United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN C. HAMILTON, District Judge.
This matter is before the Court on Petitioner Ramell Dunn's Petition for Writ of Habeas Corpus, which Dunn filed on April 27, 2012 pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1). The Petition has been fully briefed and is ready for disposition.
On February 15, 2008, Dunn was convicted by a St. Louis, Missouri jury on two counts: (I) murder in the first degree and (II) armed criminal action ("ACA"). For the first-degree murder count, Dunn received a sentence of life without parole. For the ACA count, he received a sentence of thirty years. The sentences run consecutively.
The State's position throughout Dunn's trial was that the murder for which Dunn was ultimately convicted occurred in St. Louis at 5:12 p.m. on May 15, 2005. (State PCR Order, Resp. Exh. C, App. A at 2; PCR Appellate Order, Resp. Exh. E, at 2). "It was established very early on in this case, that [Dunn] was going to rely upon the defense of alibi." (State PCR Order at 1). The alibi Dunn intended to rely on was that at the time of the murder he was at his grandmother's barbecue, which was several hundred yards from the scene, and therefore could not have been the perpetrator. Id. at 2; (PCR Appellate Order at 2). Dunn's attorney endorsed several witnesses who were willing to testify to this. (State PCR Order at 1-2). At trial, the first witness Dunn's attorney called was Delisa Hinton, the mother of Dunn's child, who Dunn's attorney believed to be his best witness. (PCR Appellate Order at 2, 4). After perceiving inconsistencies in Hinton's testimony, Dunn's attorney decided not to call any further alibi witnesses. (State PCR Order at 2).
In the state post-conviction proceeding that Dunn filed pursuant to Missouri Supreme Court Rule 29.15, Dunn made several claims. One was a claim for ineffective assistance of counsel based on his trial counsel's failure to call the remaining alibi witnesses. Id. 3. The state post-conviction court found that Dunn had abandoned all claims other than his ineffective assistance claim by failing to argue them. Id. at 3-4. It then denied Dunn's ineffective assistance claim on the merits. Id. at 10-11.
Dunn appealed the state post-conviction court's order. In addition to challenging the postconviction court's ruling on his ineffective assistance claim, Dunn argued for the first time on appeal that his post-conviction counsel erred by abandoning him. (PCR Appellate Order, Resp. Exh. E, at 3). The state post-conviction appeals court found both that Dunn had not followed the correct procedure in bringing his abandonment claim and that the state post-conviction court did not err in denying relief on his ineffective assistance claim. Id. at 4-5.
Dunn raises four claims in this Petition: (I) that he was denied due process when the state post-conviction court failed to find that Dunn's post-conviction counsel had abandoned him; (II) that he was denied due process when his "Post-Conviction Counsel failed to fulfill his obligations under Rule 29.15 (e)[;]" (III) that he was denied due process when the state postconviction court "failed to grant relief on his claim that Trial Counsel was ineffective for failing to call more than ten Alibi Defense witness [ sic ] at his trial[;]" and (IV) that his trial counsel was ineffective in failing to call the additional alibi witnesses. (Petition, ECF No. 1, at 16, 21, 22-23, 27).
I. Grounds I and II
Dunn's first two proposed grounds for relief are essentially indistinguishable. In both, Dunn contends that his post-conviction counsel committed constitutional error by abandoning him during the state post-conviction proceedings. (Petition at 16, 21). As noted above, this claim was raised for the first time on Dunn's appeal of the state post-conviction court's ruling. The post-conviction appeals court found:
The motion court retains jurisdiction over its final judgment on a Rule 29.15 motion for thirty days. Rule 75.01; Edgington v. State, 189 S.W.3d 703, 706 (Mo. App. W.D. 2006). The only exception to this limitation allows the court to reopen a post-conviction proceeding to address a claim of abandonment by post-conviction counsel. Grays v. State, 275 S.W.3d 392, 393 (Mo. App. E.D. 2009). Abandonment is limited to instances in which post-conviction counsel: (1) failed to file an amended petition on movant's behalf without explanation, (2) filed an untimely amended motion, or (3) filed a motion so patently defective that it amounted to a nullity. Id.
The proper method for raising a claim of abandonment would have been to first bring a motion to reopen the PCR proceedings in the trial court. Dunn instead raises this issue for the first time on appeal. Claims which should have been presented to the motion court cannot be raised for the first time on appeal. Stokes v. State, 671 S.W.2d 822, 824 (Mo. ...