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Green v. Wallace

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

September 21, 2016

KERRY GREEN, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner Kerry Green's (“Petitioner's”) pro se amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 30). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 22). For the following reasons, the amended petition for a writ of habeas corpus will be denied.

         I. Factual Background

         The following background is taken from the decision of the Missouri Court of Appeals affirming Petitioner's convictions on direct appeal:

In February 2008, Edmond Mack (Victim) shared the upstairs unit of a two-family flat with his friend, Avedou (“Vedo”) Halkmon. Vedo Halkmon's older brother Ronald Halkmon had been living in the downstairs unit with his girlfriend, Peaches. On February 25, 2008, Ronald and Peaches were moving out of the downstairs unit, and Ronald's and Vedo's cousin, Carlos Vaughn was moving in with his girlfriend.
When Vedo arrived home on the evening of February 25, 2008, he saw Ronald standing on the front porch with [Petitioner] and Vaughn. Vedo greeted the three men and continued upstairs to his apartment. Later, Ronald knocked on the door to the upstairs apartment and used Vedo's cell phone to call the landlord and demand the return of his security deposit. After arguing with the landlord for twenty to thirty minutes, Ronald left the apartment. He returned a short time later and asked Vedo for a cigarette. Both times Ronald knocked on the door, Vedo answered it.
A few minutes later, Ronald knocked on Vedo and the Victim's door a third time. Victim answered the door, then headed back up the stairs. Vedo heard Ronald say to Victim, “Let me holler at you for a moment, ” and Victim went back down the stairs. Ronald proceeded to confront Victim about an argument he claimed Victim had with Peaches, saying, “What's that shit going on with you and Peaches?” Victim denied having said anything to Peaches, told Ronald to “go get Peaches” so that she could settle the matter, and headed back up the stairs. Victim said, “You trippin', Ron, ” immediately before Ronald fired a .38 revolver into Victim's back.
After Ronald shot Victim, he pulled Victim down the stairs. Ronald tried unsuccessfully to pull Victim outside, but Victim resisted by wedging his arms against the door. At this point, [Petitioner] and Vaughn went through Victim's jeans pockets. When they had finished, Ronald, [Petitioner], and Vaughn drove away in a burgundy and brown truck that [Petitioner] had been driving.
When Vedo heard the gunshot, he ran to the top of the stairs, shouting repeatedly at Ronald, “I know you ain't just shoot [Victim].” When he saw that Victim had been shot, Vedo ran back inside and called 911. When the police arrived, they found Victim dead, with his right pants pocket turned inside-out.
The State charged [Petitioner], Ronald, and Vaughn under the same indictment. The State charged [Petitioner] and Vaughn each with one count of murder in the second degree, one count of robbery in the first degree, and two counts of armed criminal action. The State charged Ronald with first-degree murder and armed criminal action.
Prior to trial, [Petitioner] filed a motion to sever his case from Ronald's. After a hearing, the trial court denied [Petitioner]'s motion to sever. After a week-long jury trial, the jury found [Petitioner] guilty on all charges. The jury also found [Petitioner]'s codefendants, Ronald and Vaughn, guilty on all charges. The trial court sentenced [Petitioner], as a prior and persistent offender, to thirty years' imprisonment.

Resp't Ex. B, at pp. 4-6.

         II. Procedural Background

         In his direct appeal, Petitioner asserted five claims of trial error. Resp't Ex. A, at p. 2. The Missouri Court of Appeals affirmed the judgment. Resp't Ex. B. On April 1, 2011, Petitioner filed a pro se motion for post-conviction relief. Resp't Ex. C. On July 18, 2011, through counsel, Petitioner filed an amended motion for post-conviction relief, in which he raised several claims of ineffective assistance of counsel and one claim of prosecutorial misconduct. Resp't Ex. D, at pp. 2-11. The motion court denied the amended motion. Resp't Ex. E. Petitioner appealed, Resp't Ex. F, and the Missouri Court of Appeals affirmed the denial of the motion, Resp't Ex. G.

         On April 25, 2013, Petitioner filed his pro se petition in the instant action, in which he asserted eleven grounds for relief. (Doc. 1). On May 8, 2014, with leave of this Court, Petitioner filed an amended petition in which he asserted fourteen grounds for relief: (1) that there was insufficient evidence to convict him of robbery and the accompanying count of armed criminal action; (2) that there was insufficient evidence to convict him of felony murder and the associated count of armed criminal action; (3) that the trial court erred in denying Petitioner's motion to sever his trial from that of his co-defendant, Ronald Halkmon (“Ronald”)[1]; (4) that the trial court erred by allowing the state to introduce evidence concerning the circumstances surrounding Petitioner's arrest; (5) that the trial court erred in not allowing Petitioner the opportunity to present evidence that the day before the offense, Ronald had shot a gun at his girlfriend, Peaches; (6) that Petitioner's direct appeal counsel was ineffective because counsel failed to appeal the trial court's admission of the prior consistent statements of Avedou; (7) that Petitioner's trial counsel was ineffective because she failed to object to the questioning of Detective Jackson with regard to statements made to him by Shante Jennings; (8) that trial counsel was ineffective because she failed to cure the damage done to the defense by the state's opening statement promising the testimony of Shante Jennings; (9) that trial counsel was ineffective because she failed to pursue Petitioner's motion to suppress an in-court identification and to request a ruling on the motion; (10) that trial counsel was ineffective because she failed to investigate and challenge the validity of Petitioner's arrest and to move to suppress all evidence obtained after the arrest; (11) that Petitioner was denied the right to a fair trial due to prosecutorial misconduct based on the prosecutor's failure to disclose that he had lost contact with witness Shante Jennings; (12) that Petitioner was denied the right to a fair trial due to prosecutorial misconduct in that the prosecutor argued facts not in evidence; (13) that Petitioner was denied the right to a fair trial due to prosecutorial misconduct based on impermissible burden-shifting; and (14) that the representation of Petitioner's trial counsel as a whole was such that had cumulative errors not occurred, there would have been a reasonable probability of a different outcome. (Doc. 30).

         III. Legal Standard

         Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by AEDPA [the Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254). Under AEDPA, a federal court may not grant relief to a state prisoner with respect to any claim that was adjudicated on the merits in the state court proceedings unless the state court's adjudication of a claim “(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.” 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established Supreme Court precedents “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision involves an “unreasonable application” of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002). “Finally, a state court decision involves an unreasonable determination of the facts in light of the evidence presented in the state court proceedings only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C. § 2254(e)(1)).

         IV. Discussion

         A. Ground One: Sufficiency of the Evidence-Robbery and Associated Armed Criminal Action Count

         In Ground One, Petitioner argues that his due process rights were violated because there was insufficient evidence to support his convictions for first degree robbery and armed criminal action. Petitioner argues that the state failed to prove that (1) the victim had money in his pocket prior to the shooting, and (2) Ronald shot the victim for the purpose of overcoming resistance to the taking of money. Petitioner raised this claim in his direct appeal, and the Missouri Court of Appeals denied it on the merits. Resp't Ex. B, at pp. 6-8.

         In reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Accord Parker v. Matthews, 132 S.Ct. 2148');">132 S.Ct. 2148, 2152 (2012); Cavazos v. Smith, 132 S.Ct. 2, 6 (2011). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. State law determines the specific elements of the crimes. Fenske v. Thalacker, 60 F.3d 478, 480 (8th Cir. 1995). The federal habeas court's scope of review is very limited. The Court “must presume that the trier of fact resolved all conflicting inferences in the record in favor of the state” and “must defer to that resolution.” Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003) (quotation marks omitted). Furthermore, “a state-court decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the decision was objectively unreasonable.” Parker, 132 S.Ct. at 2152 (quotation marks omitted).

         As Petitioner points out, the verdict director applicable to Count V (robbery in the first degree), Instruction No. 21, instructed the jury to find that the offense of robbery in the first degree had occurred if it found beyond a reasonable doubt that (1) “that on February 25, 2008, [Petitioner] or other persons took money, which was property in the possession of [the victim]”; (2) “that [Petitioner] or other persons did so for the purpose of withholding it from the owner permanently”; (3) “that Ronald Halkmon in doing so used physical force on or against [the victim] for the purpose of overcoming resistance to the taking of the property”; and (4) “that in the course of obtaining the property, Ronald Halkmon was armed with a deadly weapon.” Resp't Ex. A, at p. 71. It further instructed that if the jury found that the offense of robbery in the first degree had occurred and that if it further found beyond a reasonable doubt “that with the purpose of promoting or furthering the commission of that robbery, [Petitioner] acted together with or aided other persons in committing the offense, ” then the jury should find Petitioner guilty of robbery in the first degree. Id. Petitioner does not dispute that the verdict director accurately reflects the elements of the crime under Missouri law.

         Petitioner argues that there was insufficient evidence to prove the first element-that Petitioner or others took money that was in the victim's possession-because the state failed to prove that the victim had money in his possession prior to the shooting. Petitioner also argues that there was insufficient evidence to prove the third element because the state failed to prove that Ronald used physical force against the victim for the purpose of overcoming resistance to the taking of the victim's property. Addressing both arguments, the Missouri Court of Appeals first properly articulated the Jackson standard described above. Resp't Ex. B, at p. 6. It then noted that under Missouri law, the state may prove its case by presenting either direct or circumstantial evidence connecting the defendant to each element of the crime; that the jury is free to make reasonable inferences from the evidence presented; and that an eyewitness account of the theft itself is not necessary to sustain a conviction for first degree robbery. Resp't Ex. B, at p. 7. The Missouri Court of Appeals then stated:

From the evidence presented at trial, reasonable jurors could have found that, prior to the shooting, Victim had money on his person and that [Petitioner] used physical force against Victim for the purpose of preventing resistance to the taking of that money. See, e.g., State v. Weems, 840 S.W.2d 222, 228 (Mo. banc 1992). The evidence showed that Victim worked odd jobs and sold drugs for money and that he “typically” carried about $50 in cash. On February 25, 2008, Ronald summoned Victim down the apartment stairs, where Ronald was standing with [Petitioner] and Vaughn. Immediately after Ronald shot victim, Vedo saw Ronald holding Victim by his shirt collar, while [Petitioner] and Vaughn “were going through” Victim's pants pockets. The three men ran to [Petitioner]'s truck and drove away. Victim's right front pants pocket was pulled inside-out. The investigating police officer testified that he did not find any cash on Victim's person. This evidence is sufficient to allow an inference that Victim had money in his pants pocket, Ronald shot Victim for the purpose of taking that money, and [Petitioner] and/or his codefendants took Victim's money before fleeing the scene.
In his brief, [Petitioner] claims that Ronald used physical force against Victim, not for the purpose of robbing him, but “based upon his anger toward [Victim].” [Petitioner] goes on to argue that he and his codefendants did not form an intent to rob Victim prior to the shooting, rather, he and Vaughn “just took advantage of the fact that Ronald had shot [Victim].” Contrary to [Petitioner]'s argument, “it is enough that the violence to [Victim] was preceded by or contemporaneous with the taking.” State v. Rhodes, 988 S.W.2d 521, 526 (Mo. banc. 1999).

Resp't Ex. B, at pp. 7-8.

         A review of the record shows that the Missouri Court of Appeals' rejection of this claim was reasonable. Viewed in the light most favorable to the verdict, the evidence showed that the victim did odd jobs and sold marijuana, that he typically carried at least $50 in cash, and that immediately after the shooting, Petitioner and one of his co-defendants went through his pants pockets and then fled the scene. See Resp't Ex. I, at Tr. 541-42, 571-73, 708. A reasonable trier of fact could have inferred from that evidence that the victim had money on him and that Petitioner and/or his co-defendants took money from him. Petitioner argues that this case is analogous to State v. Doss, 394 S.W.3d 486 (Mo.Ct.App. 2013), in which the court found insufficient evidence to support a finding that the defendants took wallets from a crime scene. Id. at 493-94. In that case, the only evidence at trial pertaining to wallets consisted of law enforcement testimony that no wallets were located at the crime scene, which was unusual. Id. The Court noted that “there was no evidence indicating that [the victims] had wallets with them that day, or even that they customarily carried the wallets with them.” Id. Doss is distinguishable, because here there was evidence the victim customarily carried money. Moreover, even if this case were not distinguishable from Doss, that would not constitute a showing that the Missouri Court of Appeals' decision was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.

         The Missouri Court of Appeals' finding that Ronald shot the victim for the purpose of overcoming resistance to the taking of his property was also not objectively unreasonable. The evidence showed that Ronald knocked on the door of the victim's apartment and called him to come downstairs, where Ronald was standing with Petitioner and another codefendant; that Ronald shot the victim; and that immediately thereafter Ronald was holding the victim by the victim's collar and trying to pull him out the door while Petitioner and the other co-defendant were going through his pockets. See Resp't Ex. I, at Tr. 560, 564, 568-72. There was also evidence presented that shortly before the murder, Ronald had been very upset that his landlord would not return the money he used for a security deposit, which tends to support a finding of a financial motivation. Id. at Tr. 555-56. Based on this evidence, a reasonable jury could have made the inference that Ronald shot the victim for the purpose of taking his money. Petitioner urges the Court to adopt a different inference-that Ronald shot the victim out of anger. However, on habeas review, this Court must presume that the trier of fact resolved all conflicting inferences in the record in favor of the state, and the Court must defer to that resolution. See Whitehead, 340 F.3d at 536. It is not the role of this Court to reweigh the evidence or make its own inferences. Moreover, as the Missouri Court of Appeals reasonably noted in addressing a related claim, “[f]inancial motivation and enmity are not mutually exclusive motives.” See Resp't Ex. B, at p. 19

         Finally, Petitioner argues that the Missouri Court of Appeals' decision involved an unreasonable determination of the facts because the court stated that a reasonable jury could have found “that [Petitioner] used physical force against Victim.” See Id. at p. 7. As Petitioner argues, there was no evidence that Petitioner ever used force against the victim, and the jury instructions required a finding that Ronald-not Petitioner-was the one who used force against the victim. A reading of the Missouri Court of Appeals' decision as a whole, however, makes it clear that this was a mere typographical error in one sentence; in the rest of its decision, the Missouri Court of Appeals plainly explains that Ronald is the one who shot Petitioner. See Resp't Ex. B, at pp. 7-8.

         Petitioner's argument that there was insufficient evidence to convict him of armed criminal action based on the robbery[2] is entirely based on his argument that there was insufficient evidence to convict him on the robbery charge. That argument therefore fails as well.

         For all of the above reasons, Petitioner is not entitled to relief on Ground One.

         B. Ground Two: Sufficiency of the Evidence-Felony Murder and Associated Armed Criminal Action Count

         In Ground Two, Petitioner argues that there was insufficient evidence to support his conviction of felony murder in the second degree under Mo. Rev. Stat. § 565.021(2), as well as the associated armed criminal action count. Petitioner argues that the victim was not killed in the perpetration of the alleged robbery, but rather, the alleged robbery occurred only after Ronald had deliberately murdered the victim out of anger. Petitioner presented this claim on direct appeal, and the Missouri Court of Appeals denied the claim immediately after addressing the claim in Ground One, stating:

A person is guilty of second-degree, or felony, murder if he committed a felony and, in the perpetration of that felony, another person was killed as a result of the perpetration of that felony. Section 565.021.1(2); Burrell, 160 S.W.3d at 803. As previously discussed, there was sufficient evidence to convict [Petitioner] of robbery in the first degree, the felony underlying his conviction for murder in the second degree. There was also sufficient evidence to find that a person was killed as a result of the perpetration of that felony. We therefore affirm the conviction for second-degree murder.

Resp't Ex. B, at p. 8.

         The Missouri Court of Appeals' decision was not objectively unreasonable. As discussed above with respect to Ground One, there was sufficient evidence from which a reasonable jury could have found that Ronald shot the victim for the purpose of overcoming resistance to the taking of the victim's property, and that Petitioner was guilty of the felony of robbery in the first degree. For the same reasons, a reasonable jury could have found that the victim was killed as a result of the perpetration of the felony of robbery in the first degree. As with Ground One, Petitioner argues that the evidence better supports a different conclusion-that Ronald murdered the victim out of anger. However, as discussed above, in reviewing a sufficiency of the evidence challenge, this Court must defer to the jury's resolution of the possible conflicting inferences.

         For the above reasons, Petitioner is not entitled to relief on Ground Two.

         C. Ground Three: Failure to Sever

         In Ground Three, Petitioner argues that the trial court abused its discretion by denying Petitioner's motion to sever his trial from that of his co-defendant, Ronald. Petitioner raised this argument in his direct appeal, and the Missouri Court of Appeals denied it on the merits. See Resp't Ex. B, at pp. 8-13.

         To the extent that Petitioner's claim is that the trial court should have severed his trial as a matter of Missouri law, it is not cognizable on habeas review. “[I]ssues of joinder and severance are matters of state law.” Smith v. Bowersox, No. 4:12 CV 2089 DDN, 2014 WL 1377810, at *5 (E.D. Mo. April 8, 2014). Violations of state law are not cognizable in federal habeas proceedings. See Lee v. Norris, 354 F.3d 846, 847 (8th Cir. 2004) (“[A] mere violation of state law . . . is not cognizable in federal habeas.”); Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“[W]e have repeatedly held that ‘federal habeas corpus relief does not lie for errors of state law.'”) (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)). “It is not the province of a federal habeas court to reexamine state-court determinations on state law questions.” Id. (quoting Estelle, 502 U.S. at 67-68).

         Neither party has identified any Supreme Court standard for evaluating whether the failure to sever constitutes a violation of a constitutional right, nor has the Court found any. However, some lower courts evaluating such claims have used the standard that applies to alleged due process violations, under which habeas relief is warranted only where the petitioner:

shows that the alleged improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair. To carry that burden, the petitioner must show that there is a reasonable probability that the error complained of affected the outcome of the trial-i.e., that absent the alleged impropriety the verdict probably would have been different.

Brutcher v. Cassady, No. 4:11-CV-1613 ACL, 2014 WL 4823952, at *7-8 (E.D. Mo. Sept. 26, 2014) (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) and finding that the issue of improper joinder “is properly analyzed under the standard for alleged due process violations”). See also Hollins v. Dep't of Corr., 969 F.2d 606, 608 (8th Cir. 1992) (“Regardless of the state law governing severance in state trials, this court will not grant relief to a habeas petitioner on this issue unless he can establish that the failure to grant severance rendered the trial ‘fundamentally unfair.'”); Smith, 2014 WL 137810, at *5 (“[T]o obtain federal habeas corpus relief [based on failure to sever], the joinder must actually render petitioner's state trial fundamentally unfair and hence, violative of due process.”) (internal quotation marks omitted).

         The Court will assume, arguendo, that Petitioner could obtain habeas relief by satisfying the standard applicable to alleged due process violations. However, Petitioner cannot satisfy that standard here, because he cannot show that the failure to sever was so egregious that it rendered his trial fundamentally unfair, nor can he show a reasonable probability that the error complained of affected the outcome of the trial. Petitioner first argues that he was prejudiced by the admission of evidence that Ronald made a threatening phone call to a witness who was saying that Ronald had killed the victim, which Petitioner claims would not have been admissible had his trial been severed from Ronald's trial. However, the Missouri Court of Appeals, applying Missouri law, found that this evidence “would have been admissible in a separate trial.” Resp't Ex. B, at p. 10. This Court may not second-guess the state court's decision on a matter of state law. See Arnold v. Dormire, 675 F.3d 1082, 1086 (8th Cir. 2012) (“We do not second-guess the decision of a Missouri state court on Missouri law.”). Because this evidence would have been admissible even had the trials been severed, the admission of this evidence cannot be used to show that the outcome of Petitioner's trial would have been different had the motion to sever been granted. Petitioner's second argument is that he was prejudiced by the admission of evidence related to letters Ronald wrote to the police stating that Petitioner was the one who had shot the victim. However, the Missouri Court of Appeals found that Petitioner was not prejudiced by the admission of this evidence, because Ronald testified that his ...


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