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Tobias v. Bowersox

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

February 6, 2015

PATRICK TOBIAS, Petitioner,
v.
MICHAEL BOWERSOX, Respondent

ORDER

DOUGLAS HARPOOL, District Judge.

Before the Court is Petitioner Patrick Tobias' Petition for a Writ of Habeas Corpus. (Doc. No. 1). Respondent filed a "Response to Order to Show Cause Why a Writ of Habeas Corpus Should not Be Granted." (Doc. No. 9), and Petitioner filed a Traverse (Doc. No. 14). Therefore, the matter is now ripe for review. Petitioner Patrick Tobias is incarcerated at the South Correctional Center in Licking, Missouri as a result of the sentence and judgment issued by the Circuit Court of St. Louis, County, Missouri. A jury found Tobias guilty of murder in the first degree pursuant to § 569.140 R.S Mo and for armed criminal action pursuant to § 571.015 R.S. Mo. Tobias was sentenced to life in prison without parole for murder and twenty-five years for armed criminal action. Petitioner's convictions were affirmed on direct appeal. State v. Tobias, 299 S.W.3d 31 (E.D. Mo. 2009). Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup.Ct. R. 29.15, the denial of which was also affirmed. State v. Tobias, 368 S.W.3d 241 (E.D. Mo. 2012).[1]

Petitioner now seeks relief from this Court pursuant to § 2254. Petitioner raises eleven grounds for relief in his petition: 1) the trial court abused its discretion in denying Petitioner's Motion for New Trial or in the alternative, Motion to Examine Jurors Subsequent to Entry of Verdict; 2) the trial court abused its discretion in overruling Petitioner's objections to the prosecutors' statements in closing argument regarding Petitioner's wife not talking to the prosecutors; 3) the motion court erred in accepting post-conviction counsel's "statement in lieu of filing an amended motion;" 4) the motion court erred in overruling Petitioner's Rule 29.15 motion without holding an evidentiary hearing; 5) the motion court erred in overruling Petitioner's Rule 29.15 motion without making specific findings of fact; and 6) the state withheld exculpatory evidence. The remaining grounds are based on alleged ineffective assistance of counsel claims including: 7) trial counsel's failure to investigate a ballistic expert; 8) trial counsel's failure to confront Dr. Turner; 9) trial counsel's failure to confront Officer George; 10) trial counsel's failure to investigate the toxicology report; and 11) trial counsel's failure to investigate and call Detective Lloyd.

Respondent contends Grounds Three, Four and Five assert state law procedural errors that are not a valid basis for federal relief. Respondent further contends Petitioner defaulted Grounds Six through Eleven on post-conviction appeal by not adequately developing his argument in his appellate brief. Respondent argues "since Tobias included these claims in his post-conviction motion, any claim of cause based on ineffective assistance of counsel is without merit."

BACKGROUND

The following background is taken from the Missouri Court of Appeals Memorandum Supplementing Order Affirming Judgment Pursuant to Rule 30.25 and the Missouri Court of Appeals Memorandum Supplementing Order Affirming Judgment Pursuant to 84.16(b). Respondent's Exhibits K and Q.

On December 11, 2006, Tobias, suspicious of his wife, Sherron's behavior, hid in the trunk of her car with food, water, a pillow, and a loaded gun. Although Sherron and Ashley Jamerson ("the victim") had previously had an affair, they were no longer sexually involved. Sherron testified she was unaware Tobias was in her trunk when she drove to the nursing home where she had previously worked with the victim. Sherron arrived at the nursing home and learned Jamerson was not working that night. Sherron then called him and drove to his home. When Sherron got to the victim's house, Tobias jumped out of the trunk and confronted him.
Officer Rodney Woodall was patrolling on the victim's street late that night when he observed two men arguing in the middle of the street from his patrol car. He testified that Tobias "moved his hands up and down" in a more aggressive manner, while the victim had his hands by his side. As Officer Woodall slowed his car to stop, he saw Tobias reach in his waistband, pull out a handgun and shoot the victim four times. The victim died from a gunshot wound to his neck.
The defendant's only witness was Sherron Tobias. At trial, she testified that she exited her car and hugged the victim when the defendant jumped out of the car. According to Sharon's testimony, the victim was wearing brass knuckles, throwing his hands and yelling at the defendant. On cross-examination, Sherron stated that she never called the police or the prosecutor to tell them that the victim had brass knuckles, or that she had hugged him. She admitted the police and investigator had contacted her children but stated she did not know they were trying to contact her. The state asked "Because you wouldn't call us back when we left you messages?" The defendant objected arguing the question assumed facts not in evidence. The trial court overruled the objection because Sherron had previously stated her children had received phone calls from the police. Sherron never answered this question, and the State finished its cross-examination.
A jury convicted Tobias of first-degree murder and armed criminal action. Defendant moved for a new trial, arguing the State argued facts not in evidence, including that Sherron would not respond to the investigator or prosecutor. The defendant also filed a motion for new trial or in the alternative defendant's motion to examine jurors subsequent to entry of verdict.
The court sentenced him as a prior offender to life without parole on both counts, the sentences to run concurrently. This Court affirmed his convictions. State v. Tobias, 299 S.W.3d 31 (E.D. Mo. 2009). Tobias filed a motion for post-conviction relief pursuant to Rule 29.15, which was denied without an evidentiary hearing.
Respondent's Exhibits K and Q (internal quotations omitted).

LEGAL STANDARD

A district court shall entertain petitioner's application for a writ of habeas corpus if the person is in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). "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. 1984). The state court's determination of factual issues shall be presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, the state courts' findings have fair support in the record and the petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous. Therefore, the Court defers to and adopts the factual findings of the state court.

GROUND ONE

In Ground One, Petitioner asserts a claim that the trial court abused its discretion in denying Petitioner's motion for new trial, or in the alternative motion to examine jurors. Petitioner argues that a prospective juror provided an affidavit and then testified that she overheard another prospective juror discuss Petitioner's prior criminal history. Petitioner argues the trial court's failure to allow questioning of all jurors deprived petitioner of his due process and right to a fair trial by an impartial jury.

The Court of Appeals denied this ground as follows:

The defendant argues that a complete and thorough examination of the jurors would be the only way to ascertain whether the jury had knowledge of the defendant's criminal history. He asks the court to reverse and remand for a hearing where he can question the jurors. Courts have discretionary power to grant permission for contact with jurors after a trial. Strong v. State, 263 S.W.3d. 636, 643 (Mo. Ban 2008)(citing State v. Jones, 979 S.W.2d 171, 183 (Mo. Banc 1998)). We will review the trial court's denial of the defendant's motion to examine jurors for an abuse of discretion. The trial court abuses its discretion when its ruling is clearly against logic of circumstances then before the ...

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