United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JOHN A. ROSS, District Judge.
This matter is before the Court on Petitioner Ricardo Garrett's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Government responded (Doc. 10) and Petitioner replied (Doc. 13). For the following reasons, Petitioner's Section 2254 petition is DENIED and this action is DISMISSED.
I. Introduction and Background
On October 24, 2007, a jury found Petitioner guilty of one count of first-degree robbery (Count I) (Ex. B at 45). The trial court sentenced Petitioner to 30 years on Count I. Petitioner filed a direct appeal raising one claim: The trial court plainly erred in refusing to submit to the jury the lesser-included offense instruction on robbery in the second degree (Ex. C at 9). The Missouri Court of Appeals for the Eastern District, finding no error of law, affirmed the judgment (Ex. E).
On December 1, 2008, Petitioner filed a motion for post-conviction relief (Ex. J at 4-22). On April 14, 2009, with the assistance of counsel, Petitioner filed an Amended Motion (Ex. J at 29-45). Following an evidentiary hearing held on March 24, 2010, the circuit court denied Petitioner's motion on April 27, 2010 (Ex. J at 46-50).
Petitioner appealed the denial, raising two points:
(1) The Motion Court erred when it denied his post-conviction claim for ineffective assistance of counsel because his trial counsel failed to include a claim in his motion for new trial that the trial court erred in denying his request for a lesser included offense instruction; and
(2) The Motion Court erred in denying his post-conviction claim that his appellate counsel was ineffective for failing to appeal the trial court's denial of his motion to suppress evidence.
(Ex. G). On June 21, 2011, the Missouri Court of Appeals for the Eastern District affirmed the circuit court's denial of the motion (Ex. I).
On March 5, 2012, Petitioner filed the instant Section 2254 petition in which he raises the following five grounds for relief:
(1) The trial court plainly erred in refusing to submit to the jury Petitioner's lesserincluded offense instruction on robbery in the second degree (Doc. 1 at 16-17);
(2) Trial counsel was ineffective when they failed to include their request for an instruction on the lesser-included offense of robbery in the second-degree in their motion for new trial, thus waiving appellate review on the appropriateness of the instruction (Doc. 1 at 18-19);
(3) Appellate counsel was ineffective when she failed to appeal that the evidence seized and the statements taken from Petitioner were the result of an illegal arrest and thus should have been suppressed as fruit of the poisonous tree (Doc. 1 at 20-22);
(4) The Prosecutor presented perjured testimony to establish probable cause for the Petitioner's arrest when Officer Mitchell Riggins testified that he observed in "plain view" the keys to the getaway vehicle when, in fact, he had not because ...