United States District Court, W.D. Missouri, Western Division
SCOTT W. ECKERT, Petitioner,
TROY STEELE, Respondent.
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 Potosi Correctional Center in Mineral Point, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 convictions of forcible rape, first-degree statutory rape, tampering with physical evidence, and two counts of endangering the welfare of a child which were entered in the Circuit Court of DeKalb County, Missouri.
Petitioner asserts four (4) grounds for relief: (1) the trial court erred in overruling petitioner's objection to the State's cross-examination of petitioner about pornography found in his house; (2) the trial court erred in admitting a video-taped deposition of the victim in lieu of her live testimony; (3) ineffective assistance of trial counsel for opening the door to the State cross-examining petitioner about the pornography found at his house during a police search; and (4) ineffective assistance of trial counsel for inappropriately cross-examining the victim during a deposition. Doc. No. 1, pp. 5-6, 8, 10. Respondent contends that Grounds 1 and 4 are procedurally barred and that Grounds 2 and 3 are without merit.
In affirming petitioner's conviction and sentence, the Missouri Court of Appeals, Western District, set forth the following facts:
At the time of the incident giving rise to [petitioner]'s conviction, [petitioner] lived in Chula, Missouri, with his girlfriend, Jacqui, and three children, one of whom was Jacqui's seven-year-old daughter, B.M. On May 3, 2007, while Jacqui was working an evening shift, [petitioner] picked B.M. up from the babysitter and returned to the family home. Soon after Jacqui came home from work at about 9:45 p.m., B.M. got out of bed and hurried to the bathroom. Jacqui followed her in after noticing a large amount of blood on B.M.'s pajama bottoms.
Jacqui called 911 soon thereafter, and the responding EMTs found B.M. unresponsive, covered in blood, and slumped over the toilet. B.M. was taken to the local hospital in Chillicothe and then transported to Children's Mercy Hospital in Kansas City.
The emergency room physician at Children's Mercy testified that B.M. had suffered a life-threatening vaginal laceration which required blood transfusions equal to her entire blood volume. The surgeon who repaired the injury described it as a forcible penetrating injury consistent with sexual assault. B.M. also had bruises on her chest, shoulders, and spinal column.
In a search of the [petitioner's] home, local law enforcement discovered a mixed blood-and-semen stain on the master bedroom mattress. Testing found DNA belonging to B.M. in the blood fraction of the stain and DNA belonging to [petitioner] in the sperm fraction. In a written statement, [petitioner] told the sheriff that he was alone with B.M. and his younger daughter that night and that no one came or went from the house until Jacqui returned. [Petitioner] was arrested on May 8, 2007. He later claimed that he thought someone had broken in and raped B.M., but there was no sign of forced entry.
B.M. testified in deposition that [petitioner] had come into the master bedroom where she was lying on the bed and asked her to pull down her pants. She said that [petitioner] then put his "front piece" inside her, causing her to bleed.
The State filed a pretrial motion to allow introduction of B.M.'s videotaped deposition in lieu of live testimony on the grounds that B.M. would be unavailable as a witness due to the significant emotional or psychological trauma that would result from her testifying in the presence of [petitioner]. [Petitioner]'s counsel had been present during the deposition and had had the opportunity to question B.M., but [petitioner] was not present. During the hearing on this motion and at trial, B.M's counselor, a clinical social worker who was licensed in Missouri and had nine years of experience, testified that "it would be emotionally traumatic" for B.M. to have to come into court and face [petitioner] and that in prior conversations with the counselor, B.M. often experienced anxiety and suffered emotional outbursts. The court admitted the deposition over [petitioner]'s objection.
[Petitioner] made a pretrial oral motion in limine seeking to prevent the introduction of pornographic books and videos that were discovered in a search of his home. The trial court sustained the motion in limine. However, after defense counsel asked [petitioner] at trial whether he had any "predilection toward kiddy porn, or anything like that" and [petitioner] described his sexual relationship with his girlfriend as "nothing too out of the ordinary, " the trial court found that the defense had opened the door to questioning about the books and videos, and it permitted the State to cross-examine [petitioner] about the material.
Resp. Ex. E, pp. 4-6.
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 restablish 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 ...