United States District Court, W.D. Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
ORTRIE D. SMITH, District Judge.
Petitioner, a convicted state prisoner currently confined at the Jefferson City Correctional Center in Jefferson City, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 convictions of first-degree murder and armed criminal action which were entered in Jackson County, Missouri. Petitioner filed a direct appeal of his conviction and sentence and a motion for post-conviction relief pursuant to Mo. Sup.Ct. R. 29.15, which were both denied. Resp. Ex. E; Resp. Ex. I.
Petitioner asserts twenty-three (23) grounds for relief. Respondent contends that Grounds 1, 3, and 5-23 are procedurally defaulted and, alternatively, without merit, and that Grounds 2 and 4 are without merit.
In Ground 1, petitioner contends that the trial court erred in granting the State's strike of Venireperson 12 for cause because the strike was racially motivated and thus unconstitutional. Petitioner next contends that the trial court erred in granting the State's peremptory strike of Venireperson 40 (Ground 2) and Venireperson 49 (Ground 3) because the strikes were racially motivated and thus unconstitutional.
In Ground 4, petitioner contends that his trial counsel was ineffective for (a) failing to impeach witness Crystal Ragsdale; (b) failing to object to Ragsdale's testimony; (c) failing to present evidence of witness Shanice Gates's communication with petitioner; (d) failing to impeach Gates with prior inconsistent statements; and (e) failing to object to "commentary by detectives during petitioner's interrogation." In Grounds 5, 8, 9, and 18, petitioner contends that his trial counsel was ineffective for failing to present certain evidence at trial. In Grounds 6, 20, and 22, petitioner contends that his trial counsel was ineffective for (Ground 6) failing to object to the presence of law enforcement in the court room; (Ground 20) failing to object to the prosecutor's reference to Johnson's death as a "murder" or "homicide;" and (Ground 22) failing to file a motion to suppress statements made to police. In Grounds 7, 10, 16, 17, and 19, petitioner contends that his trial counsel was ineffective for (Ground 7) failing to request specific jury instructions; (Ground 10) failing to make a sufficient record of a "matter not in evidence"; (Ground 16) failing to request a competency evaluation based on petitioner's claim that he could not remember stabbing Johnson; (Ground 17) abandoning other possible defense theories in favor of self-defense; and (Ground 19) failing to advise petitioner of his right not to testify at trial.
In Grounds 11, 12, 13, 14, 15, 16, and 23, petitioner contends that his direct appeal counsel was ineffective for failing to raise claims that the trial court erred in: (Ground 11) excluding evidence that the victim had assaulted petitioner's girlfriends in the past; (Ground 12) excluding evidence of past violent acts by the victim; (Ground 13) excluding petitioner's testimony that the victim had once asked petitioner to rob a man; (Ground 14) overruling petitioner's objection to the introduction of the videotaped interrogation of petitioner by police at trial; (Ground 15) denying trial counsel's request to make an "ex parte record concerning a matter not in evidence"; (Ground 16) excluding evidence that the victim had left petitioner threatening voicemails and texts; and (Ground 23) allowing the State to present evidence obtained as a result of law enforcement "pinging" his cellular phone without a warrant.
On September 27, 2008, petitioner entered the home of Keona Johnson, the mother of his four-month-old son, and stabbed Johnson 106 times. Resp. Ex. E, p. 3. Johnson died as a result of her injuries. Id. At trial, petitioner admitted that he killed Johnson but claimed that he did so in self-defense. Id. On November 18, 2009, following trial, a Jackson County jury found petitioner guilty of first-degree murder and armed criminal action. Resp. Ex. D, pp. 186-88. The Missouri Court of Appeals, Western District, affirmed petitioner's convictions on appeal. State v. Bennett, 354 S.W.3d 247 (Mo.Ct.App. 2011).
Petitioner filed a timely Rule 29.15 motion for post-conviction relief. Resp. Ex. F. Following an evidentiary hearing, the circuit court denied petitioner's motion for post-conviction relief. Id.; Resp. Ex. I. On appeal, the Missouri Court of Appeals, Western District, affirmed the motion court's denial of Rule 29.15 relief. Bennett v. State, 450 S.W.3d 479 (Mo.Ct.App. 2014).
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), cert. denied, 469 U.S. 842 (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). 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.
"A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim." Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" before presenting those issues in an application for habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default." Sloan 54 F.3d at 1381.
In Grounds 1 and 3, petitioner contends that the strikes of Venireperson 12 and Venireperson 49 were unconstitutional based on Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner did not, however, raise his claims regarding the strikes of Venirepersons 12 or 49 in his motion for a new trial as required to preserve it for appellate review. Further, petitioner did not raise Grounds 5-23 in the direct appeal of his convictions and sentences or in his Rule 29.15 motion for post-conviction relief. As such, Ground 1, 3, and 5-23 are procedurally defaulted. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997) (recognizing that failure to present claims in the Missouri Courts at any stage of direct appeal or post-conviction proceedings is a procedural default), cert. denied, 523 U.S. 1010 (1998).
A federal court may not review procedurally defaulted claims "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner alleges ineffective assistance of post-conviction counsel to excuse his procedural default under Martinez v. Ryan, 132 S.Ct. 1309 (2012). In Martinez, the United States Supreme Court recognized that ineffective assistance of post-conviction motion counsel could qualify as cause excusing the failure to raise a claim in the post-conviction motion. Id. at 1319-21
To demonstrate cause under Martinez, a petitioner must show that post-conviction counsel was ineffective in failing to raise a substantial claim of ineffective assistance by trial or plea counsel. Id. at 1318-19. "In order for ineffective assistance of counsel to itself be cause to excuse a procedural default, the ineffective assistance must rise to the level of an independent constitutional violation." Evans v. Luebbers, 371 F.3d 438, 445 (8th Cir. 2004) (citing Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000)). "Thus, the assistance rendered must have been constitutionally substandard and prejudice must have resulted therefrom." Evans, 371 F.3d at 445 (citing Strickland, 466 U.S. at 687).
Petitioner fails to demonstrate that post-conviction counsel was constitutionally ineffective as required for a finding of cause excusing his default. In assessing petitioner's claim that post-conviction counsel's performance was deficient, counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. To overcome this presumption, petitioner must prove that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
Here, apart from the assertion that his procedural default should be excused under Martinez, petitioner provides no facts to support his claim that his post-conviction counsel was ineffective. In addition to his failure to provide any factual support for his claim, citations in the amended Rule 29.15 motion make it clear that post-conviction counsel was familiar with the record. Resp. Ex. F, p. 48. Post-conviction counsel's familiarity with the record, including the evidence presented at trial and the relevant legal issues indicate that the decision to raise certain issues in the amended 29.15 motion and omit others was a reasonable exercise of professional judgment. In light of the presumption that post-conviction counsel acted reasonably and the lack of any specific facts demonstrating deficient performance in the petition, petitioner fails to show that post-conviction counsel provided ineffective assistance with respect to any of his procedurally defaulted claims as required to excuse his procedural default under Martinez.
Even if petitioner could show ineffective assistance of post-conviction counsel, however, his procedurally defaulted claims nevertheless fail because petitioner's underlying claims do not allege "substantial" claims of ineffective assistance of trial counsel as required under the ...