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Torello v. Cassady

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

September 7, 2016

SANCHEZ TORELLO, Petitioner,
v.
JAY CASSADY and CHRIS KOSTER, [1] Respondents.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE

         This 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 habeas corpus.

         Factual Background

         On 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.

         Procedural History

         Torello 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.

         Petitioner 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).

         Grounds for Relief

         Torello 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.

         This evidence was presented in two instances at trial.

         The 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 ...

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