts are undisputed. On August 2, 2008, Springfield police responded to a call that Bolden had doused himself in gasoline. When the police arrived at the scene, Bolden fled. The police called in a canine unit to locate Bolden. While being apprehended, Bolden was bitten by the canine tracking unit and required medical attention.
An ambulance was called. Before Bolden was placed in the ambulance, his shorts were cut off and he was rinsed off with water to dilute the gasoline. At this point, Bolden was nude and restrained with handcuffs. Bolden refused to cover up with an offered sheet and instead attempted to masturbate. Bolden was eventually loaded into the ambulance, though he was calling out obscenities and struggling with the police and paramedics.
Bolden was taken to the Cox North emergency room. In route to the emergency room, the paramedics informed the hospital staff that Bolden was "very violent." Security personnel, Ruby and Robert Wheatley ("Wheatley"), were waiting when Bolden arrived. While custody was being transferred from the paramedics to the hospital staff, Bolden was kicking and bucking off the hospital cot.
After he was transferred to the hospital staff, Bolden continued to resist, yelling and threatening staff. Bolden "zeroed in" on Ruby and began making derogatory remarks to Ruby. Ruby did not respond. Bolden was restrained by handcuffs attached to the side rails on the hospital bed.
Doctors attempted to treat Bolden's dog bite, but he continued to resist. Bolden was prepared for transfer to Cox South hospital for surgery. While awaiting transfer, Ruby, Wheatley, Price (the acting major crime investigator for the Springfield police department), and two nurses stayed near Bolden's room. Bolden continued to verbally insult the staff and repeatedly kicked off his sheet, exposing himself to the female nurses and attempting to masturbate.
Ruby went into Bolden's room to cover Bolden. Ruby held Bolden's head down, with one cheek against a pillow. Ruby instructed Bolden to calm down. Bolden told Ruby to get his hands off him and to quit chocking him. Ruby let go of Bolden's head and turned to walk away. Bolden twisted his lower torso and kicked Ruby in the back of the head. Ruby stumbled forward and caught himself. Ruby steadied himself and assisted Price, Wheatley, and another security officer in holding Bolden down until leg restraints could be applied. After Bolden had been restrained, Ruby began to exit the room and his knees buckled. Nurses caught Ruby and put him on a stretcher. Subsequent test revealed massive, inoperable bleeding in the brain, which ultimately resulted in Ruby's death.
Bolden v. State, 413 S.W.3d ...