United States District Court, E.D. Missouri, Eastern Division
MIKAL R. MUHAMMAD, Petitioner,
JAY CASSADY,  Respondent.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Mikal R.
Muhammad's (“Petitioner's”) pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (Doc. 1). The parties have consented to
the jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 13). For
the following reasons, the petition for a writ of habeas
corpus will be denied.
following background is taken from the Missouri Court of
Appeals' opinion affirming the denial of Petitioner's
motion for post-conviction relief:
As Tracy Hammond (Hammond), who works the night shift, was
arriving home after going to the grocery store early in the
morning of December 17, 2007, [Petitioner] approached him. As
Hammond was coming upon his front door, [Petitioner] asked
him for the time and the closest liquor store, then pointed a
gun at Hammond and told him to get in the house. [Petitioner]
and another individual then proceeded to bind up Hammond and
his brother Jamie Hammond (Jamie) with duct tape retrieved
from the kitchen. [Petitioner] hit Jamie on the head with the
gun, and they proceeded to ransack and burglarize
The victims identified [Petitioner] in both photographic and
physical lineups. They said they did not know [Petitioner]
and had never met him before. [Petitioner]'s fingerprint
was also discovered on a roll of duct tape and a box of sandwich
bags in Hammond's house. [Petitioner] was arrested and
charged with two counts of first-degree robbery, three counts
of armed criminal action, one count of first-degree burglary,
and two counts of false imprisonment.
At trial, [Petitioner] maintained that he had met Hammond
twice previously. He said he had met Hammond once when he
went to Hammond's house with his cousin Reginald Brown
(Brown) so Brown could converse with Hammond in the kitchen
about some business while [Petitioner] waited in the living
room. [Petitioner] also maintained he was at Hammond's
house playing cards and smoking marijuana with Brown on
December 16, 2007, the day before the incident. [Petitioner]
tried to explain his fingerprint on the roll of duct tape by
testifying that he took a roll of duct tape off of a box of
sandwich bags on a shelf in Hammond's kitchen to retrieve
a baggie to put some marijuana in that Hammond had given him.
Brown had in fact worked with Hammond for a few years and
been to his house several times, once to buy some tires.
Brown returned the tires because they did not fit his vehicle
but told Hammond that his cousin, “G, ” might
want to buy the tires instead. Hammond never met
“G” but spoke with him on the phone the morning
of the robbery regarding “G” buying the tires.
[Petitioner]'s nickname is “Gube Thug” or
The jury found [Petitioner] guilty as charged, to-wit: of two
counts of first-degree robbery, three counts of armed
criminal action, one count of first-degree burglary, and two
counts of false imprisonment.
Resp't Ex. I, at pp. 2-3.
direct appeal, Petitioner asserted a single claim of error
based on the jury instructions given by the trial court.
Resp't Ex. C, at p. 10. The Missouri Court of Appeals
affirmed the judgment in part and remanded in part for
resentencing. Resp't Ex. E.
pro se motion for post-conviction relief, Petitioner
asserted three claims: (1) that his trial counsel was
ineffective for failing to properly preserve a challenge to
the prosecution's late introduction of evidence that
Petitioner's thumb print was found on the duct tape found
at the scene; and (2) that his trial counsel was ineffective
for failing to properly impeach the victims in this case
based on prior inconsistent statements; and (3) that his
trial counsel was ineffective for failing to preserve an
objection based on the double jeopardy clause to
Petitioner's being charged with both robbery and
burglary. Resp't Ex. F, at pp. 11-14.
amended motion, Petitioner's private counsel asserted
five claims of ineffective assistance of counsel: (1)
ineffective assistance of trial counsel based on insufficient
communication between trial counsel and Petitioner prior to
trial; (2) ineffective assistance of trial counsel based on
failure to interview and call Reginald Brown as a witness;
(3) ineffective assistance of trial and appellate counsel
based on their failure to address the trial court's
deviation from the Missouri Approved Instructions; (4)
ineffective assistance of trial counsel based on failure to
investigate and support Petitioner's trial testimony with
cellular phone records of Reginald Brown and Petitioner; and
(5) ineffective assistance of counsel based on trial
counsel's failure to object to the prosecutor's voir
dire examination about DNA and fingerprints. Resp't Ex.
F, at pp. 66-68. The amended motion also included the
statement that Petitioner “herein states and realleges
and reavers all paragraphs and averments contained in [his
pro se] original Motion To Set Aside or Correct Judgment and
Sentence.” Id. at pp. 69-70.
hours later, Petitioner's appointed counsel filed another
amended motion asserting two claims of ineffective assistance
of counsel: (1) ineffective assistance of trial counsel based
on the failure to object and request a mistrial when the
State untimely disclosed on the day of trial that its
examiner had identified Petitioner's fingerprint on the
smooth side of the roll of duct tape found at the scene; and
(2) ineffective assistance of appellate counsel based on the
failure to assert on appeal that the trial court erred in
overruling Petitioner's motion to suppress suggestive
identifications. Resp't Ex. F, at pp. 40-59. However,
Petitioner's appointed counsel also filed an alternative
motion to withdraw as counsel and strike the amended motion
in the event that private counsel had entered for Petitioner
without appointed counsel's knowledge. Resp't Ex. F,
at pp. 31-33.
light of the fact that appointed counsel had moved to
withdraw and private counsel had entered an appearance, both
the motion court and the Missouri Court of Appeals treated
private counsel's amended motion as the one Petitioner
intended for the court to consider. See Resp't
Ex. I, at p. 8 & n.2. The motion court denied the claims
without an evidentiary hearing. Resp't Ex. F, at pp.
71-80. The Missouri Court of Appeals affirmed the motion
court's decision. Resp't Ex. I.
September 13, 2013, Petitioner filed his pro se
petition in the instant action. Petitioner asserts six
grounds for relief: (1) that the motion court erred in
denying his motion for post-conviction relief without an
evidentiary hearing, because he pleaded facts supporting his
claim that trial counsel was ineffective for failing to
interview and call Reginald Brown as a witness; (2) that the
motion court erred in denying his motion for post-conviction
relief without holding an evidentiary hearing, because
Petitioner pleaded facts supporting his claim that trial
counsel was ineffective based on trial counsel's failure
to investigate and support Petitioner's trial testimony
with the cell phone records of Reginald Brown and Petitioner;
(3) that the motion court erred in denying his motion for
post-conviction relief without issuing findings of fact and
conclusions of law on Petitioner's allegation that his
trial counsel was ineffective for failing to object and to
request a mistrial when the State untimely disclosed on the
day of trial that the examiner had found one of
Petitioner's fingerprints on the roll of duct tape found
at the crime scene; (4) that Petitioner was denied effective
assistance of counsel when trial counsel failed to impeach
Tracy Hammond with his prior inconsistent statements; (5)
that Petitioner was denied effective assistance of counsel
when trial counsel failed to impeach Jamie Hammond with his
prior inconsistent statements; and (6) that the prosecuting
attorney violated Brady v. Maryland by not
disclosing until the day of trial that Petitioner's
fingerprint had been found on the roll of duct tape found at
Standard for Reviewing Claims on the Merits
habeas review exists only “as ‘a guard against
extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal.'” Woods v. Donald, 135 S.Ct. 1372,
1376 (2015) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). Accordingly,
“[i]n the habeas setting, a federal court is bound by
AEDPA [the Antiterrorism and Effective Death Penalty Act] to
exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327
F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254).
Under AEDPA, a federal court may not grant relief to a state
prisoner with respect to any claim that was adjudicated on
the merits in the state court proceedings 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 (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d). A state court decision is “contrary to”
clearly established Supreme Court precedents “if the
state court applies a rule that contradicts the governing law
set forth in [the Supreme Court's] cases” or
“if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[the Supreme Court's] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Brown
v. Payton, 544 U.S. 133, 141 (2005). A state court
decision involves an “unreasonable application”
of clearly established federal law if it “correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case.” Williams, 529 U.S. at 407-08; see
also Bell v. Cone, 535 U.S. 685, 694 (2002).
“Finally, a state court decision involves an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it
is shown that the state court's presumptively correct
factual findings do not enjoy support in the record.”
Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.
2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39
(2006) (noting that state court factual findings are presumed
correct unless the habeas petitioner rebuts them through
clear and convincing evidence) (citing 28 U.S.C. §
preserve a claim for federal habeas review, a state prisoner
must present that claim to the state court and allow that
court the opportunity to address the claim. Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state
procedural rules, any claims not properly raised before the
state court are procedurally defaulted.” Id.
The federal habeas court will consider a procedurally
defaulted claim only “where the petitioner can
establish either cause for the default and actual prejudice,
or that the default will result in a fundamental miscarriage
of justice.” Id. (citing Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v.
Groose, 75 F.3d 408, 41 (8th Cir. 1996) (en banc)). To
demonstrate cause, a petitioner must show that “some
objective factor external to the defense impeded [the
petitioner's] efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To establish prejudice, a petitioner must
demonstrate that the claimed errors “worked to his
actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982);
accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir.
1999). Lastly, in order to assert the fundamental miscarriage
of justice exception, a 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) (quoting
Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).