United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE
case is before the Court on the petition of Sanchez Torello
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He is currently serving multiple terms of imprisonment
following convictions for felonious restraint, armed criminal
action, and attempted rape. Torello asserts he is entitled to
habeas corpus relief because he received ineffective
assistance of counsel when trial counsel elicited and then
failed to object to evidence regarding his prior misdemeanor
assault conviction. The Missouri Court of Appeals considered
his claim of ineffective assistance and rejected it on the
merits, finding he could not show he was prejudiced by the
conduct of his trial counsel. I conclude that the decision of
the Missouri Court of Appeals was not contrary to Federal law
or based on an unreasonable determination of the facts.
Therefore, I will deny Torello's petition for the writ of
January 31, 2007, petitioner Torello met with his estranged
wife, the victim in the case, in his S.U.V. parked at her
workplace. When the victim sought to leave the vehicle after
this meeting, Torello refused to allow her to exit, grabbing
her wrist and reaching for the console of the vehicle where
she was aware that Torello kept a loaded gun. With the victim
still in the passenger seat, Torello drove away on the
highway for hours, occasionally stopping and making
threatening statements to the victim. At one point, Torello
forced the victim to lie in the back seat and remove her
pants, attempting to have sex with her and instructing her to
perform oral sex. After this occurrence, Torello drove back
toward the city, eventually stopping near a church where they
had previously received counseling. Torello pulled the gun
out of the console, grabbed the victim by her hair and hit
her head with the gun, stating something to the effect of
“don't make me kill you.” Eventually the
victim was able to gain the attention of the church pastor,
who intervened and eventually was able to confiscate
Torello's gun. The victim then ran into the church, where
she hid until Torello left.
was charged with felonious restraint, armed criminal action,
and attempted forcible rape. At trial, a jury found Torello
guilty on all three counts, and the trial court sentenced him
as a misdemeanor prior offender to concurrent terms of seven
years in prison each for felonious restraint and armed
criminal action, and to a consecutive term of twenty-five
years in prison for attempted forcible rape. (Resp. Exh. G,
p. 43-44). On direct appeal, the Missouri Court of Appeals
affirmed Torello's convictions, but remanded the case for
re-sentencing based upon an erroneous finding by the trial
court that Torello was a persistent misdemeanor offender.
Torello v. Missouri, 334 S.W.3d 903 (Mo.Ct.App.
2011) (Resp. Exh. K). Torello was subsequently resentenced to
concurrent terms of five years each for felonious restraint
and armed criminal action, and a consecutive term of twenty
years for attempted forcible rape.
filed a motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15. The motion court entered
judgment denying Petitioner's post-conviction motion.
(Resp. Exh. N, p. 138-142). The Missouri Court of Appeals
affirmed the decision of the motion court. Missouri v.
Torello, 455 S.W.3d 28 (Mo.Ct.App. 2014) (per curiam)
(Unreported Supp. Mem. at Resp. Exh. R).
raises a single claim of ineffective assistance of counsel.
Although his petition lists this as three separate claims,
all three are simply aspects of his argument that counsel was
ineffective for allowing the jury to hear and consider the
evidence of his prior assaultive behavior.
evidence was presented in two instances at trial.
first instance occurred in an exchange between defense
counsel and the victim during cross-examination regarding the
gun in the vehicle at the time of the assault:
Q: And, actually, is this 9-millimeter, this was a gun that
you bought. Is that right?
A: It is.
Q: This is a gun in your ...