United States District Court, E.D. Missouri, Eastern Division
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the petition of Richard
Greenlee for a writ of habeas corpus pursuant to 28 U.S.C.
Richard Greenlee is presently incarcerated at the Southeast
Correctional Center pursuant to the sentence and judgment of
the Circuit Court of St. Francois County. On August 27, 2009,
a jury convicted petitioner of one count of first-degree
statutory sodomy in violation of Mo.Rev.Stat. § 566.062,
for committing deviate sexual intercourse with a person under
the age of 12. The trial court sentenced petitioner as a
prior offender to a 99-year term of imprisonment. Resp. Ex.
A. at 73-74. Petitioner appealed his conviction and, on
December 21, 2010, the Missouri Court of Appeals affirmed.
State v. Greenlee, 327 S.W.3d 602 (Mo.Ct.App. 2010).
Resp. Ex. D.
filed a timely motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15, which the post-conviction
court denied without an evidentiary hearing. Resp. Ex. E at
42-45. On August 14, 2012, the Missouri Court of Appeals
affirmed the denial of post-conviction relief. Greenlee
v. State, 384 S.W.3d 712 (Mo.Ct.App. 2012). Petitioner
timely filed a petition for relief pursuant to 28 U.S.C.
§ 2254, on September 27, 2013, which he amended on
September 28, 2013.
December 22, 2006, petitioner Richard Greenlee and his
girlfriend Maria Page stayed overnight with D.B., her
boyfriend, and her two daughters - the four-year-old victim
H.S., and a 10-month-old infant. H.S. slept on the living
room couch because Ms. Page and petitioner were staying in
about 5:30 in the morning of December 23rd, the victim's
mother got up to get a bottle for the infant. As she passed
the living room, she saw petitioner leaning over H.S. She
testified that she saw him take his hand out of H.S.'s
underwear, put his finger in his mouth, and then put his hand
back in H.S.'s underwear. State v. Greenlee, 327
S.W.3d 602, 608 (Mo.Ct.App. 2010). She roused everyone and
demanded that Ms. Page and petitioner leave. Shortly before
leaving the house that morning Ms. Page asked H.S. what
happened, and she answered that petitioner “touched her
pee-pee.” Resp. Ex. L. at 385.
met with Detective Norma Marberry on January 27, 2007.
Id. at 242. He provided a written statement in which
he said that he got up early on December 23rd to use the
bathroom. He saw the victim asleep on the couch and thought
she looked cold so he decided to carry her back to her bed.
When he tried to pick her up, he noticed that she had her
hands in her underwear. As he tried to lift her, she brushed
her right hand on his face, near his mouth. He “felt
something wet on his face . . . and wiped it . . . and found
that [he] had drooled in [his] sleep.” By then, the
victim had put her hands in her underwear again. Id.
trial held on June 26, 2008, resulted in a mistrial. A second
trial held on August 27, 2009, resulted in conviction. After
trial, the alternate juror told defense counsel that the
jurors began talking about the case during the recess, made
statements indicating bias, and complained about being
hungry. Defense counsel filed the alternate juror's
affidavit with his motion for new trial. Resp. Ex. A at
84-85. On October 16, 2009, the trial court held an
evidentiary hearing on these claims. Resp. Ex. L at 436-77.
Three jurors appeared and were questioned by the prosecutor,
defense counsel, and the court. At the conclusion of the
hearing, the trial court overruled the motion for new trial
and proceeded to sentencing.
facts will be included as necessary to address
claim has been adjudicated on the merits in state court
proceedings, habeas relief is permissible under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d), only if the state
(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;
(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.
court's decision is “contrary to” clearly
established law if “it applies a rule that contradicts
the governing law set forth in [the Supreme Court's]
cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme Court] but
reaches a different result.” Brown v. Payton
(“Payton”), 544 U.S. 133, 141 (2005).
“The state court need not cite or even be aware of the
governing Supreme Court cases, ‘so long as neither the
reasoning nor the result of the state-court decision
contradicts them.'” Brown v. Luebbers, 371
F.3d 458, 461 (8th Cir. 2004) (citing Early v.
Packer, 537 U.S. 3, 8 (2002)). “In the
‘contrary to' analysis of the state court's
decision, [the federal court's] focus is on the result
and any reasoning that the court may have given; the absence
of reasoning is not a barrier to a denial of relief.”
decision involves an “unreasonable application”
of clearly established law if “the state court applies
[the Supreme Court's] precedents to the facts in an
objectively unreasonable manner, ” Payton, 544
U.S. at 141; Williams v. Taylor, 529 U.S. 362, 405
(2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Id. at 406. “Federal habeas
relief is warranted only when the refusal was
‘objectively unreasonable, ' not when it was merely
erroneous or incorrect.” Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529
U.S. at 410-11).
preserve a claim for relief, “a habeas petitioner must
have raised both the factual and legal bases” of his
claim to the state court, and afforded that court a fair
opportunity to review its merits. Abdi v. Hatch, 450
F.3d 334, 338 (8th Cir. 2006) (citations omitted). Where a
claim is defaulted, a federal habeas court will consider it
only if the petitioner can establish either cause for the
default and actual prejudice or that failure to consider the
claim will result in a fundamental miscarriage of justice.
Id. To establish “cause” for the
default, a petitioner generally must “show that some
objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To establish prejudice, the petitioner
“must show that the errors of which he complains
‘worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.'” Ivy v. Caspari, 173 F.3d
1136, 1141 (8th Cir. 1999) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)) (emphasis omitted). To
fall within the fundamental-miscarriage-of-justice exception,
“a habeas 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) (citation omitted).
prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that his attorney's
performance fell below an objective standard of
reasonableness and that he was prejudiced thereby.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
With respect to the first Strickland prong, there
exists a strong presumption that counsel's conduct falls
within the wide range of professionally reasonable
assistance. Id. at 689. The reviewing court must
refrain “from engaging in hindsight or second-guessing
of trial counsel's strategic decisions.”
Abernathy v. Hobbs, 748 F.3d 813, 816 (8th Cir.
2014) (citation omitted). In order to establish prejudice,
petitioner “must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. at 694; see also Paulson v. Newton Corr.
Facility, Warden, 773 F.3d 901, 904 (8th Cir. 2014)
(citation omitted) (“Merely showing a conceivable
effect is not enough; a reasonable probability is one
sufficient to undermine confidence in the outcome.”)
together, AEDPA and Strickland establish a
‘doubly deferential standard' of review.”
Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(quoting Cullen v. Pinholster, 563 U.S.
170, 202 (2011)).
First, under Strickland, the state court must make a
predictive judgment about the effect of the alleged
deficiencies of counsel on the outcome of the trial, focusing
on whether it is “reasonably likely” that the
result would have been different absent the errors.
Strickland, 466 U.S. at 696. . . To satisfy
Strickland, the likelihood of a different result
must be “substantial, not just conceivable.”
Id. Under AEDPA, [federal courts] must then give
substantial deference to the state court's predictive
judgment. So long as the state court's decision was not
“contrary to” clearly established law, the
remaining question under the “unreasonable
application” clause of § 2254(d) is whether the
state court's determination under the Strickland
standard is unreasonable, not merely whether it is incorrect.
Harrington v. Richter, [562 U.S. 86, 101] (2011).
This standard was meant to be difficult to meet, and
“even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”
Id. [at 102].
Id. at 831-32. “When § 2254(d) applies,
the question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland's
deferential standard.” Harrington, 562 U.S. at
1: Pretrial Publicity and Prosecutorial
first claim for relief, petitioner claims that the trial
court erred in failing to dismiss the charges against him for
prosecutorial misconduct based on pretrial publicity.
to the second trial, defense counsel learned that the
prosecutor had discussed petitioner's case on a local
radio show, that the victim's mother worked at the radio
station, and that there had been newspaper articles about the
upcoming trial. On the day of trial, defense counsel filed a
motion to dismiss the charges. Resp. Ex. A at 17 (docket
entry) and 44-45 (motion). At a hearing on the motion, the
prosecutor stated that she did a monthly broadcast in which
she identified upcoming trials, the charges, and the ranges
of punishment. Petitioner's case had been discussed in
this fashion a month or two before trial. With respect to the
newspaper articles, defense counsel stated that the newspaper
article was “about the case itself, ” but did not
further identify its contents. The prosecutor stated that she
played no role in the newspaper articles. The trial court
noted that the newspaper's publications regarding trials
could not be attributed to the prosecution. The court denied
the motion to dismiss and ruled that the impact of the
newspaper articles and broadcast on the potential jurors
would be addressed during voir dire. Resp. Ex. L at 8-9.
During voir dire, two jurors stated that they had heard of
the case (although not through the radio show) and both were
struck for cause. Id. at 78-79.
defendants have a right to trial by an impartial jury.
Irvin v. Dowd, 366 U.S. 717, 722 (1961). “[I]n
most cases involving due process deprivations [the courts]
require a showing of identifiable prejudice to the accused.
Nevertheless, at times a procedure employed by the State
involves such a probability that prejudice will result that
it is deemed inherently lacking in due process.”
Sheppard v. Maxwell, 384 U.S. 333, 352 (1966). In
cases involving extraordinary pretrial publicity or
widespread public hostility toward the defendant, the trial
court should disregard the jurors' assertions of
impartiality. See Irvin, 366 U.S. at 727 (the
“pattern of deep and bitter prejudice” present
throughout the community was reflected during the voir dire
examination); Sheppard, 384 U.S. at 351-52
(“[T]he burden of showing essential unfairness as a
demonstrable reality need not be undertaken when television
has exposed the community repeatedly and in depth to
spectacle[.]”) (internal citations and quotations
the pretrial publicity consisted of a newspaper article and a
radio show, and thus did not rise to the level of
“extraordinary.” See Pruett v. Norris,
153 F.3d 579, 586 (8th Cir. 1998) (Pruett's trial did not
have “circus atmosphere” of the trial in
Sheppard, the trial was held eleven months after the
original crime, and the media coverage was largely
unexceptional). In the absence of extraordinary pretrial
publicity, a habeas petitioner must show that the jurors
actually seated “had such fixed opinions that they
could not judge impartially the guilt of the
defendant.” Id. at 587 (quoting Patton v.
Yount, 467 U.S. 1025, 1035 (1984)). As the Missouri
Court of Appeals noted, petitioner failed to demonstrate that
the jury pool was tainted by pretrial publicity, much less
that the seated jurors had “such fixed opinions”
that they could not be impartial. Greenlee, 327
S.W.3d at 609. The Missouri courts identified the correct
legal standards and made factual findings supported by the
evidence. Petitioner cannot establish that he is entitled to
relief based on his pretrial-publicity claim.
also asserts that the prosecutor “collaborated”
with the media to affect the outcome of his trial in
violation of his due process rights. He argues that the state
courts' determination that no due process violation
occurred is an unreasonable application of Sheppard v.
Maxwell. Petitioner argues that, just as in
Sheppard, the prosecutor's conduct in this case
created a probability that prejudice would result. The
comparison is inapt. In Sheppard, “virulent
publicity” about the murder of Sheppard's wife
“made the case notorious.” 384 U.S. at 354. To
cite a few of the many examples, the press followed the
coroner and defendant during a reenactment of the murder. The
three-day-long inquest was broadcast live from a school
gymnasium. Id. at 338-42. The names and addresses of
venire members were published in the local papers before jury
selection and they received phone calls and letters from the
public regarding the case. Id. at 354, 342-45. By
contrast, in the present case, the prosecutor spoke about the
case on a local radio show that no member of the venire
recalled hearing. Setting aside the propriety of the
prosecutor's appearance on the radio show, the
circumstances here do not rise to the level that prejudice
must be presumed. And, as discussed above, petitioner is
unable to show that he was prejudiced in that both venire
members with prior awareness of the case were struck.
Petitioner's first ground for relief will be denied.
2: Denial of Due Process and ...