United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Earl Bonds’s
pro se Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody. (Petition, ECF
No. 1.) Respondent has filed a Response (ECF No. 13), and the
Petition is ready for disposition.
November 14, 2008, a jury in the Circuit Court of St. Louis
City found Petitioner guilty of four counts of statutory
sodomy in the first degree. On January 9, 2009, the trial
court sentenced Petitioner to 10 years in prison on each
count, to run consecutively. On February 16, 2010, the
Missouri Court of Appeals upheld Petitioner’s
conviction and sentence on direct appeal. Petitioner moved
for post-conviction relief pursuant to Missouri Supreme Court
Rule 29.15. He was appointed counsel and thereafter filed an
amended Rule 29.15 motion, which was denied. On May 6, 2014,
the Missouri Court of Appeals affirmed the denial of
instant Petition, Petitioner raises the following two grounds
(1) that trial counsel was ineffective, in that counsel
misinformed Petitioner regarding the range of punishment he
faced, which led to his decision to not “plead
guilty, pursuant to the State’s plea offer”; and
(2) that trial counsel was ineffective, in that counsel
failed to investigate and develop a defense to challenge part
of the victim’s videotaped statement.
did not raise either of these claims in his amended Rule
29.15 motion. However, he asserts ineffective assistance
of post-conviction counsel as cause for his procedural
a federal court reviewing a state conviction in a 28 U.S.C.
§ 2254 proceeding may consider only those claims which
the petitioner has presented to the state court in accordance
with state procedural rules.” Arnold v.
Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012)
(quotation and citation omitted). A section 2254
applicant’s failure to raise a claim in state court
results in procedural default. See Wooten v. Norris,
578 F.3d 767, 777 (8th Cir. 2009) (citation omitted). To
avoid defaulting on a claim, a petitioner “must have
fairly presented the substance of the claim to the state
courts…thereby affording such courts fair opportunity
to apply controlling legal principles to the facts bearing
upon the claim.” Wemark v. Iowa, 322 F.3d
1018, 1020-21 (8th Cir. 2003) (quotation and citation
omitted). “A claim has been fairly presented when a
petitioner has properly raised the same factual grounds and
legal theories in the state courts which he is attempting to
raise in his federal habeas petition.” Id. at
1021 (quotations and citations omitted).
a habeas petitioner defaults his federal claims in state
court…federal habeas review of his claims is barred
unless he ‘can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of
justice.’” Morgan v. Javois, 744 F.3d
535, 538 (8th Cir. 2013) (quoting Coleman v.
Thompson, 501 U.S. 722, 750-51 (1991)), cert.
denied, 134 S.Ct. 1882 (2014). “Cause must be
something external to the petitioner, something that cannot
fairly be attributed to him.” Arnold, 675 F.3d
at 1087 (quotation and citations omitted). To establish
actual prejudice, the petitioner “must show that the
errors of which he complains ‘worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.’” Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (quoting
United States v. Frady, 456 U.S. 152, 170 (1982)).
To establish that a fundamental miscarriage of justice would
result, the petitioner must “present new evidence that
affirmatively demonstrates that he is innocent of the crime
for which he was convicted.” Murphy v. King,
652 F.3d 845, 850 (8th Cir. 2011) (quotation and citation
assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at
trial.” Martinez v. Ryan, 132 S.Ct. 1309, 1315
(2012). To establish such cause, the petitioner must show
that post-conviction counsel’s assistance was
ineffective under the standards of Strickland v.
Washington, 466 U.S. 668 (1984), and that his underlying
claim of ineffective assistance of trial counsel is a
“substantial” one. Martinez, 132 S.Ct.
at 1318-19; see also Dansby v. Hobbs, 766 F.3d 809,
834 (8th Cir. 2014). If the underlying claim of ineffective
assistance of trial counsel is unsubstantial or
non-meritorious, petitioner cannot establish that
post-conviction counsel was ineffective and thus cannot show
cause for default of the underlying claim. See
Martinez, 132 S.Ct. at 1319. Likewise, if
post-conviction counsel did not perform below constitutional
standards, no cause is shown for default. Id.
order to prevail on an ineffective-assistance claim, a
petitioner must demonstrate that counsel’s performance
was constitutionally deficient, and that the deficient
performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). The
petitioner must first show that counsel’s performance
“fell below an objective standard of
reasonableness.” Id. at 687-88. Review of
counsel’s performance by the Court is “highly
deferential, ” and “counsel is strongly presumed
to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.” Id. at 689, 690. The petitioner
must then establish prejudice by showing that “there is
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A