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Ross v. Cassady

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

May 1, 2015

WALTER ROSS, Petitioner,
v.
JAY CASSADY, 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, Walter Ross, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on August 29, 2014, seeking to challenge his 2008 convictions and sentences for robbery in the first degree, armed criminal action, unlawful use of a weapon, and possession of a controlled substance, which were entered in the Circuit Court of Nodaway County, Missouri.

Petitioner asserts three (3) grounds for relief: (1) the trial court erred in failing to grant petitioner's motion for acquittal at the close of evidence because there was insufficient evidence to show that petitioner possessed a controlled substance; (2) the trial court erred in limiting petitioner's cross-examination of Ashley regarding her attempted suicide; and (3) ineffective assistance of counsel for failing to make an adequate offer of proof. Doc. No. 1. Respondent contends that Grounds 1 and 3 are without merit and that Ground 2 is procedurally barred. Doc. No. 22.

FACTUAL BACKGROUND

On direct appeal, the Missouri Court of Appeals summarized the facts of the case:

In the light most favorable to the verdict, the evidence was that on November 7, 2007, [petitioner] and Chasity Carter entered the Dollar General store in Mound City, Missouri. [Petitioner] purchased a pack of gum with Carter standing about a foot behind him at the cash register. At the conclusion of that transaction, [petitioner] pointed a gun at the clerk and said, "Give me the money." The clerk had trouble opening the cash register, so the manager came to her assistance. The manager saw the gun, opened the cash register, and gave [petitioner] the money. [Petitioner] and Carter left the store and ran toward an alley, which led to the street behind the store. Waiting on the street was a red Jeep Cherokee, license number 424 SJK, operated by Kimoni Russell and also containing [petitioner]'s niece, Ashley Ross. [Petitioner] and Carter ran to the car, entered, and left the scene.
A full description of [petitioner] and the Jeep, including the license number, was provided to police by witnesses. Twenty five minutes after the robbery, Missouri State Highway Patrol Trooper Adam Rice spotted the red Jeep with license number 424 SJK. At that time, it was traveling north on I-29 while he was traveling southbound on the same highway. Trooper Rice activated his lights and sirens and made a U-turn in the median to pursue the Jeep. The Jeep travelled approximately another mile before it finally stopped.
After the Jeep was spotted by the trooper but, before they stopped, [petitioner] threw the gun used in the robbery out of the vehicle. [Petitioner] also gave Ashley Ross a baggie containing Ecstasy pills. He told her, "Stuff the pills before we all go to jail." She obliged by hiding the baggie of drugs in her vagina. Eventually, all of the occupants of the car were arrested.
After a jury trial, [petitioner] was convicted and sentenced on four counts. He received sentences of twenty years for robbery and ten years for armed criminal action to be served consecutively. He also was sentenced to four years for unlawful use of a weapon and two years for possession of a controlled substance, with those sentences to be served concurrently with each other and with the other sentences.

Respondent's Exhibit E, pp. 1-2.

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).[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.

GROUND 1

In Ground 1, petitioner contends that the trial court erred in failing to grant his motion for judgment of acquittal because the evidence was insufficient to show that petitioner possessed a controlled substance. Doc. No. 1, p. 5. Specifically, petitioner claims that the pills actually belonged to Kimoni Russell and that petitioner only momentarily touched the pills when he tossed them to Ashley. Doc. No. 15, pp. 5, 9-12.

A federal habeas court may not overturn a state court decision regarding a sufficiency of the evidence challenge simply because it disagrees with the state court; a federal court may only overturn the decision if it was "objectively unreasonable." Cavazos v. Smith, 132 S.Ct. 2, 3 (2011). The Missouri Court of Appeals, Western District, denied petitioner's claim as follows:

In the case at bar, the State produced direct evidence of [petitioner]'s actual possession of the baggie of Ecstasy pills. At trial, Ashley Ross acknowledged that she had given the police a written statement, stating that her uncle handed her the pills. She testified at trial that her uncle told her, "Stuff the pills before we all go to jail." This evidence of actual possession, however fleeting, taken together with his statement is decisive, if not dispositive, to [petitioner]'s point because [petitioner] is exercising control over the drugs. Section 195.202.1, RSMo 2000, specifies that "it is unlawful for any person to possess or have under his control a controlled substance." Section 195.010(34), RSMo Cum. Supp. 2008, declares that, to possess a controlled substance, a person must have knowledge of the presence and nature of the substance and have actual or constructive possession of it. The statute provides, "A person has actual possession if he has the substance on his person or within easy reach and convenient control." Thus, an exercise of control over the drugs is relevant to a determination of ...

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