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Bryant v. Bowersox

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

March 27, 2015

RUSSELL BRYANT, Petitioner,
v.
MICHAEL S. BOWERSOX, Respondent.

MEMORANDUM AND ORDER

NANNETTE A. BAKER, Magistrate Judge.

This action is before the Court on Petitioner Russell Bryant's Amended Petition for Writ of Habeas Corpus[1] pursuant to 28 U.S.C. § 2254, Petitioner's Motion for Expansion of the Record, and Petitioner's Request for an Evidentiary Hearing. [Docs. 12, 15, 17.] Respondent Michael Bowersox filed a response to the original Petition for Writ of Habeas Corpus. [Doc. 8.] Bryant filed a Reply Brief. [Doc. 16.] The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 9.] For the reasons set forth below, Bryant's petition for writ of habeas corpus and the other pending motions will be denied.

I. Background

After a jury trial, Bryant was convicted of second degree murder, armed criminal action, and attempted stealing. (Resp't Ex. B at 50-53.) Bryant received a life sentence for the second degree murder conviction, one hundred years for the armed criminal action conviction, and four years for the attempted stealing conviction. (Resp't Ex. B at 51-52.) The one hundred year sentence is consecutive to the life sentence. (Resp't Ex. B at 51.) The attempting stealing sentence is concurrent to the other sentences and has already been served. (Resp't Ex. B at 52.)

The following evidence, in the light most favorable to the verdict was presented at trial.[2] On October 14, 2006, shortly after noon, James Feser parked his car on the street near his house. When Feser came out after 4:00 p.m. to leave, his car was missing. Feser called the police about his missing car. On October 15, 2006, at around 6:00 a.m., Andre Cole was driving when another car cut him off. That car then pulled over and stopped at a nearby intersection. Cole observed a little young guy standing at that corner as if he was waiting on a bus.

Two individuals got out of the car- one from the back seat and one from the front seat passenger's side. The front seat passenger approached the young man standing on the corner, and then put his arm around the man standing on the corner. The back seat passenger then started patting down the man standing on the corner, and grabbing at his pockets. At that point, from what Cole observed, it looked like the front seat passenger was choking the man standing on the corner. The man then pushed away and began to run in the direction of Cole's car. The front seat passenger managed to get ahead of the man.

The front seat passenger then pushed the man down and shot him. The front seat passenger then noticed that Cole was present and pointed the gun at Cole. Then, Cole drove off to avoid the chance of being shot. After driving off, Cole looked in his rearview mirror and observed the two individuals getting back into the car and driving off. The police were called to the location of the shooting. The victim died at the scene. Officer Jennifer Dudley went to the crime scene as an evidence technician. While at the crime scene, Officer Dudley located and recovered a shell casing.

Cole described the front seat passenger as tall with popcorn or beady hair. The individual was wearing a red hood and red and gray coat. Cole described the backseat passenger as shorter and having long dreadlocks in his hair. Cole further described the gun as being silver.

The following day, on October 16, 2006, Dr. Kamal Sabharwal performed an autopsy of the victim Ron Thomas. In the exam, Dr. Sabharwal observed a gunshot wound to the abdomen and concluded the gunshot was the cause of death. Dr. Sabharwal also recovered the bullet from the body of the victim.

On October 16, 2006, Officer Richard Long was on patrol and observed a car that matched the description of Feser's car. At some point, the driver of the car got out to assist another individual who appeared to need a jump start. Officer Long and other officers moved in to apprehend the driver of the car. When the officers identified themselves, the driver of the vehicle and the person he was standing with, began to flee. Officer Long went to secure the vehicle and observed a nickel plated semiautomatic handgun on the passenger side of the car. Officer Long took possession of the handgun. As Officer Long was preparing to leave the vehicle, another officer returned with the person who had been driving the vehicle. He was identified as Avrion Jones and was taken into custody.

On October 17, 2006, Detective Jeffrey Stone learned that Feser's car had been recovered the previous night, and that a handgun had been found in it. Because the caliber of the handgun matched the caliber of the bullet used to kill Ron Thomas, and the car was similar in color to the car described by Cole, Detective Stone requested that a comparison be made between the handgun and the bullet recovered from the victim's body.

Officer David Menendez conducted a firearm analysis. Officer Menendez determined that the handgun recovered from the vehicle was the gun used to kill Thomas because the bullet and the shell casing from the test firing matched the bullet recovered from the body of Thomas and the shell casing found at the scene.

On October 17, 2006, Cole was asked to view a physical line-up. Detective Thomas Carroll was in the room with Cole as he viewed the line-up. Cole then identified Avrion Jones as the back seat passenger. Cole later identified Feser's car as the car that had cut him off. On October 18, 2006, Detective Carroll went to the location where Feser's car had been towed. Detective Carroll looked through the car and recovered some items, including several CDs, an empty cigarette pack, and some cigarettes. The cigarette pack was recovered from the front passenger's seat. Detective Carroll contacted Feser about the items, and Feser told Detective Carroll that those items did not belong to him.

On October 23, 2006, Sandra Wood, a latent print examiner, processed some of the items seized from the car for fingerprints. Wood found and recovered a fingerprint from the cigarette pack. The fingerprint matched Bryant's fingerprint. After Bryant was identified as a potential suspect, Cole was asked by Detective Carroll to view a photographic line-up. Cole identified Bryant as the front seat passenger and Ron Thomas' shooter. After Bryant was arrested, Cole viewed a physical line-up and again picked Bryant as the shooter. Cole also identified Bryant as the shooter at the trial.

Before his trial began, Bryant filed a motion to suppress the identifications as unduly suggestive. His motion was denied. Bryant also filed motions for judgment of acquittal at the close of the State's evidence and again at the close of all the evidence, which were also denied by the trial court. After judgment and sentence were entered, Bryant filed a direct appeal, which was denied by the Missouri Court of Appeals. Bryant later filed a post-conviction motion with the trial court and an evidentiary hearing was held. The trial court denied Bryant's post-conviction motion and his appeal of that denial was affirmed by the Missouri Court of Appeals. Bryant then filed the instant petition for writ of habeas corpus.

II. Legal Standard

The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), applies to all petitions for habeas relief filed by state prisoners after this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas review pursuant to § 2254, a federal court is limited to deciding whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a decision that is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceedings." 28 U.S.C. § 2254(d). A determination of a factual issue made by a state court is presumed to be correct unless the petitioner successfully rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

For purposes of § 2254(d)(1), the phrase "clearly established federal law refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "In other words, clearly established federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Id. To obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006).

A state court's decision is "contrary to" clearly established Supreme Court precedent "if the state court either applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the] precedent.'" Penry v. Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). A state court decision is an unreasonable application of' clearly established Supreme Court precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case. Id. (citing Williams, 529 U.S. at 407-408). "A federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was objectively reasonable." Penry, 532 U.S. at 793. "A state court decision involves an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, ' 28 U.S.C. § 2254(d)(2), only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A "readiness to attribute error is inconsistent with the presumption that state courts know and follow the law." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). AEDPA's highly deferential standard demands that state court decisions be given the benefit of the doubt. Id.

III. Discussion

A. Requests for Evidentiary Hearing and to Expand the Record

First, Bryant requests an evidentiary hearing and leave to expand the record. [Docs. 15, 17.] The Respondent has not responded to these motions. Bryant states that he wishes to add "recently obtained new evidence that was not in his possession when [his] claim was raised in the circuit court." Exhibits A, B, C, and D consist of psychological, legal treatise, and law review articles regarding eyewitness identification. [Doc. 15-2.] Exhibit E is a Google maps list of driving directions. [Doc. 15-2.] Exhibit G contains pictures that are unclear, but are identified by Bryant as crime scene photographs. [Doc. 15-2.] Exhibit H includes what appear to be pictures of a line-up. [Doc. 15-2.] Exhibits I and K are letters from Bryant's former attorney Andrew Zliet to Bryant and the Court. [Doc. 15-2.] Exhibit L is the circuit court's Order regarding post-conviction proceedings. [Doc. 15-2.] There do not appear to be any exhibits labeled Exhibits F, J, M, N, O, T, Q, R, or S as listed in Bryant's Reply Brief.

"If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition." Rule 7(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The judge may require that the materials be authenticated. Rule 7(b) of the Rules Governing Section 2254 Cases in the United States District Courts. "When a petitioner seeks to introduce evidence pursuant to this rule, the conditions ...


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