United States District Court, E.D. Missouri, Eastern Division
ORDER AND RECOMMENDATION
TERRY I. ADELMAN, Magistrate Judge.
This matter is before the Court on the pro se petition of Missouri state prisoner Arthur Manning (hereinafter "Manning or "Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury convicted Petitioner of robbery in the first degree and armed criminal action in violation of Mo. Rev. Stat. § 569.020.1 for stealing a cash box during a church fundraiser. Petitioner was sentenced to concurrent terms of life imprisonment and twenty five years.
Seeking federal habeas relief, Petitioner asserts that trial counsel was ineffective: (1) for failing to argue that the evidence was insufficient to support a conviction for first-degree robbery; (2) for failing to object when the trial judge fell asleep during the testimony of a state's witness; (3) because she was distracted by her own legal problems; (4) for failing to failing to argue that the jury instructions with respect to the first-degree robbery charge were erroneous and (5) that trial counsel was ineffective for failing to request that the jury be given a lesser included offense instruction relating to second degree robbery and stealing.
As additional grounds for habeas relief Petitioner asserts deprivations of due process arising from the actions of the trial judge. Specifically, he asserts that the trial judge: (6) failed to submit a lesser-included-offense instruction for second-degree robbery and stealing; (7) fell asleep during the testimony of a state's witness; and (8) failed to require Petitioner's attorney to withdraw despite the fact that he knew she had legal problems.
Petitioner further alleges that his constitutional rights were violated by (9) the prosecutor's assertion that the jurors could identify Petitioner in the videotape of the crime; (10) the prosecutor's erroneous explanation during voir dire of the presumption of innocence; (11) the prosecutor's statement in closing argument that a "mini sledge hammer" was a dangerous instrument capable of causing serious physical injury; and (12) the prosecutor's statement in closing argument that Petitioner had been a robber since the 1970's and that two sheriff's deputies told Petitioner that "the only thing hurting him was his past."
Finally, Petitioner asserts that post-conviction counsel was ineffective (13) for failing to amend Petitioner's post-conviction motion to include a claim that sentencing counsel was ineffective for failing to present Petitioner's sleep disorder as mitigating evidence at sentencing.
Respondent contends that Grounds 1 through 4 and 6 through 13 are procedurally defaulted either because Petitioner abandoned them in his request for post-conviction relief or failed to raise them in any state court proceeding. Respondent further contends that even if Petitioners' alleged grounds for habeas relief were not procedurally barred, each ground discussed here also fails for lack of merit.
Therefore, for the reasons set forth below, Petitioner's request for federal habeas relief will be denied.
I. Background and Trial
The case was tried to a jury in just over three days commencing on April 30, 2007. The Missouri Court of Appeals summarized the portions of the voir dire pertinent to petitioner's claims in this action as follows:
During voir dire the prosecution asked prospective jurors if they were familiar with St. Vincent's Church on Park Ave. Venireperson Ebony Weston, ("Ms. Weston") raised her hand and stated to the judge, the State and jury pool: "I don't know [Petitioner] but I know of him. He's a drug addict that travels through-"
Immediately the State interrupted and asked whether Ms. Weston could approach the bench. Ms. Weston was allowed to approach with counsel for a sidebar conference and continued outside the hearing of the jury pool: "[w]e hang out by the church where he did the crime and he's like a local crack head or whatever. And he comes back and forth through the neighborhood. And you know I don't want nothing to do with that. I know like a couple of his nieces."
The court told Ms. Weston not to speak to anyone on the jury panel and not to answer any additional questions even if they applied to her. Defendant's counsel moved for a mistrial based statement that Ms. Weston made to the entire jury panel on the grounds that it was unduly prejudicial. Defendant argued that Ms. Weston had tainted the entire panel. The State argued that it "cut her off" as soon as she mentioned he was a drug addict and remaining statements were made outside the hearing of the jury.
The court overruled the motion for mistrial and continued with voir dire. Ms. Weston did not sit on the jury.
Resp. Exh. E. at 2-3; see also Resp. Ex. A-1 at 34-40.
The record also indicates that during voir dire the prosecutor told the jury that "the defendant is presumed to be innocent until the State brings forth evidence and proves him guilty." Resp. Ex. A at 49. In response to the statement Petitioner's attorney objected and asked that the prosecutor replace the word "until" with "unless." Id. The prosecutor then did so. Id.
With respect to the evidence that Petitioner committed the crime, the Missouri Court of Appeals summarized the testimony of witnesses, Janice Bent and Jennifer Mayberry, as follows:
[Bent and Mayberry] testified that they chased [Petitioner] out of the church in an attempt to retrieve the box of money [Petitioner] was removing from the church. Their testimony established that [Petitioner] dropped the cash box in the parking lots and as he bent down to retrieve it he pulled out a hammer and swung it at Bent's head. At this time Bent testified she stopped chasing movant out of fear for her life. After Bent and Mayberry stopped pursuing [Petitioner] he picked up the cash box and continued to flee on foot. A third witness, Mr. Mark Knollhoff, also testified that [Petitioner] had a mini sledge hammer in his hand while fleeing. The testimony clearly establishes that [Petitioner] used the hammer as a deadly weapon to retain possession of the cash box while the robbery was occurring and at no time did [Petitioner] abandon the property.
Resp. Ex. K at 3-4.
The jury found Manning guilty of both charges and he was sentenced as a prior and persistent offender to concurrent terms of life imprisonment for robbery in the first degree and twenty five years for armed criminal action.
II. Direct Appeal
On direct appeal, Petitioner argued that the trial court abused its discretion by overruling trial counsel's request for a mistrial when Ms. Weston, announced within the hearing of the entire venire panel that she knew Defendant was "a drug addict."
On June 24, 2008, the Missouri Court of Appeals affirmed Petitioner's conviction without issuing a formal opinion. The appellate court concluded that the trial court was in the best position to determine the impact of the venire person's statement on the other members of the venire panel and that Ms. Weston's statements were not so inflammatory or prejudicial as to infringe Petitioner's right to fair trial. Resp. Ex. E at 4. The appellate court further held that the trial court's denial of the motion was not so arbitrary and unreasonable as to shock the conscience. Id.
In reaching its conclusions, the Missouri Court of Appeals reviewed other Missouri cases in which a venire person had accused a defendant of prior bad acts within the hearing of the other members of the venire. The appellate court relied upon precedents holding that a single remark by a venire person alleging prior bad acts was insufficient to warrant a mistrial if it was followed by a curative instruction. In addition, the appellate court noted that although the remark at issue was arguably more egregious than those considered in the cited cases, it did not directly implicate Manning with respect to the charged offense of robbery. In addition, the appellate court noted that Manning had not demonstrated that he was prejudiced as a result of the remark. Resp. Ex. E at 6. The appellate court also rejected Manning's argument that the venire person's remark made him appear to be "the sort of person that would snatch a church's cashbox, " and observed that Manning could have requested a less drastic remedy than mistrial such as a curative instruction or dismissal of the venire panel but that he failed to do so. Finally, the Missouri Court of Appeals held that the trial court had not abused its discretion in denying the motion for mistrial.
III. State Post - Conviction Proceedings
In his pro se Rule 29.15 motion for state post-conviction relief Petitioner asserted that counsel was ineffective (1) for failing to argue that the evidence was insufficient to support a conviction for first-degree robbery; (2) for failing to object when the trial judge fell asleep during the testimony of a state's witness; (3) because counsel was distracted by her own legal problems; and (4) for failing to failing to argue that the jury instructions with respect to the first-degree robbery charge were erroneous. Resp. Exh. F. at 8.
In the amended the Rule 29.15 motion filed after the appointment of post-conviction counsel, the four grounds set forth above were not raised. Petitioner raised only one ground - that trial counsel was ineffective for failing to request that the jury be given a lesser included offense ...