United States District Court, E.D. Missouri, Eastern Division
LENN A. IVY, Petitioner,
JAY CASSADY, Respondent.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
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.
Introduction and Background
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.
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
[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).
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
(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
(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. 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 ...