United States District Court, W.D. Missouri, Western Division
KEVIN D. SMITH, Petitioner,
RHONDA PASH, Respondent.
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
GREG KAYS, Chief District Judge.
Petitioner, Kevin Smith, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on December 20, 2013, seeking to challenge his 2007 convictions and sentences for two counts of first-degree tampering with a motor vehicle, felony stealing, misdemeanor stealing, and unlawful use of drug paraphernalia, which were entered in the Circuit Court of Lafayette County, Missouri.
The petition raises fifteen Grounds for relief: (1) insufficient evidence to convict; (2) ineffective assistance of trial counsel for failing to quash the venire panel or request a curative instruction, failing to ask follow up questions of a venireman, failing on multiple occasions to request a mistrial and ineffective assistance of appellate counsel for failing to raise these issues on appeal; (3) ineffective assistance of trial counsel for eliciting testimony from a DNA expert that was favorable to the state; (4) ineffective assistance of trial counsel for failing to request a mistrial for the state's improper closing argument; (5) trial court error for failing to read MAI-CR 300.04 at the first recess of the venire panel; (6) trial court error for sentencing petitioner as a prior and persistent offender because the predicate offense was itself enhanced improperly; (7) ineffective assistance of trial counsel for failing to file a motion to suppress; (8) ineffective assistance of trial counsel for failing to investigate petitioner's case; (9) ineffective assistance of trial counsel for failing to object to the lack of preliminary hearing; (10) ineffective assistance of trial counsel for failing to move to quash the charging document or inform the trial court that it lacked jurisdiction; (11) ineffective assistance of trial counsel for failing to inform the court that petitioner did not receive discovery; (12) ineffective assistance of appellate counsel for failing to brief the trial court's lack of jurisdiction; (13) ineffective assistance of appellate counsel for failing to raise prosecutorial misconduct in calling petitioner a thief; (14) ineffective assistance of appellate counsel for failing to raise trial court error in refusal to strike hearsay testimony; and (15) ineffective assistance of appellate counsel for failing to raise trial court error in denying a continuance and failing to grant a mistrial at voir dire.
Respondent contends that Grounds 1-3 are meritless and that Grounds 4-15 are procedurally barred and, alternatively, are also meritless.
The Missouri Court of Appeals summarized the facts as follows:
On May 30, 2006, the owners of Vahrenberg Implements (a business specializing in farm equipment and located in Higginsville, Missouri) arrived at their place of business and discovered that several tools and other items had been removed from a company-owned pick-up truck parked in the business's parking lot. The steering column of the truck had been pried apart, as if someone had attempted to operate the truck without a key. One of the owners contacted the police to report the apparent theft and vandalism.
Meanwhile, the local police captain responded to a call regarding an intoxicated individual walking in traffic. The individual was identified as [petitioner], and he was found walking in the roadway, carrying a can of beer and a duffel bag. The duffel bag was partially unzipped, revealing several tools inside. Upon request, [petitioner] consented to a search of his duffel bag. The bag contained tools, a green umbrella, an emergency hazard light, a flashlight, and a crack pipe. [Petitioner] also had a pawn ticket, bearing his name and birth date and indicating that, earlier that day, [petitioner] had pawned a toolbox and several tools. Some of the tools in the duffel bag, along with the pawned toolbox and tools, were positively identified by one of the Vahrenberg owners as items removed from their truck.
That same day, local law enforcement officers were also investigating the theft of a maroon Buick sedan. When the Buick was reported stolen the owners indicated that there had been a green umbrella, "a triangle for like a hazard kit, " and a flashlight inside the car. The owners later positively identified the items found in [petitioner's] duffel bag as the ones that had been in their car.
The Buick was recovered that same day after being abandoned behind a local business. Like the Vahrenberg truck, the Buick's steering column was damaged, and it appeared that the ignition had been "jimmied." [Petitioner's] fingerprints were found on the inside of the driver's window, the DNA extracted from cigarette butts found in the car was consistent with [Petitioner's] profile. Following [petitioner's] arrest, an officer, who had been on patrol that morning, recalled seeing [petitioner] narrowly avoid a collision with an oncoming vehicle while driving a maroon Buick.
The State charged [petitioner] with two counts of first-degree tampering (one for the truck and one for the Buick), felony stealing, misdemeanor stealing, and possession of drug paraphernalia. The jury convicted [petitioner] of all counts, and the court sentenced him (as a persistent offender) to twenty years' imprisonment.
This Court affirmed [petitioner's] convictions and sentences on direct appeal. State v. Smith , 241 S.W.3d 864, 865 (Mo. App. W.D. 2008). [Petitioner] filed a Rule 29.15 motion for post-conviction relief, and the motion court set aside [petitioner's] felony stealing conviction after finding trial counsel ineffective for failing to call an appraisal expert to testify to the value of the stolen items. Smith v. State , 343 S.W.3d 766, 767 (Mo. App. W.D. 2011). The motion court, however, denied [petitioner] relief on the remainder of his claims, including the two claims of ineffective assistance of trial counsel he asserts now. Id. On appeal, this Court determined that the motion court's findings of fact and conclusions of law pertaining to the denied claims were insufficient to permit meaningful appellate review. Id. at 768. Thus, we reversed and remanded instructing the motion court to enter sufficient findings and conclusions pursuant to Rule 29.15(j). Id. at 768-69.
On remand, the motion court entered specific findings, determining that counsel's decision not to object to the various references to [petitioner's] alleged prior bad acts was a matter of reasonable trial strategy and that [petitioner] did not suffer any prejudice from counsel's decision. Similarly, the motion court found that counsel's decision to ask, on recross-examination, the question of the State's DNA expert that elicited evidence favorable to the State was a matter of reasonable trial strategy that resulted in no prejudice to [petitioner].
(Doc. No. 8, Respondent's Exhibit O, pp. 2-4) (internal footnotes omitted).
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). Because the state court's findings of fact have fair support in the record and because petitioner has ...