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Muhammad v. Cassady

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

August 26, 2016

MIKAL R. MUHAMMAD, Petitioner,
v.
JAY CASSADY, [1] Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Factual Background

         The 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 Hammond's home.
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[2] 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 just “Gube.”
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.[3]

         II. Procedural Background

         In his 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.

         In his 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.

         In an 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.

         A few 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.

         In 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.

         On 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 the scene.

         III. Legal Standards

         A. Standard for Reviewing Claims on the Merits

         Federal 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. § 2254(e)(1)).

         B. Procedural Default

         To 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)).

         IV. ...


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