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Hernesto v. Denney

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

January 13, 2015

VICTOR HERNESTO, Petitioner,
v.
LARRY DENNEY, Respondent.

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

GARY A. FENNER, District Judge.

Petitioner, a convicted state prisoner currently confined at the Crossroad 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 conviction and sentence for robbery in the first degree. Petitioner presents three (3) grounds for relief: (1) trial court error in not declaring a mistrial when Detective Michael Blakemore testified that a witness told Detective Blakemore that petitioner had pointed a gun at the witness; (2) ineffective assistance of trial counsel for failure to object to a variance between the charge and the instructions; and (3) ineffective assistance of appellate counsel for failure to claim that the trial court plainly erred in accepting the State's proposed instructions due to a variance between the charge and the instruction. Respondent contends that petitioner's claims are without merit.

FACTUAL BACKGROUND

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

Viewed in the light most favorable to the verdict, the evidence established that, on July 6, 2008, Herendira Medrano went to the Apple Market grocery store in Kansas City. When Medrano came out of the store, she loaded her groceries into her car, placed her four-year-old son in the car and fastened his seat belt, and then got in her car to leave. While Medrano was getting in her car, a man approached the car, opened the door, and threatened Medrano with what Medrano believed to be a handgun. The man demanded Medrano's property and told her to get out of the car.
Medrano refused to relinquish her car with her son in the back seat. She did, however, give the man her purse, two bracelets, and two necklaces. The man then pulled a rosary from her son's neck. The man kept yelling at Medrano to get out of the car while pointing a gun in her face. When Medrano attempted to grab the gun, a bystander approached and asked them to stop. The man told the bystander, "Don't get involved." The bystander then tried to get in front of the man, and the man ran away.
After the robbery, Officer Blake Groves of the Kansas City, Missouri, Police Department responded to the scene and spoke with Medrano. Groves discovered that the Apple Market had video surveillance footage of the robbery.
On July 7, 2008, Kansas City Police Detective Michael Blakemore began a search for the robber. Blakemore obtained copies of the video footage from the manager of the Apple Market and released it to local television stations to broadcast in hopes that a viewer would recognize the robber and call the police. Another police officer saw the video on a news broadcast and informed Blakemore that he recognized the suspect as [petitioner]. Blakemore prepared a six-person photographic lineup containing [petitioner]'s picture and showed it to Medrano. Medrano identified [petitioner] as the robber.
On July 11, 2008, Officer Groves saw [petitioner] standing at a bus stop in front of the Apple Market, and Groves recognized [petitioner] from the video surveillance tape. Groves arrested [petitioner]. As he was booking [petitioner] into jail, Groves confirmed [petitioner]'s identity as the robber by [petitioner]'s facial tattoos, which were visible in the video footage.
Detective Gary Eastwood interviewed [petitioner] after reading him the Miranda warnings. [Petitioner] told Eastwood that he approached Medrano with a plastic toy gun that "looked real." [Petitioner] said that he did not know that there was a child in the car when he first approached, but he acknowledged that he took a necklace off the boy's neck. [Petitioner] also confessed to taking Medrano's purse. [Petitioner] told Eastwood that a man tried to intervene and that he pointed his toy gun at the man.
The State charged [petitioner] with one count of robbery in the first degree and one count of armed criminal action. After a trial, the jury found [petitioner] guilty of robbery in the first degree charge but deadlocked on the armed criminal action count. Because the jury was unable to reach a verdict on the armed criminal action count, the circuit court declared a mistrial as to that count. The jury recommended a sentence of twenty-five years imprisonment, and the circuit court followed the jury's recommendation and sentenced [petitioner] to twenty-five years imprisonment.

Resp. Ex. F, pp. 2-4.

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 has ...


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