United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
TERRY I. ADELMAN, Magistrate Judge.
This cause is before the Court on Missouri state prisoner David Wade's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (filed December 19, 2011/Docket No. 1). The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
On March 14, 2007, a jury found Petitioner guilty of burglary in the first degree and third degree domestic assault. (Legal File, Resp. Exh. B at 80-81). On April 27, 2007, the Circuit Court of St. Louis City, Missouri sentenced Petitioner as a prior offender to a term of fifteen-years' imprisonment on the charge of burglary in the first degree and to a concurrent term of one year's imprisonment on the charge of the third degree domestic assault. (Id.). Petitioner filed a notice of appeal on May 2, 2007. (Id.). On March 18, 2008, the Missouri Court of Appeals affirmed Petitioner's convictions and sentence finding that the trial court did not err in overruling his motion for judgment of acquittal at the close of all evidence and in sentencing him for Count I, burglary in the first degree. ( State v. Wade, 254 S.W.3d 103 (Mo.Ct.App. 2008); Resp. Exh. G). The Missouri Supreme Court denied the application for transfer on June 24, 2008. (Resp. Exh. H).
Petitioner filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence under Missouri Supreme Court Rule 24.035 in August, 2008. (Resp. Exh. J). On December 29, 2010, Petitioner's appointed counsel filed an Amended Motion Under 24.035 to Vacate, Set Aside or Correct Judgment and Sentence. (Resp. Exh. I at 6-14). The post-conviction court denied Petitioner's amended motion without an evidentiary hearing on July 6, 2010. (Id. at 15-19). On appeal, Petitioner raised one claim, he received ineffective assistance of trial counsel because his counsel failed to call his parole officer as a witness. On October 25, 2011, the Missouri Court of Appeals affirmed the denial of Petitioner's post-conviction relief. (Resp. Exh. M). The Missouri Court of Appeals issued its mandate on November 21, 2011. (Resp. Exh. N). Petitioner pursued no other action for review of his convictions and sentence in state court. The instant petition for writ of habeas corpus, signed by Petitioner on December 14, 2011, and received by this Court on December 19, 2011, was filed on December 19, 2011, upon Petitioner being granted leave to proceed in this cause in forma pauperis.
Petitioner is currently incarcerated at the Tipton Correctional Center located in Tipton, Missouri, pursuant to the sentence and judgment of the Circuit Court of St. Louis City, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises two grounds for relief: In the instant petition for writ of habeas corpus, Petitioner raises four grounds for relief:
(1) That the State failed to produce sufficient evidence to convict him of first-degree burglary; and
(2) That his trial counsel was ineffective for failing to investigate and call as a witness Elizabeth Will-Smith, his parole officer.
In response, Respondent contends that the grounds for relief in the petition are without merit.
III. Claims Addressed on the Merits
Section 2254(d)(1) requires federal habeas courts to test the determination of state courts "only against clearly established Federal law, as determined by the Supreme Court of the United States, '" and prohibits the issuance of a writ of habeas corpus "unless the state court's decision is contrary to, or involved an unreasonable application of, ' that clearly established law." Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law must be clearly established at the time petitioner's state conviction became final, and the source of doctrine for such law is limited to the United States Supreme Court. Id., 529 U.S. at 380-83.
A state court's decision is "contrary to" clearly established law if "it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005). A decision involves an "unreasonable application" of clearly established law if "the state court applies [the Supreme Court's] precedents to the facts in an objectively unreasonable manner." Id. at 1439; Williams, 529 U.S. at 405. "Federal habeas relief is warranted only when the refusal was objectively unreasonable, ' not when it was merely erroneous or incorrect." Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
As an initial matter, the undersigned notes that the Missouri Court of Appeals summarized the facts regarding the issue on appeal:
Defendant was romantically involved with Donetta Liston, and had two children with her. In the latter half of 2005, Defendant was involved in a number of incidents with Liston that resulted in the police being dispatched to Liston's home. These incidents occurred on: July 30, 2005; July 31, 2005; September 26, 2005; and December 18, 2005. Officer Sheresa Asher ("Officer Asher") of City of St. Louis Police Department was dispatched to Liston's residence on both the incidents of July 2005. On July 30, 2005, Officer Asher witnessed Liston telling Defendant to leave, and she noticed that the pair were "verbally tense" with each other. The following day, Liston called 911 and requested police assistance, and a struggle was heard in the background. By the time Officer Asher arrived, Defendant had left the residence, but she observed that there were signs that the door to the home had been forced. At that time Liston resided at 4634 Page Avenue with her children. Defendant also lived there, but his name was not on the lease, he did not have a key to the home, and he had to be let into the house by someone inside.
Thereafter, Liston moved with her family to 3842 Lee Avenue. Liston and Defendant endeavored to make their relationship work for the sake of their children, and Defendant was permitted to live at the residence on Lee Avenue. However, his name was not on the lease and he did not have a key to the dwelling. Someone always had to let Defendant into the dwelling.
Early in the day on September 26, 2005, Defendant and Liston were arguing at the Lee Avenue home. Liston told Defendant to leave, and he did. Later that same day, Liston heard a boom, which she later determined came from Defendant damaging a window in the basement, breaking the glass. Defendant apparently entered the home through the broken window, and came up the basement stairs, and talked to Liston through the kitchen door. Liston told Defendant to get out. Defendant wanted to talk with her, but she did not wish to talk with him, and they argued. He proceeded to hit Liston in the eye, and struck her with a board. She ran to a neighbor's house and called the police. Defendant fled the scene, getting into a car operated by his brother. ...