United States District Court, E.D. Missouri, Eastern Division
COREY J. OWENS, Petitioner,
JAY CASSADY,  Respondent.
MEMORANDUM AND ORDER
JOHN M. BODENHAUSEN, Magistrate Judge.
Petitioner Corey J. Owens ("Owens") brings this pro se action, seeking a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). The Court concludes that the matter may be resolved on the existing record. The Court further concludes that the Petition should be denied and that no certificate of appealability should be issued.
A. Factual Background and Trial
A jury in Audrain County, Missouri, convicted Owens of two counts of first-degree assault of a law enforcement officer, two counts of armed criminal action, three counts of possession of a controlled substance, and one count of trafficking in the second degree. In view of Owens' criminal history, the trial court sentenced Owens as a prior and persistent drug and felony offender. Owens received a prison sentence of life plus a consecutive term of twenty years of imprisonment.
Owens' charges stemmed from a traffic stop in August 2007. On August 28, 2007, Public Safety Officers in Mexico, Missouri, stopped a vehicle in which Owens was a passenger. During the car stop, Owens jumped out of the rear passenger seat, pointed a revolver, and began firing shots, striking one of the officers "with either bullet fragments or asphalt from ricochet...." (Resp. Exh. G. at 3) Owens returned to the car, retrieved a semi-automatic handgun with a laser sight, and fired more shots at the officers. Owens returned to the car again and then surrendered. Owens was arrested and removed from the car. During the arrest, officers recovered several bags of marijuana, a bag of Ecstasy, a bag of crack cocaine, and cash. (Id.)
Owens' case was tried to a jury over two days in June 2008. (Resp. Exhs. A & B) The trial court empaneled a jury of twelve plus one alternate juror. The State's first witnesses included the four officers who confronted Owens during the August 2007 traffic stop. (Resp. Exh. A at 111-92) Later during the first day of trial, the State presented testimony and evidence regarding evidence collection. During a recess in the evidence collection witness's testimony, defense counsel advised the trial court that one of the jurors - Juror #5 - "may have been sleeping or at least trying not to sleep at some point during testimony today." (Resp. Exh. B at 233) The court advised that he would "try to keep an eye on her." (Id.) Defense counsel commented that the alternate juror could "step in, " if Juror #5 could not "hear all the evidence." (Id. at 233-34) The court advised, "I don't think we're at that point yet." (Id. at 234)
On the second day of trial, the prosecutor requested a sidebar and advised the trial court that Juror #5 "seems to be nodding off." (Resp. Exh. B at 324) Defense counsel informed the court she had noticed that as well. The court stated, "I've been watching her this morning. She hasn't really fallen asleep." (Id.)
After the close of evidence, during an instruction conference, defense counsel again brought up the issue of Juror #5. Counsel advised that "Juror No. 5 a least appeared to be asleep at several points during the trial..., and that [the defense] would prefer that she not sit as a juror because we're not sure she heard all the evidence." (Resp. Exh. B at 357) The trial court explained that "I did see her with her head down as if she might be asleep and I just waited a couple of seconds and obviously she was not because right after that she raised her head, and was blinking her eyes furiously as if something was bothering her eyes...." (Id.) The court ruled that there was not enough to conclude that Juror #5 "was not conscious and paying attention to the evidence. Just because she may have had her head down or was resting her eyes or something like that doesn't mean that she couldn't hear what was going on or see any of the demonstrative exhibits." (Id. at 358) The court denied defense counsel's request to remove Juror #5. The jury deliberated for about two and one-half hours before reaching a verdict. (Id. at 383, 389)
After the adverse verdict, defense counsel filed a motion for a new trial, which alleged that the trial court erred in failing to remove Juror #5. (Resp. Exh. B at 397-402) In support of the new trial motion, defense counsel prepared affidavits from her second chair and a student intern who had assisted in Owens' trial. Defense counsel also advised that the State had information from some of the jurors and that there "seemed to be [a] consensus that they believed [Juror #5] was sleeping." (Id. at 398; see also Motion for Judgement of Acquittal or, in the alternative, a New Trial and Suggestions in Support, Resp. Exh. C at 80-81, 83-84) The trial court rejected this argument. The court explained that, after being advised of the situation, "I started paying more attention to that juror... and I did note that her head would nod at times but I kept - if her head nodded off I was getting ready to say something and then her head came back up, her eyes came open and it looked more like she was just resting her eyes for a few seconds...." (Resp. Exh. B at 402)
B. Direct Appeal
Owens appealed his conviction, raising two issues. Owens argued that the trial court erred in denying defense counsel's request to replace Juror #5 with the alternate juror. Owens also raised a sufficiency of the evidence claim relating to the drug charges. In a summary order, dated April 28, 2008, the Missouri Court of Appeals affirmed the judgment of the trial court. (Resp. Exh. G)
The Missouri Court of Appeals reviewed Owens' sleeping juror claim under an abuse of discretion standard. (Id. at 7) In a separate memorandum supplementing its summary order, the Missouri Court of Appeals explained that "[t]he trial court is in the best position to determine whether a juror will be able to effectively discharge her duties." (Id. quoting Lester v. Sayles, 850 S.W.2d 858, 870 (Mo. Banc 1993)). The court further noted that, "[a]lthough counsels' subsequent reports may have conflicted with the trial court's observations, the trial court was in the best position to determine whether [Juror #5] was asleep and the extent to which [Juror #5] was paying attention to the evidence." (Id.)
C. Post-Conviction 29.15 Motion Hearing and Appeal
Following the denial of his direct appeal, Owens filed a motion for post-conviction relief, pursuant to Missouri Rule 29.15. With the assistance of appointed counsel, Owens raised numerous claims, including six claims of ineffective assistance of trial counsel. As relevant to the present § 2254 petition, Owens claimed that his "trial attorney was ineffective when she failed to have Juror #5... removed from the jury and replaced with the alternate juror." (Resp. Exh. I at 13, 34) In particular, Owens argued that his defense counsel was ineffective because "she failed to make a record with the other jurors and with co-counsel concerning [Juror #5] sleeping during the trial to support [that juror's] replacement by the alternate juror." (Id. at 35-39) Regarding prejudice, Owens stated that, had defense counsel "questioned jurors and cocounsel on ...