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Lemons v. Villmer

United States District Court, E.D. Missouri, Eastern Division

July 22, 2015

JOE LEMONS, Petitioner,
v.
TOM VILLMER, [1] Respondent.

MEMORANDUM AND ORDER

ABBIE CRITES-LEONI, Magistrate Judge.

This matter is before the Court on the Petition of Joe Lemons for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

I. Procedural History

Petitioner Lemons is presently incarcerated at the Farmington Correctional Center in Farmington, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of New Madrid County, Missouri. (Respt's Ex. B at 36-37.)

On February 11, 2008, a jury found Lemons guilty of one count of the class B felony of possession of a controlled substance with intent to deliver, and one count of the class A misdemeanor of resisting arrest. Id. at 29-30. Lemons was sentenced to fifteen years imprisonment for the possession charge and a concurrent one-year term for the resisting arrest charge. (Respt's Ex. A at 36-37.)

Lemons raised two claims on direct appeal. In his first claim, Lemons argued that the trial court erred in convicting and sentencing him for the possession of crack cocaine with intent to deliver charge because there was insufficient evidence to convict him of the offense in that the laboratory analysis of the substance could not identify it as cocaine base but identified it as the legally distinct substance of cocaine. (Respt's Ex. C at 12.) In his second claim, Lemons argued that the trial court plainly erred in submitting Instruction No. 9 to the jury and in convicting him of the crime of resisting arrest; Instruction No. 9 allowed the jury to return a verdict against him for a crime with which he was not charged. Id. at 13. On September 8, 2009, the Missouri Court of Appeals for the Southern District affirmed Lemons' convictions. (Respt's Ex. E.)

Lemons filed a timely motion for post-conviction relief under Rule 29.15. (Respt's Ex. G at 4-16.) After the appointment of counsel, Lemons filed an amended post-conviction relief motion and request for an evidentiary hearing. Id. at 18-28. In the amended motion, Lemons argued that trial counsel was ineffective for asking voir dire questions of police officers and others on the jury panel whether, in their experience, the police officers they knew ever lied. Id. at 19. Lemons also attached and incorporated the following pro se claims: (1) he received ineffective assistance of counsel when trial counsel failed to move for dismissal of the charges against him as the trial court was without jurisdiction because the State did not file its information or indictment within ten days after the date it filed the complaint; (2) he received ineffective assistance of counsel when trial counsel failed to impeach Officer James Waynick; and (3) he received ineffective assistance of counsel when trial counsel failed to move to strike the testimony of Officer John Higgins. Id. at 10-16. The motion court denied Lemons' claims after holding an evidentiary hearing. Id. at 30-36.

In his sole point on appeal from the denial of post-conviction relief, Lemons argued that he received ineffective assistance of counsel because trial counsel had no reasonable strategy for asking police officers and others on the venire panel if, in their experience, police officers ever lie. (Respt's Ex. H.) The Missouri Court of Appeals affirmed the decision of the motion court. (Respt's Ex. J.)

Lemons timely filed the instant Petition on May 18, 2012. (Doc. 1.) Lemons raises four grounds for relief, including: (1) the evidence was insufficient to support his conviction for possession of a controlled substance with intent to deliver because the State failed to prove that the drugs he possessed were crack cocaine as opposed to cocaine; (2) the trial court erred in submitting Instruction No. 9 to the jury and in convicting him of the crime of resisting arrest because the instruction allowed the jury to return a verdict against him for a crime with which he was not charged; (3) Lemons presents all of the claims that he raised in his motion for new trial; and (4) he received ineffective assistance of counsel when trial counsel asked the venire panel if, in their experience, police officers ever lie.

On July 12, 2012, Respondent filed a Response to Order to Show Cause, in which he argues that ground two is not cognizable; parts of ground three are procedurally defaulted; and Lemons' claims fail on their merits. (Doc. 12.)

II. Facts[2]

Viewing the evidence in the light most favorable to the verdict, the record reveals that in the late evening of June 19, 2007, Sergeant Joe Stewart of the Kennett Police Department was on patrol when he drove past Lemons who was standing near Mason's Bar on Baldwin Street in Kennett, Missouri. There was testimony at trial that this was a known area for crack cocaine transactions. Sergeant Stewart believed there was a municipal court warrant out for Lemons' arrest and he checked with dispatch to confirm that Lemons did, in fact, have an outstanding warrant. Sergeant Stewart then requested back up assistance from another officer rand turned his vehicle around to go back to the location where he had first encountered Lemons. As Sergeant Stewart approached Lemons in his vehicle he noticed there were two other males standing there with him. When the trio spotted Sergeant Stewart's vehicle approaching their location, the two other individuals walked away in somewhat of a hurried manner toward the north side of Mason's Bar. Sergeant Stewart illuminated the men with his spotlight and the two men started to flee. At that point, Sergeant Stewart exited his patrol car and yelled at them to stop.

Around this time, Officer Bernie Rogers arrived on the scene to assist Sergeant Stewart. He exited his vehicle and approached Lemons at which time he advised Lemons to stop because there was a warrant out for his arrest. Lemons started walking away from Officer Rogers and then he took off running. Officer Rogers pursued Lemons on foot until Lemons jumped a fence and Officer Rogers was unable to follow him.

Approximately an hour later, in the early morning hours of June 20, 2007, Office Rogers was patrolling the area in his patrol vehicle accompanied by Corporal Aaron Waynick. They again encountered Lemons standing outside Mason's Bar. Officer Rogers pulled up to Lemons and Lemons immediately tried to get around the patrol car. Corporal Waynick got out of the car, yelled at Lemons to stop, and told him he was under arrest. A pursuit ensued in which Corporal Waynick chased Lemons on foot through a residential area and Officer Rogers pursued him in his patrol vehicle. They eventually cornered Lemons in some bushes in the yard of a home. The officers informed Lemons he was under arrest and instructed him to put his hands behind his back. Lemons failed to do so and, instead lay on the ground and placed his hand underneath him. He told the officers he "didn't do anything" (Respt's Ex. A at 105) and demanded to know why they were "messing with him, " id. at 127. Corporal Waynick warned Lemons that if he did not put his hands behind his back as requested, they would have to mace him. When he still refused to cooperate, Corporal Waynick maced him and the officers cuffed his hands behind his back.

Lemons was arrested and, before placing him in the patrol car, Officer Rogers searched Lemons at which time he found a prescription pill bottle in Lemons' front left pocket. Inside the bottle were two small, white, rock-like substances. After Lemons was transported to the police station, Officer Rogers conducted a field test on the two rock-like substances found in the prescription bottle and the substances tested positive for the presence of cocaine base, which is also referred to as crack cocaine.

A trial was held on February 11, 2008. At trial, John Higgins, a supervising agent for the Bootheel Drug Task Force, testified that the drug of choice in the area where Lemons was arrested is definitely crack cocaine and it is routine for people in that area to sell small amounts of it at a time. He related that the average size of crack cocaine sold was 0.1 to 0.15 grams and the two rocks found on Lemons were consistent with that size. He also testified that it is common for crack cocaine to be sold in rock form such as the ones found on Lemons as opposed to being individually packaged.

Amy Nix, a forensic chemist with the Missouri State Highway Patrol, testified that she tested two rocks which were in the form of crack cocaine. However, her testing was unable to conclusively determine whether the rocks were "cocaine" or "cocaine base." Id. at 147. She therefore "had to report it as cocaine." Id. Nevertheless, she also related that both "cocaine base" and "cocaine" were controlled substances. Id.

III. Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus... only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2254(a). Further, a federal court may not grant habeas relief unless the claim adjudicated on the merits in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. §2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. §2254(e)(1). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual findings presumed to be correct where fairly supported by the record).

"Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With regard to the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006); Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.

IV. Petitioner's Claims

The undersigned will discuss Lemons' four grounds for relief in turn.

1. Ground One

In his first ground for relief, Lemons argues that there was insufficient evidence supporting his conviction for possession of a controlled substance with intent to deliver. Lemons contends that the State failed to prove that the drugs he possessed were crack cocaine as opposed to regular cocaine.

The Amended Information charged that Lemons:

In violation of Section 195.11, RSMO, committed the class B felony of possession of a controlled substance with intent to deliver.... in that on or about June 19th, 2007, in the County of Dunklin, State of Missouri, [Lemons], with the intent to deliver, possessed crack cocaine, a controlled substance, knowing of its presence and nature...

(Respt's Ex. B at 15.)

At trial, Officer Rogers testified that he field tested the white rocks that he recovered from Lemons as soon as he returned to the police station after arresting Lemons. (Respt's Ex. A at 107.) Officer Rogers described the field testing procedure as follows:

At the police department, we have a large gray container which is set up to test different kinds of narcotics. And what I did was I took a small amount off of one of the rocks, and, I placed it in a tray, it's a part substance, part A and a part B, and, you put the part A in there and I mix it up, when you put a part B in there, it will turn a bluish color, which is a positive response for cocaine base.

Id. Officer Rogers testified that, in this case, the substance turned blue. Id. at 108.

Amy Nix, a forensic chemist with the Missouri State Highway Patrol, testified that her testing of the two rocks did not conclusively determine whether the rocks were "cocaine" or "cocaine base." Id. at 147. Ms. Nix testified that she therefore "had to report it as cocaine." Id. She stated that cocaine is a controlled substance, and that the cocaine tested was in the form commonly referred to as "crack cocaine." Id.

Due Process and the Sixth Amendment "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." United States v. Gaudin, 515 U.S. 506, 510 (1995); Johns v. Bowersox, 203 F.3d 538, 543 (8th Cir. 2000) (quoting Gaudin, 515 U.S. at 510). Therefore, a petitioner is entitled to habeas corpus relief under § 2254 "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979); Nance v. Norris, 392 F.3d 284, 289-90 (8th Cir. 2004). The relevant question in analyzing such a claim is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson, 443 U.S. at 319 (citation omitted); Skillicorn v. Luebbers, 475 F.3d 965, 977 (8th Cir. 2007) (quoting Jackson, 443 U.S. at 319), ...


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