United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
JOHN A. ROSS UNITED STATES DISTRICT JUDGE
This matter is before the Court on Petitioner Robert Stewart's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Government responded (Doc. 12) and Petitioner replied (Doc. 24). For the following reasons, Petitioner's Section 2254 petition is DENIED and this action is DISMISSED with prejudice.
I. Introduction and Background
On May 4, 2007, a jury found Petitioner guilty of one count of murder in the first degree (Count I), two counts of armed criminal action (Counts II & IV), and one count of assault in the first degree (Count III) (Ex. B at 66-69; Ex. C at 5). The trial court sentenced Petitioner to concurrent terms of life imprisonment without probation or parole (Count I), five years (Counts II & IV), and ten years (Count III) in the custody of the Missouri Department of Corrections (Ex Bat 77-81; Ex. Cat 5).
Petitioner filed a direct appeal raising two claims:
(1) The trial court clearly erred and abused its discretion in failing to grant a mistrial when the prosecutor told prospective jurors during voir dire that "[s]imply because someone gets on the stand and says I did it in self-defense, that's not going to be the end of it"; and
(2) The trial court plainly erred, causing manifest injustice or a miscarriage of justice, in failing to include the paragraph on withdrawal in self-defense instruction number 12.
(Ex. C at 14-15). The Missouri Court of Appeals for the Eastern District, finding no error of law, affirmed the judgment (Ex. E).
On April 28, 2009, Petitioner filed a motion for post-conviction relief (Ex. G at 4-30). On September 9, 2009, with the assistance of counsel, Petitioner filed an Amended Motion (Ex. G at 38-66). Following an evidentiary hearing held on November 13, 2009 (Ex. F), the Circuit Court denied Petitioner's motion on February 24, 2010 (Ex. G at 70- 80). On April 12, 2011, the Missouri Court of Appeals for the Eastern District affirmed the circuit court's denial of the motion (Ex. J).
On December 19, 2011, Petitioner filed the instant Section 2254 petition in which he raises the following eight grounds for relief:
(1) The Trial Court erred when it failed to declare a mistrial during voir dire when the prosecutor made a comment regarding defendant's right not to testify (Doc. 1 at 11 -12);
(2) The Trial Court plainly erred when it failed to include a withdrawal instruction in the self-defense instruction (Doc. 1 at 12);
(3) Trial counsel rendered ineffective assistance of counsel by failing to interview, properly investigate, and subpoena material eyewitness, L.B. (Doc. 1 at 13);
(4) Trial counsel rendered ineffective assistance of counsel by failing to object at trial to instruction number 12, the self-defense instruction on the grounds that it failed to include the withdrawal paragraph (Doc. 1 at 13-14);
(5) Trial counsel rendered ineffective assistance of counsel by failing to submit an instruction on voluntary manslaughter (Doc. 1 at 14);
(6) The Motion Court erred in rejecting Petitioner's claim that trial counsel was ineffective for failing to investigate and call L.B. (Doc. 1 at 14);
(7) The Motion Court erred in rejecting Petitioner's claim that trial counsel was ineffective for failing to object to the lack of a ...