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Hunter v. Cassady

United States District Court, E.D. Missouri, Eastern Division

March 24, 2015

CLOVIS HUNTER, Petitioner,
v.
JAY CASSADY, the Warden of the Jefferson City Correctional Center, and CHRIS KOSTER, the Attorney General of the State of Missouri, Respondents.[1]

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, Magistrate Judge.

This matter is before the Court for review and final disposition of a petition for writ of habeas corpus filed by Clovis Hunter ("Petitioner") pursuant to 28 U.S.C. § 2254 to challenge a 2002 judgment following a non-jury trial.[2] Respondents filed a response [Doc. 9] to the petition, including materials from the underlying state court proceedings [Docs. 10 and 16].[3]

Petitioner presents four grounds for relief in his petition: that his confession was coerced, that the evidence and description of the suspect did not describe Petitioner, that his trial attorney provided ineffective assistance of counsel, and that he was deprived of his right to testify.

After careful consideration, the Court will deny the petition upon finding that the first three grounds are procedurally defaulted and Petitioner has failed to demonstrate cause and prejudice or actual innocence so as to permit consideration of the merits of those grounds; and upon concluding that the fourth ground lacks merit.

Background

Petitioner was charged with one count each of attempted forcible rape in violation of Mo. Rev. Stat. § 564.011, attempted second-degree robbery in violation of Mo. Rev. Stat. § 564.011, and first-degree burglary in violation of Mo. Rev. Stat. § 569.160, for an incident involving a woman the Court will refer to by her initials, E.T., on October 26, 1999. Counts I, II, and III, respectively, of the Second Am. Information, filed June 17, 2002, Legal File, Resp'ts Ex. A, at 92-93. Petitioner was also charged with one count each of forcible rape in violation of Mo. Rev. Stat. § 566.030, armed criminal action in violation of Mo. Rev. Stat. § 571.015, and first-degree burglary in violation of Mo. Rev. Stat. § 569.160 for an incident involving a woman the Court will refer to by her initials, C.S., on September 23, 1999. Counts IV, V, and VI, respectively, of the Second Am. Information, filed June 17, 2002, Legal File, Resp'ts Ex. A, at 93-94.

During the five-day trial to the court sitting without a jury in June 2002, the State presented fifteen witnesses including E.T.; C.S. and her mother and teen-aged daughter, who were living with C.S. in September 1999; the doctors who examined C.S. and E.T. shortly after the incidents at issue in this case; and numerous police officers with the St. Louis Metropolitan Police Department who investigated the incidents, including Akil Smith and Michael Mayo who were partners investigating the offense involving E.T. See Trial Tr. Resp'ts Ex. I. In relevant part Officer Smith testified to a canine search of E.T.'s home on October 26, 1999 after learning from E.T. that a person was inside her home; the dog's indication that a person was in a first floor closet near the kitchen; Officer Smith's view of a leg in that closet; the dog's three approaches to the person in the closet; the person's (Petitioner's) exit from the closet and resisting of arrest by Officer Smith; and Officer Smith getting Petitioner to the ground during a struggle which resulted in Officer Smith's tie and name plate ending up on the floor rather than staying on his shirt. Id. at 541-70. After Officer Smith got Petitioner under control, he gave Petitioner his Miranda rights, and Petitioner apologized and said his friends left him there. Id. at 570-72, 574-76. After Petitioner was handcuffed and in the process of being taken to the EMS transfer van, which is used when a suspect resists arrest and when a dog is involved, id. at 575-76 and 582, Petitioner stated that he "burglarized the residence looking for cash and jewelry. When he couldn't find anything and [E.T.] returned shortly after he got in there, he decided to rob her thinking she probably had some more money on her than he found in the home." Id. at 576-77, 581. Petitioner also stated that he got in E.T.'s home "through the rear basement doorway [that] was unlocked." Id.

Officer Mayo, who was at the scene with Officer Smith, testified to what he observed at E.T.'s home, essentially agreeing with Officer Smith's testimony about the dog stopping at the closet, the dog attempting several times to get the person out of the closet, and the physical altercation between Petitioner and Officer Smith as Petitioner resisted arrest. Id. at 650-64. Officer Mayo also stated that, after Petitioner was read his Miranda rights, Petitioner "apologized and said his friends left him in the house." Id. at 663.

Both Officer Smith and Officer Mayo stated that a few pieces of E.T.'s jewelry were found in the pocket of pants Petitioner was wearing at the time of his arrest. Id. at 575, 664.

Marc Johnson, who lived next door to E.T. at the time of this incident, and Christopher Chaney, were also charged with respect to the incident involving E.T. They each testified to their and Petitioner's conversations and actions regarding the incident, and stated that, in exchange for their truthful testimony against Petitioner and their guilty pleas to the burglary charges they would receive probation as the sentence on the burglary conviction, while the related rape and robbery charges would be dismissed. Id. at 737-82; 782-823.

The State also read from the medical report of Petitioner's condition on October 26, 1999, after leaving E.T.'s home, which stated he was "fit for confinement" in that he was "alert, awake and oriented"; and he had three dog bites and a laceration on an eyebrow but no "loss of consciousness, " "no active bleeding, " and "no obvious fracture." Id. at 737.

Mary Beth Karr, a criminalist with the St. Louis Metropolitan Police Department Crime Laboratory who performed DNA analysis on garden gloves allegedly worn by the perpetrator during the incident involving C.S., testified that Petitioner was the major contributor to the DNA found on those gloves. Id. at 709-11. Additionally, Petitioner's videotaped statement regarding the incident involving C.S. was played during trial. See, e.g., id. at 313.

Petitioner did not testify and presented the testimony of Javoris Mitchell, a friend of Petitioner who testified that he was with Petitioner the evening of September 23, 1999, and visited the scene after learning Petitioner was arrested on October 26, 1999. Id. at 886-917. Petitioner also presented the testimony of his mother, Katrina White. Id. at 917-51.

The trial court denied in part and granted in part Petitioner's motion to suppress, id. at 973-78; found Petitioner guilty of the charged offenses, id. at 1015-16; and sentenced Petitioner to a term of imprisonment totaling twenty-seven years, id. at 1049-50, Sentence and J., filed Aug. 23, 2002, Legal File, Resp'ts Ex. A, at 134-38. More specifically, the trial court sentenced Petitioner to terms of imprisonment of fourteen years for the attempted forcible rape conviction, two years for the attempted second-degree robbery conviction, and eight years for the first-degree burglary conviction for the offenses involving E.T., with those sentences running consecutively to each other and concurrently with the sentences imposed on the three convictions for the offenses involving C.S. Id . The trial court also sentenced Petitioner to terms of imprisonment of fourteen years for the forcible rape conviction, five years for the armed criminal action conviction, and eight years for the first-degree burglary conviction for the offenses involving C.S., with those sentences running consecutively to each other and concurrently with the sentences imposed on the three convictions for the offenses involving E.T. Id.

Petitioner presented one point in his direct appeal. Pet'r Br., Resp't Ex. B, at 9, 10. Petitioner argued that his rights to due process, freedom from self-incrimination, and a fair trial under the Fifth, Sixth, and Fourteenth Amendments were violated by the trial court's overruling of Petitioner's motion to suppress statements and the trial court's admission, over objection, of Petitioner's statements to Officer Akil Smith that were made upon Petitioner's arrest. In particular, Petitioner contended, that his waiver of his Miranda rights was not knowing and intelligent and his statements were involuntary and coerced because they were made "moments after [Petitioner] suffer[ed] dog bites and blows to the head." Id.

The Missouri Court of Appeals for the Eastern District affirmed the conviction and sentence in a summary order, supplemented by a memorandum sent only to the parties setting forth the reasons for the decision. Per Curiam Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Nov. 25, 2003, Resp't Ex. D. In its decision, the state appellate court found:

[Petitioner] argues that he was unable to validly waive his Miranda rights due to physical injuries incurred while resisting arrest. When viewing the facts in the light most favorable to the verdict, it appears that when police responded to [E.T.]'s home, [Petitioner] was hiding in her closet. Police were unsure of whether he was armed. A canine unit was used in an effort to remove him from the closet. He emerged from the closet after the dog's third attempt to remove him. When he came out of the closet, he swung at Officer Smith and tried to take the officer's gun. A struggle ensued during which [Petitioner] again attempted to remove Smith's gun and struck or attempted to strike him. Smith struck [Petitioner] in the face and struck him on the arm with his flashlight. Ultimately, Smith was able to gain control over [Petitioner] by kicking his feet out from under him, causing him to fall to the floor. During the struggle, Smith's nameplate and tie were torn off of his uniform. Smith handcuffed [Petitioner], patted him down and read him his rights. Smith testified that [Petitioner] appeared to understand his rights. When asked whether he understood, [Petitioner] stated "yeah" or "uh-huh" and nodded. [Petitioner] then made several statements, some of which were spontaneous and others were in response to Smith's questions. [Petitioner] characterizes this as a "vague waiver."
The trial court did not issue findings, but we may infer from its denial of the motion to suppress that it found the testimon[y] of Officers Smith and Mayo credible. We find that the record supports the conclusion that [Petitioner] was read his rights and understood them. The state met its burden with the officers' testimony. Furthermore, the record is devoid of evidence indicating that coercion or force was used to obtain the statements. [Petitioner] presented no evidence suggesting that he was not capable of understanding his rights.
Next we address whether the waiver was rendered invalid by injuries [Petitioner] suffered. Initially we note that constitutional protection is afforded to individuals who suffer injustices as a result of state action. See generally Colorado v. Connelly, 479 U.S. 157 (1986). [Petitioner]'s minor injuries were not directly caused by state action, rather, he initiated a struggle with police while resisting arrest. He argues that the pain and disorientation he suffered as a result of his resisting arrest prohibited him from validly waiving his rights.
The injuries [Petitioner] suffered at the hands of Officer Smith were in self-defense, not the result of a calculated effort to elicit information from him. Further, when [Petitioner] was taken to the hospital, immediately following his arrest, he was "alert, awake[, ] and oriented." The medical records indicated that he had not lost consciousness, was not bleeding, and had no medical problems at that time. Even if we were convinced that [Petitioner] was confused and disoriented following his arrest, which we are not, his post-arrest condition would not be sufficient to invalidate his waiver. Evidence that a defendant is surprised or emotional when arrested is not sufficient to render a confession involuntary. State v. Fakes, 51 S.W.3d 24 (Mo. [Ct.] App. 2001). Neither will disorientation or confusion at the time of the alleged waiver per se cause exclusion of inculpatory statements. [State v. ]Clarkston, 963 S.W.2d [705, ] 716 [(Mo.Ct.App. 1998)]. Similarly, we hold that disorientation or confusion caused by injuries sustained while resisting arrest is not sufficient to render a waiver invalid. It is well-settled that a "defendant does not have the constitutional right to confess his crime only when totally rational and properly motivated." [State v. ]Knese, 985 S.W.2d [759, ] 766 [(Mo. 1999) (en banc)] (internal citations omitted).
Finally, regardless of the court's overruling [Petitioner]'s motion to suppress the statements he made after his arrest for the crimes committed against [E.T.], there was sufficient evidence otherwise to convict him. Namely, he was apprehended in her home right after she escaped his custody, her possessions were found when he was searched incident to arrest, and his friends testified against him regarding his plans to burglarize her home and take her possessions. The court's decision was not clearly erroneous.

Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), dated Nov. 25, 2003, Resp't Ex. D, at 3-5 (twenty-first alteration in original). The Missouri Court of Appeals issued its mandate in Petitioner's direct appeal on December 22, 2003. See docket sheet for State v. Hunter, No. ED81736 (Mo.Ct.App. filed Sept. 3, 2002) (docket sheet available at https://www.courts.mo.gov/casenet/cases/searchDockets.do) (last visited Mar. 11, 2015). Petitioner did not seek further review by higher courts. See id.

Petitioner then filed a pro se post-conviction motion, setting forth three claims for relief, that his trial attorney "did not call all [his] witnesses concerning [his] whereabouts during the supposed crime"; that C.S. gave conflicting statements regarding the time of the attack, the weapons used, and the build of the attacker; and that E.T. described an attacker who did not fit Petitioner but did fit his co-defendant. Pet'r Pro Se Post-Conviction Mot., Legal File, Resp'ts Ex. E, at 4-9. By an amended motion filed by Petitioner's appointed attorney, Petitioner set forth two claims that his trial attorney provided ineffective assistance of counsel, and requested an evidentiary hearing. Pet'r Am. Post-Conviction Mot., Legal File, Resp'ts Ex. E, at 14-27. First, Petitioner argued that his trial attorney failed to advise him that it was "his ultimate decision whether to take the witness stand in his own defense." Id. at 16. Petitioner also urged that his trial attorney advised him to waive a jury and have a bench trial before the trial court heard and resolved his motions to suppress statements and to suppress evidence, and before the attorney knew what evidence would be admitted at trial. Id.

A judge other than the judge who had presided over Petitioner's criminal trial proceedings presided over Petitioner's post-conviction motion proceedings. After a two-day evidentiary hearing at which Petitioner's trial attorney and Petitioner testified, the post-conviction motion court denied Petitioner's motion. See Findings of Fact, Conclusions of Law, and Order, filed Apr. 13, 2010, Legal File, Resp'ts Ex. E, at 31-41; Evidentiary Hr'g Tr., Resp'ts Ex. J. With respect to the claim that ...


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