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Greenlee v. Wallace

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

September 12, 2016

RICHARD GREENLEE, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the petition of Richard Greenlee for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. Procedural Background

         Petitioner 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.

         Petitioner 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.

         II. Factual Background

         On 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 her bedroom.

         At 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.

         Petitioner 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. at 254.

         A jury 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.

         Additional facts will be included as necessary to address petitioner's claims.

         III. Legal Standards

         When a 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 court's determination:

(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.

         A state 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.” Id.

         A 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).

         To 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).

         To 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.”)

         “Taken 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

         IV. Discussion

         Ground 1: Pretrial Publicity and Prosecutorial Misconduct

         In his 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.

         Prior 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.

         Criminal 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 omitted).

         Here, 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.

         Petitioner 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.

         Ground 2: Denial of Due Process and ...


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