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Ivy v. Cassady

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

September 26, 2016

LENN A. IVY, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Lenn A. Ivy's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Docs. 1, 4). The Government has responded (Doc. 17), and Petitioner has filed a reply (Doc. 20). For the following reasons, Petitioner's section 2254 petition is DENIED and this action is DISMISSED with prejudice.

         I. Introduction and Background

         On April 14, 2010, a jury found Petitioner guilty of one count each of second-degree murder and armed criminal action (Doc. 4; Resp. Ex. B at 175-78). On April 14, 2010, Petitioner filed a motion for judgment of acquittal notwithstanding the jury's verdict, or in the alternative, motion for a new trial (Resp. Ex. B at 176-78). The trial court denied the motion, and on May 28, 2010, sentenced Petitioner to life in prison on the second-degree murder count, and fifty years in prison on the armed criminal action count, both sentences to be served concurrently (Id. at 176-83). Both counts arose out of the shooting death of Bruce McCaleb.

         Petitioner filed a direct appeal, raising one point of error: that the trial court erred by overruling his challenge to the prosecutor's peremptory strike of an African-American venireperson in violation of Batson v. Kentucky, 476 U.S. 79 (1986) (Resp. Ex. C at 1-32). The Missouri Court of Appeals, finding no error of law, affirmed the trial court's judgment (Resp. Ex. E). The Court of Appeals summarized Petitioner's Batson challenge as follows:

[Petitioner] raised his Batson challenge as to two peremptory strikes made by the State, identifying these venirepersons and [Petitioner] as African-Americans. The trial court made a complete record as to the proceedings. The State proffered its race-neutral explanations for each individual. The trial court conducted a further inquiry as to [Venireperson 1]'s ability to sit as a juror in light of an apparent disability. The State, being satisfied of [Venireperson 1]'s ability to serve, withdrew its strike against him and struck another young, Caucasian, female venireperson instead. Additionally the State prof[f]ered its race-neutral reason for striking [Venireperson 2]. The State explained that it believed younger people are more liberal and less likely to return a guilty verdict. The age of a venire person is considered a race-neutral factor that may be considered when making peremptory strikes.
After the State proffered its race-neutral reasons for striking [Venireperson 2], [Petitioner] identified two similarly situated Caucasian venirepersons who were not struck by the State. However, one of the identified venirepersons was struck by the State for the same youthful reasons after the State withdrew its challenge of [Venireperson 1]. The State responded that it would be unable to strike every young person within a venirepanel.

(Id. at 6-7).

         On August 22, 2011, Petitioner filed a pro se motion to vacate, set aside, or correct the judgment or sentence (Resp. Ex. F at 5-34). In his pro se motion, Petitioner raised nineteen grounds for relief, including, as relevant, each of the claims he now raises in his § 2254 petition. Counsel was appointed for Petitioner (id. at 35), and counsel filed an amended motion to vacate, set aside or correct judgment or sentence and a request for an evidentiary hearing pursuant to Missouri Supreme Court Rule 29.15, asserting two claims:

(1) Trial counsel was ineffective by failing to interview, endorse, and call as witnesses Ms. Rosie Sims, Ms. Tasha Holder, and Mr. Lenn A. Ivey, Sr. (collectively, “alibi witnesses”), all of whom were willing and available to testify that Petitioner was in Indiana when McCaleb was shot.
(2) Trial counsel was ineffective by eliciting, and failing to object to, testimony that Petitioner had remained silent after he was warned that he had the right to do so.[1]

(id. at 39-56). On December 1, 2011, the motion court denied Petitioner's motion without an evidentiary hearing (Id. at 57-63). The motion court summarized the facts of Petitioner's case as follows:

The evidence at [Petitioner's] trial was that Charles Robinson, his father Bruce McCaleb and Takaila went to the Schnucks parking lot at Natural Bridge and Union on October 9, 2008 to meet someone known as CJ (Robert Saunders) and purchase crack cocaine. Takaila, who was a friend of Robinson's, went into a Foot Locker store and then returned to the car. Mr. Robinson's father got out of the car and walked across the parking lot to talk to a young lady. Another vehicle pulled in and parked next to their car, a person got out of the car and the person said something to Mr. Robinson. Mr. Robinson and [Petitioner] walked to the rear of the car. Bruce McCaleb looked at the drugs [Petitioner] had, and McCaleb said he did not want the drugs. [Petitioner] put a gun to McCaleb's head and said “give it up.” Takaila got out of the car and went to the trunk to get a purse which she brought back to the car. [McCaleb] said to [Petitioner], “if you was gonna kill me, kill me.” [Petitioner] shot [McCaleb] in the head, and Takaila and Robinson ran off. [Petitioner] pointed the gun at Robinson, the gun jammed, and [Petitioner] then went through [McCaleb's] pockets. These events were testified to by both Charles Robinson and Takaila, and the jury was shown a surveillance video.
Robert Saunders testified at the trial that he went to the Schnucks parking lot with [Petitioner], his daughter and his girlfriend Tamika.[2] He said they had gone to the parking lot to make a drug transaction. After they arrived, [Petitioner] got out and went to meet Robinson. [Petitioner] got into the car that [Robinson], [McCaleb] and Takaila were in, Saunders heard shots fired, and Saunders sped away. He later called the police because he did not want to be involved with what happened in the parking lot.
Tamika also testified at the trial. She knew [Petitioner] because [Petitioner] was a friend of her boyfriend[, Saunders]. She stated that [Petitioner] got out of their car, got into the car next to theirs and she heard a gunshot.
Detective Scott Sailor testified at the trial that [Petitioner] made a voluntary statement after he was arrested several months later in Indianapolis, that if the officers had seen the surveillance video “you should have seen the fight inside the ...

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