United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the amended petition of Missouri state prisoner Vincent McFadden for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury convicted Petitioner of two counts of first-degree assault, two counts of armed criminal action, and one count of unlawful use of a weapon, all arising out of a gang-related shooting in Pine Lawn, St. Louis County, Missouri, on April 4, 2002, in which Petitioner shot into a van with three occupants and wounded one of them, Daryl Bryant. Petitioner was sentenced as a prior offender to a total of 30 years’ imprisonment.
In his petition for habeas relief, as supplemented, Petitioner raises numerous claims, many concerning allegedly improper statements by the prosecutor during opening statement and closing argument, and ineffective assistance of defense counsel for failing to object to those comments. He also asserts that defense counsel was ineffective in other ways, including for pursuing a defense that called attention to Petitioner’s gang affiliation, and for failing to challenge the prosecutor’s peremptory challenge of two African-American venirepersons under Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the Constitution prohibits the state from using peremptory challenges to exclude jurors based on race). Respondent argues that the claims of prosecutorial misconduct were procedurally defaulted, and that the state courts’ adjudication of all of Petitioner’s claims was reasonable. For the reasons set forth below, habeas relief shall be denied.
Trial commenced on December 14, 2004. At the time, Petitioner was awaiting trial for two homicides, including the May 2003 murder of a younger sister of one of the witnesses against Petitioner at his trial in the present case, Nicole Addison. Petitioner, Bryant, Addison and another key witness against Petitioner, Jermaine Burns, are all African-American. Prior to voir dire, defense counsel filed a motion in limine for a court order preventing the State “from utilizing its peremptory strikes in a biased manner to exclude African-American persons . . . from serving on the jury, ” citing Batson. (Resp. Ex. B, at 19-20.) The record does not contain a specific ruling on the motion. The record suggests that the prosecutor used two peremptory challenges to strike two African-American venirepersons. Defense counsel did not object to any of the state’s peremptory strikes.
During opening statement, the prosecutor noted, without objection from defense counsel, that Petitioner was intimidating the entire Pine Lawn neighborhood and that the shooting in question in this case took place near a schoolyard. Defense counsel’s opening statement depicted Petitioner as a neighborhood bully, about whom the witnesses against him were willing to lie in order to effectuate his removal from the neighborhood, noting that Petitioner and Bryant were members of opposing gangs.
The evidence at trial showed the following. At about 5:30 p.m. on April 4, 2002, Addison returned to her home in Pine Lawn after work and saw that Burns and Bryant were in front of her house in a van, with Burns in the driver’s seat and Bryant in the front passenger seat. Another individual, Samuel Simpson, was in the rear seat. Addison knew that Bryant was affiliated with a rival gang in another neighborhood, and asked him to leave because his presence in Pine Lawn would be a problem for members of the Pine Lawn gang. Petitioner, who was a member of the Pine Lawn gang and who was dating one of Addison’s sisters at the time, drove up in a car, walked up to the van holding a large revolver, and said he was going to shoot Bryant. Petitioner asked Burns, with whom he was friends, “what’s this bitch-ass nigger doing on my set?” referring to Bryant and adding that he had been in a shooting incident with Bryant the previous evening. Addison asked everyone to leave, watched Burns’s and Petitioner’s vehicles drive off, went inside her house, and within minutes, heard gunshots. She got into a car with a woman from across the street and they pursued Burns’s van.
When Burns stopped at a stop sign after turning off Addison’s street, Petitioner pulled in front of him, jumped out of his car, ran up the passenger side of the van, and started shooting into the van through the window, shattering the window and hitting Bryant in the hip. Burns immediately drove Bryant to the hospital, where Addison caught up with the van. When she opened the door on the passenger side, Bryant fell on her and she saw his wound. Bryant was treated for the gunshot wound, and the police questioned both Bryant and Burns at the hospital; both implicated Petitioner in the shooting, at the hospital or soon thereafter. Police spoke to Addison the next day and she recounted the events she saw. Two .380 caliber bullets were recovered inside Burns’s van in a position indicating that they entered the van through the passenger side windows. Shell casings were found in the intersection where the shooting occurred.
During defense counsel’s cross-examination of Burns, Burns stated, “Man, that’s fucked up.” When defense counsel asked Burns what he meant, Burns explained that he and Petitioner had been friends until the April 2, 2002 incident, stating, “I have nothing against him over here. I mean – me doing something to him would not bring my little cousin’s life back. I don’t have nothing against him.” The prosecutor interrupted and the questioning ended. (Resp. Ex. A, at 107-08.) The court dismissed the jury for the day and discussed the matter with counsel.
Defense counsel expressed his concern that the jury “may have heard” evidence about the pending murder case against Petitioner which may have inflamed the jury against him, such that “this jury may not be able to proceed with this particular case.” Id. at 122. The prosecutor opined that the jury had not heard anything problematic before he interrupted Burns, and that defense counsel had invited the response by asking Burns to clarify his statement, when defense counsel knew that Petitioner stood accused of killing Burns’s cousin (Addison’s younger sister). The court stated that it did not believe that the jury heard anything prejudicial, and that all the court heard was mention of a cousin. The court did not believe a mistrial was called for, but told defense counsel that it would consider instructing the jury to disregard the comment. Defense counsel did not request such an instruction, and nothing further was mentioned about the comment throughout the remainder of the trial.
Petitioner testified that Burns and Bryant began firing first, firing shots at Petitioner from inside their van as it was driving behind Petitioner’s vehicle, and that he (Petitioner) yelled to a friend named Kyle Dismukes, who was standing in a nearby alley, that he was being shot at, and Dismukes shot into Burns’s van from an alley (about 130 feet away) to protect Petitioner. Dismukes had since been killed. On direct examination, Petitioner testified that he did not tell this story to the police because he did not trust them.
During cross-examination, the prosecutor questioned Petitioner about his gang-related tattoos and had him describe them for the jury. Defense counsel did not object to this line of questioning, nor to the prosecutor’s mention of the tattoos in closing argument. Also during cross-examination, the prosecutor asked Petitioner whether he ever told the police, or asked his attorney to tell the police, his version of events, again with no objection by defense counsel. Petitioner stated that he did not want to talk to the police before he had an attorney, and after he got an attorney, the police did not ask him what happened. (Resp. Ex. A, at 197-98.)
During closing argument, with regard to the veracity of the State’s witnesses, the prosecutor stated:
Now what interest does Darryl Bryant have in lying? He got nothing for this. All he got out of it was a call from me to the Prosecuting Attorney down in the City saying he did testify.
Id. at 216.
Nicole Addison, what’s her motive to lie? If she was going to lie, she would have said, Yeah, I ran around the corner, and I saw it happen. She didn’t say that. She said, He threatened them, they left, I heard noises.
Id. at 221.
The prosecutor also stated as follows:
Everybody in that community is going to know about this verdict, I guarantee you . . . . They told the police that night what happened. And they told you under oath in this courtroom what happened. And if they go through all of that and go back to their neighborhood as snitches, and they get nothing. ...