United States District Court, E.D. Missouri
MEMORANDUM AND ORDER
JOHN M. BODENHAUSEN, Magistrate Judge.
This matter is before the Court on Missouri state prisoner Tommie Lee Jones's pro se petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The undersigned concludes that the matter may be resolved on the existing record, without the need for an evidentiary hearing, the Petition should be denied and that no certificate of appealability should be issued.
I. INTRODUCTION AND PROCEDURAL HISTORY
Tommie Lee Jones (hereinafter "Jones" or "Petitioner") filed the instant § 2254 petition raising seven grounds for relief. Jones raises three different claims of ineffective assistance of counsel (with subparts). Jones also alleges that the State of Missouri failed to disclose favorable evidence which it was required to disclose. Jones further alleges a claim of prosecutorial misconduct for eliciting testimony regarding Jones's post-arrest statements to a police officer. Next Jones alleges that the trial court erred in overruling his motion for judgment of acquittal. Jones also alleges that two of the trial court's jury instructions were constitutionally defective.
The State of Missouri counters that most of Jones's grounds are procedurally barred and all of the grounds lack merit. Before addressing Jones's petition in detail, it will be useful to summarize the procedural background of this matter.
B. Factual Background
Jones and a co-defendant, Uvone Ward ("Ward"), were charged in the Circuit Court for the City of St. Louis with first degree robbery, armed criminal action, resisting arrest, unlawful use of a weapon, and tampering in the second degree. A jury convicted Jones of the robbery, armed criminal action, and resisting arrest charges. The remaining charges were dismissed by the State of Missouri. Jones was sentenced to 20 years imprisonment on each of the robbery and armed criminal action convictions, and 4 years imprisonment for resisting arrest. All of the sentences were to be served concurrently. As noted below, the State's theory of the case was that Ward committed an armed robbery and Jones drove the getaway vehicle - a pick-up truck. Using the State's terminology, Jones "acted in concert" with Ward.
Jones's charges stemmed from the following events. At around 8:30 pm, on October 18, 2005, Mary Kathleen Becherer was walking home from a dinner with her husband, Bruce Bailey, who was going to drive home. Ward robbed Ms. Becherer of the contents of her purse at gunpoint and then ran away, passing Mr. Bailey's position. Mr. Bailey observed Ward run and then enter the passenger side of a maroon, full-size pick-up truck. The truck fled the scene at high speed. A person named Alfred Hargrove approached Ms. Becherer and told her that he saw Jones driving a red pick-up truck between 8:00 p.m. and 8:30 p.m., and that the passenger in that truck pointed a gun at Hargrove.
Earlier in the evening, shortly before Ward robbed Ms. Becherer, Ward got out of a red pick-up truck and robbed Ahmoy Nickolai at gunpoint. Ms. Nickolai did not identify the driver of the pick-up truck.
St. Louis Metropolitan Police officers observed a pick-up truck that matched the description of the getaway vehicle in the Becherer robbery. Officers followed the truck and then activated their lights and sirens in an attempt to pull over the truck. Instead, the truck drove off at a high rate of speed. The truck slowed down and officers observed the passenger (Ward) throw an object out of the window. The object, a pistol, was later recovered. The truck then stopped, Ward got out and fled the area. The truck again drove off at a high rate of speed. The truck eventually stopped and the police arrested the driver - Jones. Upon being arrested, and before the police asked him any questions, Jones uttered, "I didn't rob anybody" or "I didn't rob anyone." Ward's fingerprints were found on the truck but not the gun.
C. Pre-Trial and Trial Matters
Jones and Ward were indicted on charges related to the armed robbery of Ms. Becherer. Ward was also charged with robbing Ms. Nickolai. Jones and Ward were tried together. Prior to trial, Ward's counsel filed a motion to sever the defendants' trials. (Resp. Exh. A at 18) Jones's counsel did not file a separate motion to sever. The trial court denied co-defendant Ward's severance motion. (Id.)
During its case-in-chief, the State presented the testimony of Detective Scott Ecker, which included Ecker's in-court identification of Jones. Ecker affirmed his out-of-court identification of Jones as the driver of the red full-size pickup truck who was arrested on the night in question. (Resp. Exh. A at 132) On direct examination, Ecker testified that, after the arrest, but before he asked Jones any questions, Jones stated, "I didn't rob anybody" or "I didn't rob anyone." (Id.) The defense did not object to this line of questioning.
The State also presented the testimony of Alfred Hargrove, which included an in-court identification of Jones. Although he might be characterized as a reluctant witness, Mr. Hargove testified that he had seen Jones driving a red full-size pickup truck before it was stopped by the police. Prior to Trial, Mr. Hargrove stated that there was a passenger in the truck, who may have been brandishing a gun. Mr. Hargrove's trial testimony was equivocal on the matter. (Resp. Exh. A at 317-20) Mr. Hargrove also testified to his out-of-court identification of Jones.
Near the close of evidence, the prosecutor alerted the trial court to the fact that Ward had a "continuing motion to suppress identification." ( Id. at 422) The trial court noted that "Defendant Jones also objects." ( Id. at 423) Thereafter, the court ruled that the State had demonstrated by a preponderance of evidence that the identification evidence was reliable. Specifically, the trial court found that: (1) the identification procedures were not impermissibly suggestive; (2) the State had demonstrated that the witness identifications were the product of a sufficiently independent opportunity to view and remember the defendant; and (3) the police procedures did not taint the identification. ( Id. at 423)
During Jones's case-in-chief, counsel did not present testimony from any witness and Jones declined to testify. (Resp. Exh. A at 420) Jones played two 911 tapes as evidence. ( Id. at 423-424) At the close of all evidence, Jones moved for judgment of acquittal. (Resp. Exh. A at 424-25) The trial court denied the motion.
Several of the trial court's jury instructions are relevant to the present matter - Instruction Nos. 10, 11, and 12. In Instruction No. 10, the trial court explained that "a person is responsible for his own conduct and he is also responsible for the conduct of another person in committing an offense if he acts with the other person with the common purpose of committing that offense or if, for the purpose of committing that offense, he aids or encourages the other person in committing it." (Resp. Exh. B at 39) In Instruction No. 11, the trial court charged the jury to find Jones guilty of the armed robbery charge if Jones, "acting with" Uvone Ward, committed acts corresponding to the elements of the offense. ( Id. at 40) In Instruction No. 12 the trial court charged the jury to find Jones guilty of armed criminal action if Jones, "acting with" Uvone Ward, committed the conduct corresponding to the elements of the offense. ( Id. at 41)
The jury found Jones guilty of first-degree robbery, armed criminal action, and resisting arrest. (Resp. Exh. B at 46-48) Jones was sentenced to 20 years for each of the first two crimes and 4 years for the third crime, with all sentences to be served concurrently. (Resp. Exh. A at 478) Jones filed a motion for a new trial which the trial court denied during the sentencing hearing. (Resp. Exh. A at 477-78)
D. Direct Appeal
Jones appealed his conviction to the Missouri Court of Appeals. Jones raised three points of error on appeal. First, Jones argued that the trial court erred in overruling his motion for judgment of acquittal at the close of all of the evidence, claiming there was insufficient evidence to support his convictions. Second, Jones argued that the trial court plainly erred in submitting Instruction Nos. 11 and 12 because they failed to comply with MAI-CF.3d 304.04 and were not supported by the evidence. Third, Jones argued that the trial court plainly erred in removing the issue of punishment from the jury and sentencing him as a prior felony offender under Mo. Rev. Stat. 558.016. The court denied each point but agreed to remove the prior offender classification from the judgment and sentence to avoid compromising Jones's eligibility for parole. (Resp. Exh. F)
With respect to the denial of Jones's motion for judgment of acquittal, the court explained that, because the motion was submitted before the jury was instructed, it would evaluate Jones's first point on appeal without considering the effects of Instruction Nos. 11 and 12. (Resp. Exh. F at 3) The court explained that it would affirm a denial of a motion for judgment of acquittal if, at the close of all evidence, there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offense. (Id.) The court further explained that, because Missouri law does not distinguish between principals and accessories, the State had to show that a defendant associated himself with the venture or participated in the crime in some manner in order to make a submissible case of accomplice liability. ( Id. at 4) The court considered the fact that Jones fled upon realizing the presence of police and his voluntary statement that he "didn't rob anybody" or "didn't rob anyone" as evidence of guilt. ( Id. at 5) The court noted the fact that Jones knew the principal actor had robbed someone and that Jones acted as a getaway driver is sufficient evidence of participation to support a finding of accomplice liability. (Id.)
As to Jones's second point regarding the jury instructions, because Jones did not object to the instructions, the Missouri Court of Appeals conducted only a plain error review. According to that court, in order to overturn a verdict on plain error review, the error must constitute a manifest injustice. (Resp. Exh. F at 7) The State conceded that Instruction Nos. 11 and 12 failed to comply the Missouri Approved Instructions (MAI-CR3d) and associated the Notes on Use. ( Id. at 9) The Missouri Court of Appeals explained, however, that the phrase "acting with" used in the instructions resulted in the State shouldering a higher burden than the language of the approved instruction. (Id.) Furthermore, the court pointed out that Instruction No. 10 was read to the jury and properly set out accomplice liability. (Id.) Therefore, the court reasoned, the jury would have found Jones guilty even if there had not been an instructional error and thus that the asserted error was not outcome determinative. (Id.) Jones's third point of error in his direct appeal is not relevant to his habeas petition.
E. Rule 29.15 Post-Conviction Motion and Appeal
Following his unsuccessful direct appeal, Jones filed a pro se motion for post-conviction relief, pursuant to Missouri Rule 29.15, raising a variety of claims. (Resp. Exh. G at 4-27, 31-40) The motion court appointed counsel to assist Jones. Appointed counsel filed an amended Rule 29.15 motion. Jones's amended Rule 29.15 motion raised several, related allegations of ineffective assistance associated with trial counsel's failure to sever Jones's trial from Ward's trial. In particular, the amended motion alleged that trial counsel was ineffective for failing to: (1) file a pre-trial motion to sever defendants; (2) object at trial to the hearing of both cases together; (3) preserve a severance objection for appellate review; (4) object to evidence that would not have been admissible in the absence of a joint trial; and (5) preserve for appellate review an objection to evidence that would not have been admissible in the absence of a joint trial. (Resp. Exh. G at 44)
The motion court denied a request for an evidentiary hearing, finding that Jones's grounds were refuted by the existing record. The motion court denied Jones's amended Rule 29.15 motion. (Resp. Exh. G at 50, 55)
Petitioner appealed the denial of his Rule 29.15 motion to the Missouri Court of Appeals. The court denied Jones's appeal in a summary order accompanied by a more detailed supplemental memorandum. (Resp. Exh. J) The court concluded that Jones had not shown by a preponderance of the evidence that his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances resulting in deficient performance that prejudiced the defendant. (Id.) The appeal of Jones's Rule 29.15 motion is discussed in greater detail below in the context of specific issues raised in this matter.
A. Applicable Legal Standards
1. Standard of Review and Procedural Framework
The standards and limitations of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply to this Court's review of Jones's claims. The Court's review is both "limited and deferential." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under the AEDPA, a federal court may not grant relief to a state prisoner's claim unless the state court's adjudication of the claim "was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court, or was an unreasonable determination of facts in light of the evidence presented in state court." Cole v. Roper, 623 F.3d 1183, 1187 (2010) (citing 28 U.S.C § 2254(d)). "A state court decision may be incorrect, yet still not unreasonable...." Id . (citing McGehee v. Norris, 488 F.3d 1185, 1193 (8th Cir. 2009)). A federal court may grant habeas relief "only if the state court decision is both incorrect and unreasonable." Id.
"A state court decision is contrary to' the Supreme Court's clearly established precedent if the state court either arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law' or decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts.'" Bucklew v. Luebbers, 436 F.3d 1010, 1016 (2006) (quoting Williams v. Taylor, 529 U.S. 326, 412-13 (2000)). "A state court decision is an unreasonable application' of Supreme Court precedent if it identifies the correct governing legal principle... but unreasonably applies that principle to the facts of the prisoner's case.'" Id.
Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct' in a federal habeas proceeding." Cole, 623 F.3d at 1187 (quoting 28 U.S.C. § 2254(e)(1)). Finally, a state court decision involves an unreasonable determination of the facts only if the presumptively correct factual findings do not enjoy support in the record. See Ryan v. Clark, 387 F.3d 785, 790 (8th Cir. 2004).
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was constitutionally deficient, and that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). "Judicial scrutiny of counsel's performance is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide range of professional judgment." Bucklew, 436 F.3d at 1016 (citing Strickland, 466 U.S. at 689). Thus, "[u]nder Strickland, counsel's performance is measured against an objective standard of reasonableness, ' and hindsight is discounted by pegging adequacy to counsel's perspective at the time investigative decisions are made, and by giving a heavy measure of deference to counsel's judgments.'" Id . (quoting Rompilla v. Beard, 545 U.S. 374, 380-81 (2005)). Under Strickland "[p]rejudice is shown by demonstrating that counsel's errors were so serious that they rendered the proceedings fundamentally unfair or the result unreliable." Id . (citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). To be entitled to relief on a claim that trial counsel was ineffective, a petitioner must show both: (1) that "counsel's representation fell below an objective standard of reasonableness, " and (2) that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at.687-88, 694. In order to succeed, a petitioner must prevail on both prongs of the Strickland standard. See Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) ("Failure to establish either Strickland prong is fatal to an ineffective-assistance claim.").
"Taken together, AEDPA and Strickland establish a doubly deferential standard of review.'" Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v. Pinholster, 131 S.Ct. 1388, 1410 (2011)), cert. denied, Williams v. Steele, 134 S.Ct. 85 (2013). "Under AEDPA, we must then give substantial deference to the state court's predictive judgment [regarding Strickland prejudice]. So long as the state court's decision was not contrary to' clearly established law, the remaining question under the unreasonable application' clause of § 2254(d) is whether the state court's determination under the Strickland standard is unreasonable, not merely whether it is incorrect." Id . (citing Harrington v. Richter, 131 S.Ct. 770, 785 (2011)). "This standard was meant to be difficult to meet, and even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'" Id . (quoting Harrington, 131 S.Ct. at 786)." "If the state court reasonably could have concluded that [the petitioner] was not prejudiced by counsel's actions, ' then federal review under AEDPA is at an end." Id. at 832 (quoting Preno v. Moore, 131 S.Ct. 733, 740, 744 (2011)).
2. Procedural Default
The State of Missouri contends that most of Jones's grounds for relief have been procedurally defaulted. To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).
A habeas petitioner may excuse a default in limited circumstances. Claims that have been procedurally defaulted may not give rise to federal habeas relief unless the petitioner can demonstrate cause and prejudice for the default, or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72 (1977). "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). If a petitioner has not previously presented the substance of a habeas claim and has no available procedure for doing so because he has defaulted with respect to legitimate state requirements, federal courts are barred from considering such a ground for habeas relief. Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001) (en banc).
B. Grounds for Relief
1. Ground One - Ineffective Assistance of Counsel - Inadequate Preparation
Jones's first ground for relief alleges that his trial counsel was constitutionally ineffective because counsel failed to adequately prepare for trial. More specifically, Jones contends that defense counsel: (a) failed to investigate potential alibi witness Keoshay Turman; (b) failed to depose prosecution witness Alfred Hargrove; (c) failed to file a motion to suppress statements; and (d) failed to file a motion to suppress Mr. Hargrove's identification of Jones. The State argues that Jones's first ground is procedurally defaulted. The State further contends each subpart of Jones's first ground lacks merit.
The Court agrees with the State - the record demonstrates that Jones procedurally defaulted his first ground because he failed to raise these questions regarding the adequacy of counsel's preparation on direct appeal or in his post-conviction proceedings. The record indicates that Petitioner raised this ground in his pro se 29.15 motion (Resp. Ex. G at 10), but the ground was not included in his amended 29.15 motion, (id. at 41-48), or on appeal from the denial of his post-conviction motion. (Resp. Ex. H) Ordinarily these ...