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Rulo v. Cassady

United States District Court, W.D. Missouri, Western Division

April 17, 2015

DANIEL EDWARD RULO, Petitioner,
v.
JAY CASSADY, Respondent.

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

GARY A. FENNER, District Judge.

Petitioner, Daniel Rulo, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on May 8, 2014, seeking to challenge his 2008 convictions and sentences for first-degree robbery and tampering with a motor vehicle, [1] which were entered in the Circuit Court of Boone County, Missouri.

The petition raises thirty-one (31) Grounds for relief. For the sake of clarity, this Court will adopt the respondent's categorization of the claims, which is sorted by actor. In Ground 1, petitioner asserts that direct appeal counsel was ineffective for failing to: (a) raise the issue of sufficiency of the evidence of robbery; (b) contact petitioner to see if there were more grounds petitioner wanted to have included in the brief; (c) appeal the robbery or tampering convictions; (d) react to the state filing out of time after the notice of appeal; and (e) file a complete copy of the legal file with the appellate court. In Ground 2, petitioner asserts that trial counsel was ineffective for: (a) failing to raise the issue of sufficiency of the evidence of robbery; (b) failing to inquire of two venire members whether they knew petitioner's wife under another name; (c) failing to arrange for petitioner to plead guilty to the state's ten year offer; (d) failing to call Lauren Leavell as a witness at trial; (e) failing to cross-examine the state's witnesses; (f) failing to interview the state's witnesses; (g) telling jurors petitioner was "at fault, and not good people"; (h) failing to let petitioner look at the jury list; (i) failing to ask in voir dire if anyone knew petitioner under another name; (j) failing to supply petitioner with a notepad; (k) failing to spend time with petitioner before trial; (l) telling petitioner he would have to lie about not wanting witnesses at trial or risk losing; (m) failing to depose witnesses; (n) failing to subpoena witnesses from out of state; (o) failing to allow petitioner to enter into an open plea; (p) resetting the trial date over petitioner's objection; (q) failing to communicate with petitioner about how long trial would last; (r) failing to make any objections; (s) failing to include a jury instruction on second-degree robbery; (t) being biased because he knew the victim; and (u) failing to object to surprise exhibits. In Ground 3, petitioner asserts that the motion court erred in denying petitioner the ability to represent himself in his post-conviction proceedings. In Ground 4, petitioner asserts that the trial court erred in: (a) overruling the motion for acquittal; (b) letting petitioner be charged with first-degree robbery; (c) overruling the motion for new trial; and (d) overruling petitioner's request for access to the law library. (Doc. No. 1, pp. 15-18).

Respondent contends that Ground 3 is not cognizable for federal habeas review. Further, respondent contends that Ground 1(a) is meritless and that Grounds 1(b)-1(e), 2, and 4 are procedurally barred and, alternatively, are also meritless.

FACTUAL BACKGROUND

The Missouri Court of Appeals summarized the facts as follows:

On October 20, 2006, Tony and Marie Sloan parked their vehicle in a parking garage on the campus of the University of Missouri. Scott Rampy, his wife, his daughter, and his daughter's boyfriend, Blake Bornkessel, also parked in the same garage near the Sloans' vehicle. At approximately 8:45 p.m., the Rampy's and Bornkessel returned to the parking garage. When they walked to the Rampy's vehicle, Bornkessel saw that there was a blue Ford Taurus parked perpendicular to their vehicle. Suddenly, [petitioner] ran out from between two vehicles clutching something and got into the passenger side of the Taurus. Rampy yelled out that "they took something" and "stop them." In response, Bornkessel chased after the Taurus. Bornkessel got in front of the Taurus in an effort to stop them. The Taurus gradually pushed Bornkessel into the intersection and then backed up and swerved around Bornkessel. Bornkessel could see that an older woman was driving the Taurus. Bornkessel caught up to the Taurus and stood in front of it again. This time the Taurus accelerated, forcing Bornkessel to jump on the hood. The Taurus continued accelerating with Bornkessel on the hood through campus. Eventually, Rampy caught up to the Taurus and was able to get other vehicles to block-in [petitioner's] vehicle to keep it from moving. Bornkessel got off the hood, but the Taurus then drove into oncoming traffic, over a sidewalk, and through a lawn.
University of Missouri Police Lieutenant Dennis Stroer arrived to the scene in time to see the Taurus driving on the sidewalk. Lieutenant Stroer stopped the vehicle and made contact with [petitioner]. [Petitioner] stated that he told his wife, the driver, "to get out of there" because "people were acting crazy." Both [petitioner] and his wife were placed under arrest. Bornkessel identified them as the people he chased from the parking garage. In [petitioner's] vehicle, police officers found Marie Sloan's purse, two small hammers, a glass of punch, and a Slim Jim.
University of Missouri Police Officer Brian Frey responded to the parking garage and found that the front passenger window of the Sloans' vehicle had been broken out. When the Sloans returned to the parking garage they identified their vehicle, and Marie Sloan reported to Officer Frey that her purse had been stolen from the vehicle.
[Petitioner] was charged with acting in concert to commit the crimes of tampering in the first degree, robbery in the first degree, and careless and imprudent driving.

(Doc. No. 9, Respondent's Exhibit E, p. 2-3).

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254 (e)(1).[2] Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

PROCEDURAL DEFAULT

Respondent contends that Grounds 1(b)-1(e), 2, and 4 are procedurally barred and, alternatively, are meritless. Petitioner did not raise any of his claims on direct appeal. Petitioner raised Ground 2(a)-(u) in his amended motion for post-conviction relief, however he failed to raise those claims in the appeal from the denial thereof. Petitioner did raise Grounds 1(a) and 3 in his appeal from the denial of postconviction relief, however, he procedurally defaulted all other grounds. Petitioner does ...


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