United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
TERRY I. ADELMAN, UNITED STATES MAGISTRATE JUDGE.
This matter is before the Court on the pro se petition of Missouri state prisoner Dennis Russell, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the Southeast Correctional Center located in Charleston, Missouri pursuant to the sentence and judgment of the Circuit Court of the City of St. Louis, Missouri. A jury found Petitioner guilty of the following offenses: attempted forcible rape for which he was sentenced to ten years imprisonment; kidnapping for which he was sentenced to ten years imprisonment; and two counts of domestic assault in the second degree by choking or strangling for which he was sentenced to ten years and five years, respectively.
Petitioner was sentenced as a prior persistent offender. The sentences for forcible rape, kidnapping and the first count of domestic assault run consecutively. The sentence for the second count of domestic assault is to be served concurrently with the sentences for kidnapping and the first domestic assault count offense, but consecutively to the sentence for forcible rape.
Seeking federal habeas relief, Petitioner now raises the following groundsfor relief: (1) that trial counsel was ineffective because she prevented Petitioner from testifying on his own behalf; (2) that trial counsel was ineffective for failing to object to the prosecutor’s statements in opening and closing argument that (a) Petitioner ripped or tore off the victim’s clothes; (b) improperly consolidated the charge of attempted forcible rape with the charges of domestic assault by asserting that not only attempted forcible rape but also the acts of domestic assault demonstrated forcible compulsion; (3) that trial counsel was ineffective for failing to adequately impeach the roommate of the victim with prior inconsistent statements regarding: (a) how and when Petitioner choked her, (b) how Petitioner took her clothes and when he did so in relation to the time of the attempted rape, and (c) whether S.M. believed that she would be arrested if she did not testify. Respondent contends that Ground One fails on the merits and that Grounds Two and Three are procedurally barred.
Upon review of the parties’ briefs, the opinions of the reviewing Missouri courts, and the transcripts and exhibits on file and for the reasons set forth below, the Court concludes that Petitioner’s request for federal habeas relief be denied.
I. Background and Trial
Exhibit A, the trial transcript, reflects the following relevant testimony, evidence and argument during trial.
The victim, S. M., met Petitioner through a friend and at a time when she was having problems with her boyfriend. S. M and Petitioner dated for approximately four months during which time the relationship became sexual. Thereafter, S.M. and her boyfriend resolved their difficulties and S.M. tried to gradually end her relationship with Petitioner. On November 10, 2004, at approximately 8:00 p.m., Petitioner picked S.M. up at her home, where she lived with her roommate, C.B. Petitioner and S.M. went to Petitioner’s home where they talked and listened to the radio. Around 10:00 p.m., S.M. asked Petitioner to take her back home but Petitioner refused. S.M. then stated that she would call somebody to pick her up, but Petitioner refused to let her use the phone. S.M. then tried to leave to catch the bus, but Petitioner grabbed her by the back of her hair, threw her on the bed and began to choke her. S.M. tried to fight back and to remove Petitioner’s hands from her neck. While this struggle was taking place, Petitioner told S.M. that she was not going to leave and that she needed to lie down. When S.M. lay down and stopped resisting, Petitioner stopped choking her.
After a period of time, Petitioner started to fall asleep. When S.M saw that Petitioner was asleep, she tried to get up and leave, but her movements awakened Petitioner who threw her back on the bed and resumed choking her. During this second round of choking, whenever S.M. stopped struggling, Petitioner would stop choking her, but if she then tried to get up and leave, Petitioner would begin choking her again. At one point, when S.M. tried to get up, Petitioner removed some of her clothes and left the room with them. Minutes later, Petitioner returned and resumed trying to hold S.M. down. S.M. continued to struggle, Petitioner grabbed her and, knowing that S.M. was afraid of dogs, took her outside where he kept his dog and he held S.M. so that his dog could jump on her. Petitioner then asked S.M. if she would now lie down as he had asked; she agreed to lie down and they went back inside.
Petitioner then got on top of S.M. and tried to insert his penis into her. S.M. said, “No” and tried to move away. Petitioner then told S.M. in effect that she “did not get to tell him no” and continued to try to force S.M. to have sex with him. At some point, Petitioner gave up trying to force S.M. to have sex with him and fell asleep. S.M. then found her clothes, left Petitioner’s house, and knocked on the door of the house next door to ask for help. Before anyone could answer, S.M. saw Petitioner emerge from his house and she began to run. Petitioner chased S.M., caught her, and threw her into his car. As Petitioner was getting into the car, S.M. tried to flee, but Petitioner caught her again. Petitioner then held S.M. down as he entered the car and continued to hold her down as he began to drive. As he drove, Petitioner made comments to the effect that he would not have had to do what he had done if S.M. had just done what he told her to do. He also stated that he was going to kill her if she insisted on reporting to the police what he had done. Petitioner drove to S.M.’s home and as S.M. left the car Petitioner again threatened to kill her if she went to the police.
C.B. was awake when S.M. got home and C.B. observed that S.M. was shaken and crying. C.B. testified that she observed scratch marks on S.M.’s neck. S.M. entered C.B.’s room, and asked C.B. to call the police. C.B. did so, and while they waited for the police, S.M. told C.B. what had happened. In particular, S.M. told C.B. that Petitioner had been “forcing himself” on her, that Petitioner had grabbed her by the neck, held her down, tried to take off her clothes, and that her underwear had been ripped.
Officer Henry Hayden, one of the officers dispatched to S.M.’s home on the night of the incident, noted that on his arrival S.M. was crying and appeared to be frightened. Officer Hayden did not observe any injuries, but S.M. told Officer Hayden that her neck was sore and that she had been choked. At Officer Hayden’s request, S.M. recounted that she had gone with Petitioner to his house, that Petitioner refused to take her home when she asked and that Petitioner began to choke her when she tried to leave. Officer Hayden also recalled that S.M. told him that Petitioner had threatened to kill her if she reported the incident to the police. Although S.M. believed that she also mentioned the attempted rape and the incident with the dog in her statement to Officer Hayden, he did not recall these matters.
C.B. testified that over the next several days she observed that S.M. had bruising. After S.M. made her report to the police, Petitioner called S.M. to complain about the police coming to talk with him. Petitioner continued to call S.M. for approximately one month thereafter, threatening to kill her if she did not drop the charges. In the telephone calls Petitioner repeatedly stated that he would not have had to do what he did if S.M. had just obeyed him. Petitioner and S.M. met on one occasion after the incident to discuss what had happened. Petitioner apologized for what he had done but when S.M. stated that she did not know if she was going to drop the charges, Petitioner again cited S.M.’s failure to obey him as the justification for his actions.
During direct examination at trial, S.M. testified that Petitioner attempted to rape her and tried to choke multiple times. On cross-examination, Petitioner’s counsel asked S.M. whether she had told the police about the attempted rape and that there had been more than one incident of choking. Petitioner’s counsel also asked S.M. whether she had mentioned “attempted rape” at any point prior to her meeting with the prosecuting attorney, six months after she filed the police report.
During C.B.’s direct examination the prosecutor asked her about statements made by S.M. on the night of the rape. Petitioner’s counsel objected that the statements were inadmissible hearsay, but the trial court admitted them as prior consistent statements. C.B. then testified that the victim told her that Petitioner forced himself on her, grabbing her by the neck, pinning her down, trying to take off her clothes and ripping her undergarments.
On cross examination at trial, S.M. testified that on the evening of the incident she voluntarily accompanied Petitioner to his house and remained there for the first two hours after they arrived. See Exh. A. at 170-72. S.M. also testified on cross examination that she had previously had sex with petitioner and that her other boyfriend did not know about her relationship with Petitioner. Id. at 172. Trial counsel also established on cross examination that in her statement to the police, S.M. told the police that she had been choked but did not describe separate incidents of choking. See id. at 175. Trial counsel also suggested on cross-examination that S.M. had not told the police bout the dog, but S.M. claimed that she had. See id. at 176. In addition, in response to a question suggesting that she had not done so, S.M. insisted that she had told the police about the attempted rape. See id. at 176-77. When asked about where she found her clothes, S.M. denied telling the police that she found the clothes on a chair in the kitchen but acknowledged that during her deposition she testified that she had found the clothes in a cabinet. See id. at 176. On cross-examination S.M. acknowledged that Petitioner drove her back to her home after the alleged incident and that she did not need medical attention on the day of this incident. See id. at 178-179. However, S.M. denied trial counsel’s suggestion, that S.M. had sex with Petitioner on a several occasions after the incident. See id. at 179.
On cross-examination trial counsel asked Officer Hayden whether S.M. had told him several details that she mentioned in her testimony. See id. at 191-92, 194. Officer Hayden stated that S.M. did not tell him anything about an attempted rape, that he did not remember S.M. mentioning anything about a dog and that S.M. had told him that she found her clothes on a chair. See id. at 191-92. Officer Hayden also testified that, from what S.M. had told him, he believed that there was only one choking incident during the encounter. See id. at 194. Petitioner’s counsel also asked Officer Hayden several questions about whether S.M. had reported the attempted rape and whether she had reported the choking as a single, continuous incident or as two separate incidents.
After the close of the State’s evidence, Petitioner’s counsel rested without presenting evidence or testimony. Immediately thereafter, the judge dismissed the jury for a lunch recess. After the jury had left the courtroom, the judge briefly spoke with Petitioner and inquired whether Petitioner understood that it was his decision whether or not to testify on his own behalf. Petitioner responded that unless he testified “the truth won’t prevail” but that he “dreaded” testifying. Exh A at 209. The judge then told Petitioner that if he wanted to testify he needed to so notify the court when they reconvened. Id. at 210. The judge then held an instruction conference and took evidence of Petitioner’s prior offenses for the purpose of determining whether he was a persistent offender. After the instruction conference concluded, the prosecutor asked whether there would be a hearing on the issue of Petitioner’s decision to testify. Id. at 220. The judge then said that because Petitioner had not stated, after the conclusion of the initial discussion on the issue, that he wanted to testify, the judge would assume the Petitioner did not want to testify. Id. at 220-21. Petitioner was present with counsel in the courtroom at this time and said nothing to his counsel or to the judge.
II. Direct Appeal
On direct appeal, Petitioner argued that the trial court abused its discretion by overruling trial counsel’s hearsay objection to C.B.’s testimony with respect to statements S.M. made to her on the night of the crime. Petitioner argued that this testimony was hearsay and failed to fit any exception to the hearsay rule. Petitioner further asserted that the testimony constituted improper bolstering because it served only to repeat S.M.’s version of the events.
On April 15, 2008, the Missouri Court of Appeals for the Eastern District of Missouri affirmed Petitioner’s conviction without issuing a formal opinion. Relying on Missouri law, the appellate court concluded that C.B.’s testimony was properly admitted under the prior consistent statement exception to the hearsay rules. Quoting State v. Ramsey, 864 S.W.2d 320, 329 (Mo. 1983), the court reasoned that C.B.’s testimony was admissible “for the purpose of rehabilitating a witness [“the victim”] whose credibility has been attacked by an express or implied claim of recent fabrication of trial testimony.” In reaching its conclusion, the Missouri Court of Appeals reviewed the Missouri case law relating to the admission of prior consistent statements or requiring the exclusion of such statements as duplicative bolstering. Noting that ‘“if the prior statement is relevant for purposes other than corroboration and duplication of trial testimony, it is not improper bolstering.”’ Exh. E at 3 (quoting Ramsey, 864 S.W.2d at 329), the appellate court noted that on cross examination, defense counsel implied that the victim had not mentioned “attempted rape” to the police on the night of the incident and that six months after the incident, she had fabricated the attempted rape allegations in response to suggestive questioning by the circuit attorney. The appellate court concluded that in light of this attack on S.M.’s credibility, C.B.’s testimony was properly admitted for the purpose of rehabilitating e S.M.’s credibility. In light of the attack on the victim’s credibility the court concluded that the statements admitted were neither duplicative nor unduly bolstering.
III. State Post-Conviction Proceedings
A. The Rule 29.15 Motion
In his pro se Rule 29.15 motion for state post-conviction relief Petitioner asserted nineteen claims. After the appointment of post-conviction counsel, Petitioner filed an amended the Rule 29.15 motion and requested an evidentiary hearing. In the amended petition, post-conviction counsel asserted the following grounds: (1) that trial counsel was ineffective for failing to seek a bill of particulars to distinguish between the two second-degree domestic assault charges set forth in Counts III and IV of the indictment; (2) that trial counsel was ineffective in failing to impeach the victim with prior inconsistent statements regarding: a) whether Petitioner’s dog actually jumped on her, and b) delay in reporting the attempted rape; (3) that trial counsel was ineffective for informing the trial judge that Petitioner did not want to testify when Petitioner informed counsel, orally and in writing, that he wanted to testify, thus depriving Petitioner of his rights under the Fifth, Sixth and Fourteenth Amendments; (4) that trial counsel was ineffective for failing to inform Petitioner of any plea offers extended by the prosecutor, and for failing to seek a continuance or a plea agreement; (5) that trial counsel was ineffective for failing, in opening statement and closing argument, to object to the prosecutor’s references to matters not in evidence; (6) that trial counsel was ineffective in failing to call as a witness at trial in support of Petitioner’s alibi, Carrie Skinner, an endorsed defense witness; (7) that trial counsel was ineffective for failing investigate and call Larry Raven as an alibi witness; (8) that appellate counsel was ineffective in failing to raise as error the trial court’s acceptance of the jury verdict and imposition of sentence with respect to Count II, the kidnapping charge, because Petitioner’s sentence for kidnapping constituted double jeopardy; (9) that appellate counsel was ineffective in failing to brief and argue a claim that there was insufficient evidence to support Petitioner’s convictions; and (10) that the trial court lacked jurisdiction to sentence Petitioner as a prior and persistent offender, because those allegations were not proved by way of certified copies of court files prior to submission of the case to the jury.
The motion court granted the request for and held a limited evidentiary hearing at which Petitioner’s trial counsel and others testified. In addition, the motion court permitted Petitioner to submit deposition testimony. The pertinent testimony from the hearing and deposition is set forth here.
At the post-conviction relief (PCR) hearing, Ms. Hermann, Petitioner’s trial counsel, testified that prior to trial, Petitioner was adamant that he did not wish to plead guilty but insisted on going to trial. Ms. Hermann further testified that there were no plea negotiations at any time prior to trial and that she had never obtained a plea offer from the State. Petitioner withdrew this ground for relief at the hearing and it was dismissed.
Trial counsel also testified that, prior to trial she had discussed with Petitioner whether Petitioner should testify. Trial counsel advised Petitioner that it was not in his best interest to testify, but made it clear that it was Petitioner’s decision to make. Trial counsel testified that Petitioner initially agreed with her advice to refrain from testifying but that there were points during trial when Petitioner indicated that he “might” want to testify. Trial counsel recalled that at various point s during the trial, particularly during the testimony of other witnesses, Petitioner passed notes to her in which Petitioner stated that he believed there was a “need” for him to testify. See Exh. F, at 18-24; Exh. G, at 106-08. Trial counsel recalled that one of the notes was written during S.M.’s testimony and that another of the notes was written after closing argument as the jury was leaving the courtroom to deliberate. See Exh. F, at 22-23, 24 & 41; Exh. G, at 107-108.
Trial counsel next testified that during the lunch recess which occurred after S.M.’s testimony, after the State had rested and after the trial court had initially asked Petitioner whether or not he wished to testify, she had the opportunity to talk further with Petitioner regarding the question of whether he should testify. See Exh. F, at 37-40. During this discussion, trial counsel again emphasized that although it was Petitioner’s decision to make, she continued to believe that it was not in his interest to testify. See Id. at 38. At the end of this discussion, Petitioner told trial counsel that he did not want to testify. See Id. at 39. According to trial counsel, when, after the lunch recess, the court inquired of her about Petitioner’s decision, Petitioner was present and did not respond to her representation to the court that Petitioner was content with submitting the case as it stood. Exhibit F, at 39-40.
At the close of the PCR hearing, the record was kept open for the submission of Petitioner’s deposition testimony. See id. at 46. In his first deposition, Petitioner claimed that he consistently told trial counsel that he wanted to testify – both before and during the trial. Exh. G, at 119-22. According to Petitioner, while S.M. was testifying he wrote the first and second notes, Hearing Exhs. A & B, to counsel indicating that he might need to testify. Id. at 122, 124, 146, 147. He testified that he wrote a third note to counsel as the jury was being seated after the after the lunch recess before the reading of instructions and closing arguments. Id. at 125-26, 148. Petitioner testified that in the third note he asked counsel asked if there was a way to tell the judge that he wanted to testify. Id. at 148. Petitioner claimed that he held this note up to get the bailiff’s ...