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Curtis v. Wallace

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

July 28, 2016

DENNIS CURTIS, Petitioner,
v.
IAN WALLACE and CHRIS KOSTER,[1] Respondents.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court for review and final disposition of a petition for a writ of habeas corpus filed by Dennis Curtis (Petitioner) pursuant to 28 U.S.C. § 2254. (ECF No. 1). The parties have consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c)(1). (ECF No. 13). For the reasons set forth below, Petitioner’s petition for writ of habeas corpus is denied.

         I. Background

         A jury found Petitioner guilty of first-degree murder, attempted first-degree robbery, and two counts of armed criminal action. (Resp. Ex. B at 68-71). The trial court sentenced him to concurrent terms of life imprisonment without parole for first-degree murder and life imprisonment for each count of armed criminal action. (Id.). The trial court also sentenced Petitioner to a fifteen-year sentence for attempted robbery, to be served consecutively to his other sentences. (Id.).

         The evidence presented at trial established that, on December 12, 2006, Petitioner drove to a novelty store with Zedric Ward, Dejuan Burrell, and Travis Ratliff.[2] Petitioner and Mr. Ward entered the store carrying handguns. Mr. Ward remained near the door, and Petitioner proceeded to the back of the store, where employee Jesse Ward (Victim) was talking to two customers. Petitioner and Mr. Ward ordered the three men to “empty your wallets, ” and Petitioner shot Victim five times. Victim sustained a fatal gunshot to the head, as well as three shots to his chest and one to his left shoulder. After the shooting, Petitioner and Mr. Ward ran back to the car where Mr. Burrell and Mr. Ratliff were waiting, and they drove away.

         Two days later, Mr. Burrell went to a police station, identified the other men involved, and reported that Petitioner shot Victim. Police officers arrested Mr. Ward and Mr. Ratliff on December 15, 2006, and Petitioner turned himself in to the police on December 21, 2006.

         At the trial in November 2008, the State presented the testimony of Mr. Ward, Mr. Burrell, Mr. Ratliff, the two customers present during the shooting, the medical examiner, and several investigating officers. (Resp’t Ex. A). After the close of the State’s evidence and defense counsel’s announcement that Petitioner wished to testify, the trial court held a bench conference to discuss the admissibility of evidence that, subsequent to turning himself in, Petitioner declined to make a statement. (Id. at 493-94). Defense counsel argued that evidence of post-arrest silence was inadmissible and irrelevant. (Id. at 493). The prosecutor countered that, if the defense presented evidence that Petitioner turned himself in to the police “to show his cooperation, ” then the State “should be allowed to comment upon how he didn’t actually cooperate when he failed to make a statement.” (Id. at 494). The trial court ruled that “the mere fact that he turned himself in doesn’t open the door to post-arrest silence. It may, however, allow [the prosecutor] to inquire as to why, the answer to which might open the door.” (Id.).

         The defense presented two evidence technicians, Petitioner’s girlfriend, and Petitioner. (Id. at 478-532). On direct examination, Petitioner testified that he was home with his girlfriend at the time of the shooting on December 12, 2006. (Id. at 516). Petitioner stated that he went to the Justice Center and then to the police station on December 21, 2006 because his girlfriend’s mother “told me she seen my face on TV and I didn’t know what for and I wanted to come down and see what was, what was going on.” (Id. at 512). Petitioner explained that, when he arrived at the police station, “I stated my name and they asked me what I am here for. I tell them. And they like, we don’t know what you talking about. But I demanded to stay until I got things cleared up.” (Id.).

         Prior to cross-examining Petitioner, the prosecutor approached the bench and asked the trial court whether “the door has been opened” to evidence of Petitioner’s refusal to make a statement. (Id. at 517). Defense counsel renewed his objection, and the trial court overruled it on the ground that Petitioner had opened the door to evidence of post-arrest silence. (Id.). On cross-examination, the prosecutor questioned Petitioner as follows:

[PROSECUTOR]: And it’s also your testimony that you went down[town] to straighten things up down at headquarters?
[PETITIONER]: Just to see what was going on.
[PROSECUTOR]: But I think you testified on direct with your attorney you said I demanded to stay until things cleared up?
[PETITIONER]: Yes.
[PROSECUTOR]: Okay. You refused to make a statement, isn’t that true?
[PETITIONER]: Yes.

(Id. at 527). When the prosecutor asked Petitioner why he hadn’t told the interviewing officer, Det. Jeffrey Stone, that he was at home with his girlfriend at the time of the shooting, Petitioner claimed, “I told him that I was wasn’t there at all, I was with my girlfriend. And he never wrote it on paper or nothing.” (Id. at 529). Petitioner asserted that Det. Stone did not document his alibi because “he didn’t believe me.” (Id. at 530). In rebuttal, the State presented Det. Stone, who testified over defense counsel’s objection that, when he interviewed Petitioner on December 12, 2006, Petitioner neither offered an alibi nor made “any statements.” (Id. at 537-38).

         After the jury found him guilty on all four counts and the trial court denied his motion for judgment of acquittal or a new trial, Petitioner filed an appeal challenging the: (1) sufficiency of the evidence establishing the element of deliberation required for a first-degree murder charge; and (2) admission of evidence of Petitioner’s post-arrest, post-Miranda silence. (Resp’t Ex. C). The Missouri Court of Appeals affirmed the verdict, finding that: (1) evidence that Petitioner carried a handgun into the store and inflicted numerous wounds upon Victim was sufficient to support an inference that Petitioner coolly reflected and deliberated on the shooting; and (2) the State adduced evidence of Petitioner’s post-Miranda silence for the purpose of rebutting evidence that he cooperated with police, and not for the impermissible purpose of providing substantive evidence of his guilt. (Resp’t Ex. F).

         Following the denial of his direct appeal, Petitioner filed a pro se motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. (Resp’t Ex. G at 3-18). Petitioner’s post-conviction counsel filed an amended Rule 29.15 motion, claiming that counsel provided ineffective assistance by: (1) eliciting evidence of Petitioner’s post-Miranda silence; (2) failing to object to improper impeachment of Mr. Ratliff; (3) failing to impeach Mr. Ward by questioning his testimony about the caliber of the gun in his possession; and (4) failing to raise the issue of Petitioner’s distinctive appearance. (Id. at 29-45). Additionally, Petitioner asserted that he had obtained newly discovered evidence because Mr. Ratliff had recanted his testimony that Petitioner was present at the time of the shooting. (Id.). The post-conviction motion court denied Petitioner’s Rule 29.15 motion without an evidentiary hearing. (Resp’t Ex. G at 46-52).

         Petitioner appealed the denial of his post-conviction motion to the Missouri Court of Appeals. (Resp’t Ex. H). On appeal, Petitioner argued that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because trial counsel was ineffective in: (1) opening the door to evidence of his post-Miranda silence; (2) failing to object to the improper impeachment of Mr. Ratliff; (3) failing to impeach Mr. Ward with his inconsistent testimony regarding the caliber of his gun; and (4) failing to present evidence of Petitioner’s distinctive appearance. (Id.). The Missouri Court of Appeals affirmed the denial of Petitioner’s Rule 29.15 motion. (Resp’t Ex. J).

         II. Petitioner’s Grounds for Federal Habeas Relief

         In the present habeas petition, Petitioner asserts the following thirteen grounds for relief:

1. The trial court erred in denying Petitioner’s motion for judgment of acquittal on the first-degree murder count because the State presented insufficient evidence from which a reasonable juror could find that he deliberated before shooting Victim;
2. The trial court erred in admitting evidence of Petitioner’s post-arrest, post-Miranda silence;
3. Trial counsel provided ineffective assistance by eliciting testimony that “allowed the State to comment on [Petitioner’s] post-Miranda silence;
4. The post-conviction motion court erred in denying the claim set forth in Petitioner’s ground three;
5. Trial counsel provided ineffective assistance by failing to object to the State’s impeachment of Mr. Ratliff;
6. The post-conviction motion court erred in denying the claim set forth in Petitioner’s ground five;
7. Trial counsel provided ineffective assistance in failing to impeach Mr. Ward “regarding the caliber of the gun that he was in possession of on December 12, 2006”;
8. The post-conviction motion court erred in denying the claim set forth in Petitioner’s ground seven;
9. Trial counsel provided ineffective assistance by failing to raise the issue of Petitioner’s distinctive appearance;
10. The post-conviction motion court erred in denying the claim set forth in Petitioner’s ground nine;
11. Petitioner “is actually innocent due to newly discovered evidence regarding the recantation statements of State witness Travis Ratliff”;
12. Post-conviction appellate counsel provided ineffective assistance by failing to allege in the amended Rule 29.15 motion that he received ineffective assistance of counsel because trial counsel did not investigate and interview the 911 caller; and
13. Post-conviction appellate counsel provided ineffective assistance by failing to allege that trial counsel was unprepared for trial “due to insufficient funds, inadequate staffing and training, and workload, all of which go to constitute the total breakdown of the Missouri Public Defender System that employed trial counsel.”

(ECF No 1). Respondents assert that grounds 9 and 10 are procedurally barred and Petitioner defaulted on grounds 7, 8, 12, and 13. (ECF No. 9). Respondents further contend that all of Petitioner’s grounds lack merit. Id.

         III. Standard of Review under 28 U.S.C. § 2254

         “In the habeas setting, a federal court is bound by the [Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] to exercise only limited and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner unless the state court's adjudication of a claim: (1) “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”; or ...


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