United States District Court, E.D. Missouri, Eastern Division
TORREY T. LINDSEY, Petitioner,
TERRY RUSSELL, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ABBIE CRITES-LEONI, Magistrate Judge.
This matter is before the Court on the Petition of Torrey T. Lindsey for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b).
The Petitioner, Torrey T. Lindsey, is presently incarcerated at Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of the City of St. Louis, Missouri. (Respondent's Exhibit B at 41-44.) On July 8, 2009, following a jury trial, Lindsey was found guilty of trafficking crack cocaine in the second degree. (Respt's Ex. A at 11, 334.) Lindsey was sentenced to fourteen years imprisonment. Id. at 341.
Following his conviction in State court, Lindsey raised two points on direct appeal. In his first point, Lindsey argued that the trial court erred in overruling his objection to testimony regarding an anonymous tip on the ground of hearsay. (Respt's Ex. C at 15.) In his second point, Lindsey argued that the trial court plainly erred in sustaining the state's hearsay objection and precluding defense witnesses from testifying. Id. at 16. The Missouri Court of Appeals for the Eastern District affirmed Lindsey's conviction on May 11, 2010. (Respt's Ex. F.)
Lindsey filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence under Missouri Supreme Court Rule 29.15. (Resp't Ex. G at 3-10.) After the appointment of counsel, Lindsey filed a First Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing. Id. at 14-25. In the amended motion, Lindsey raised the following ineffective assistance of counsel claims: (1) trial counsel did not access the records of the jurors, which led to errors in jury selection; (2) trial counsel failed to give notice of the address of witness Fenton Bailey; (3) trial counsel failed to object to the prosecutor's comment in opening statement that Lindsey was selling drugs; (4) trial counsel failed to obtain a limiting instruction regarding the anonymous tip; (5) trial counsel failed to object to identification of Lindsey as beyond the scope of cross examination when the prosecutor neglected to ask for it on direct examination; (6) trial counsel failed to conduct an adequate investigation; (7) trial counsel committed errors in presenting the motion to suppress; (8) trial counsel failed to interview key witnesses; (9) appellate counsel failed to raise on appeal the issues indicated above, which trial counsel did not object to, as "plain error"; and (10) appellate counsel failed to apply for transfer to the Missouri Supreme Court or to seek a writ of certiorari from the United States Supreme Court. Id . The motion court denied Lindsey's motion and his request for an evidentiary hearing. Id. at 28-35.
Lindsey raised a single claim on appeal from the denial of post-conviction relief. Lindsey argued that trial counsel was ineffective in failing to investigate or seek a limiting instruction regarding the anonymous tip. (Respt's Ex. H.) The Missouri Court of Appeals for the Eastern District affirmed the denial of post-conviction relief. (Respt's Ex. J.)
On February 6, 2012, Lindsey, pro se, filed the instant Petition for a Writ of Habeas Corpus. (Doc. 1.) Lindsey raises three grounds for relief. In his first ground for relief, Lindsey argues that the trial court erroneously admitted hearsay regarding a statement made by an anonymous tipster. In his second ground for relief, Lindsey contends that the trial court plainly erred in excluding hearsay statements offered by two defense witnesses. In his third ground for relief, Lindsey argues that trial counsel was ineffective for failing to investigate or seek a limiting instruction regarding the anonymous tip. On May 24, 2012, Respondent filed a Response to Order to Show Cause, in which he argues that Lindsey's claims fail on their merits. (Doc. 7.) Lindsey also filed a Traverse, in which he provides further argument in support of his claims. (Doc. 12.)
The Missouri Court of Appeals summarized the relevant facts as follows:
During the week of April 9, 2007, the Crime Suppression Unit (CSU) of the St. Louis Police Department (SLPD) received a tip from an anonymous caller that [Lindsey], who drove a red and white older model Blazer, sold drugs in the 2000 block of Agnes. The CSU passed this tip on to Officer Martin Garcia (Garcia) and Detective Joe Steiger (Steiger), who commenced surveillance on that block. During their surveillance, they noticed a vehicle matching the described Blazer enter the block and park on the street. The driver of the vehicle sat for several minutes before getting out and walking to a house on one side of the street, which he never entered.
The officers ran the vehicle's license plate which revealed the car belonged to [Lindsey]. The officers pulled up [Lindsey]'s driver's license to obtain his photo. The photo on the driver's license matched the driver of the vehicle.
On April 17, 2007, Garcia and Steiger were conducting surveillance again on Agnes when [Lindsey] pulled up in the vehicle, parked and sat. The officers decided to approach [Lindsey]. As they approached, [Lindsey] opened his car door. His left hand was on the steering wheel and his right hand was in his lap, and he was looking in the officers' direction. After making eye contact with Garcia, [Lindsey] dropped a white object and started scraping his right foot back on the floorboard of the car in the area where the object had dropped. Garcia noticed the object appeared to be wrapped in cellophane and suspected it was crack cocaine.
Garcia arrested [Lindsey] and advised him of his Miranda rights. [Lindsey] was transported to the police station and booked. Garcia found $287 on [Lindsey]. After testing the white object, the SLPD Crime Lab determined it to be 21.30 grams of crack cocaine. [Lindsey] was then charged by indictment, as a prior and persistent offender and prior and persistent drug offender, with second-degree trafficking.
Prior to trial, [Lindsey] filed a motion in limine seeking to keep out information that the police received an anonymous tip that [Lindsey] was involved in the sale of drugs. The State argued that the information was admissible to explain why the police had placed [Lindsey] under surveillance. The trial court ruled that it would allow the information into evidence for that purpose.
Under direct examination, over [Lindsey]'s objection, Garcia testified that he had been given a tip by his direct supervisor that [Lindsey], who lived at or frequented the 2000 block of Agnes and drove a red and white older model Blazer, was involved in drug transactions on that block. Garcia testified that based on that tip, he and Steiger conducted surveillance in that area, which ultimately led to the arrest of [Lindsey] on April 17, 2007. On redirect, over [Lindsey]'s objection, Garcia testified that it was common to receive anonymous tips, and that the majority of the tips the police received were anonymous because people were afraid of retaliation. Steiger also testified that they had received information from their sergeant about drug sales in the neighborhood.
During closing argument, the State declared that there had been "an anonymous tipster, someone who was fed up with having this going on in their area, called and left a tip with the police." The State said after [Lindsey] was observed and then confronted, the officers learned the tip was true. The State remarked that trial counsel "said anybody can leave a tip. Honestly, I guess anybody could leave a tip. That's not what happened in this case, because we know the information in that tip was right. It was true. We know that."
The jury found [Lindsey] guilty as charged. Having previously found [Lindsey] to be a prior and persistent offender and prior and persistent drug offender, the trial court sentenced him to fourteen years without the possibility of parole.
(Respt's Ex. J at 2-4.)
A. Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus... only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, a federal court may not grant habeas relief unless the claim adjudicated on the merits in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. § 2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting ...