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Bailey v. Russell

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

August 29, 2016

MAREON L. BAILEY, Petitioner,
v.
TERRY RUSSELL, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the pro se petition of Missouri state prisoner Mareon L. Bailey for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was charged with two counts of first-degree robbery and two counts of armed criminal action. Following a trial held in August 2009, the jury found Petitioner guilty of all counts. Petitioner was sentenced to concurrent sentences of 22 years on all counts.

         For federal habeas relief, Petitioner argues that his constitutional rights were violated by: (1) trial counsel's failure to call an alibi witness, Donesha Robinson; (2) trial counsel's failure to object when Petitioner was cross-examined regarding his prior offenses; (3) postconviction appellate counsel's failure to raise all of Petitioner's claims for postconviction relief on appeal; and (4) postconviction counsel's failure impeach or object to the testimony of Petitioner's trial counsel at the postconviction hearing. For the reasons set forth below, habeas relief will be denied.

         BACKGROUND

         Trial

         The evidence at trial showed the following. On July 31, 2008, shortly after 2:00 a.m., Leigh Kreft and Corey Davis were sitting in Davis's parked car in an alley. Kreft's car was parked behind Davis's car. They were approached by two black males on foot. One of the males pointed a gun at Davis and ordered Kreft and Davis to get out of Davis's car.

         The second male then went into Davis's car and took Davis's wallet and Kreft's cell phone. He also went into Kreft's car, grabbed her purse, and rummaged through it. When he had trouble locating her money, Kreft helped him locate and take the little cash she had from her purse. During that time, Kreft was standing within a foot of the second male and had a clear picture of his face. Both males then left, Kreft and Davis went to the police station to report the incident, and Kreft provided descriptions of the perpetrators.

         A few days after the robbery, Kreft bought a new cell phone and had the contact information from the stolen phone transferred to her new phone. From this information, she learned that the stolen phone had been used beginning approximately 15 minutes after the robbery to call three phone numbers. Kreft provided these phone numbers to Detective Thomas Walsh of the St. Louis Police Department.

         Detective Walsh ran the phone numbers through police databases and discovered that they belonged to individuals Petitioner had previously listed to police as his contacts. Detective Walsh pulled Petitioner's photo and discovered that he matched one of the descriptions provided by Kreft.

         Kreft then identified Petitioner in a photo lineup, and later in a live lineup, as the robber who took her cell phone and money. In court, Kreft testified that she was one hundred percent certain that Petitioner was this robber. Davis was unable to identify anyone.

         Petitioner testified at trial and admitted that he used the stolen cell phone to call his friends and relatives on the night of the robbery, but he stated that he purchased the cell phone from a man named Aaron Ricks. Petitioner testified that, on the night of the robbery, he was standing outside on the street in his old neighborhood[1] with several people, including Donesha Robinson. Petitioner testified that Ricks came to the neighborhood looking to sell a cell phone, that Ricks tried to sell the phone to Robinson but Robinson did not have cash, and that Robinson called Petitioner over to ask whether he wanted to purchase the phone. Petitioner testified that he gave Ricks marijuana for the cell phone and then used the cell phone to make the calls described above, in order to find a ride home.

         Petitioner also testified regarding his prior convictions. On direct examination, he testified that he pled guilty to two charges of possession of a controlled substance in 2005, that he received a sentence of two years' probation on those charges, and that in 2007, he pled guilty to charges of first-degree tampering, resisting arrest, and leaving the scene of an accident.

         In response to questioning on cross-examination, Petitioner denied that his probation on the possession charges was revoked. The State then asked to approach the bench to discuss the line of questioning as to whether Petitioner's probation was revoked as a result of the 2007 charges. The trial court permitted the State to ask whether Petitioner's probation was revoked, and to impeach Petitioner if he denied that it was. On subsequent questioning, Petitioner first denied that his probation was revoked, and the State questioned Petitioner, without objection from Petitioner's trial counsel, as to whether he was on probation when he pled guilty to 2007 charges. Petitioner then responded affirmatively and testified that his probation was revoked as a result of the 2007 charges.

         Direct Appeal

         On direct appeal, Petitioner argued that the trial court erred by (1) granting the State's motion in limine to prohibit Petitioner from testifying that Ricks matched the physical description of the second robber; and (2) overruling Petitioner's objection to Kreft's in-court ...


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