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Ewing v. Steele

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

September 28, 2016

BYRON EWING, Petitioner,
v.
TROY STEELE[1], Respondent.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Petitioner Byron Ewing's Petition for Writ of Habeas Corpus. [Docs. 1, 7[2].] Respondent filed a response to the Petition for Writ of Habeas Corpus. [Doc. 14.] Ewing filed a Reply Brief. [Doc. 18.] The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 13.] For the reasons set forth below, Ewing's petition for writ of habeas corpus will be denied.

         I. Background

         On May 22, 2009, after a jury trial, Ewing was found guilty of statutory rape in the first degree, child molestation in the first degree, and sexual misconduct involving a child by indecent exposure. (Resp't Ex. B at 78-80.)

         Viewing the facts in the light most favorable to the verdict the following evidence was adduced at trial: On January 30, 2007, Michelle Johnson's ten-year old daughter (S.K.) wrote a letter to Johnson stating that Ewing had raped her.[3] The letter S.K. gave to Johnson, later admitted into evidence without objection, stated as follows:

Mom [Ewing] rape me I didn't tell you when he was out because he said if I tell any body he will kill you when he got put in jail you said you don't want him to be in their for life but I do and It been herting me so I'm fainly telling you so this is a relift. Your baby girl [S.K.].

         Johnson called the police, and S.K. wrote a brief note to the detective, stating that Ewing pulled down her jeans and raped her.

         S.K. was interviewed on February 19, 2007, at the Child Advocacy Center (CAC). S.K. told the interviewer that Ewing raped her on December 22, 2006; described the act; and said that Ewing told her not to tell anyone or he would kill Johnson. On December 22, 2006, Ewing, Johnson, S.K., Johnson's other daughters, a cousin, and an aunt, had been getting ready to travel to Boston, when Johnson took her other daughters to the store, leaving S.K. at home alone with Ewing. When S.K.'s aunt arrived at Johnson's house, S.K. ran out of the house and jumped into her aunt's van, which she refused to leave until Johnson returned from the store.

         In February of 2009, S.K. was watching a video at the prosecutor's office when she wrote a note to the prosecutor, “It happened a lot of times before I formally told my mom when he was loked [sic] up.” S.K. was sent back to the CAC for a second interview on February 12, 2009. S.K. told the interviewer, in detail, that Ewing had sexually assaulted her when she was in the second or third grade and staying in a motel with Johnson and Ewing. S.K. said Appellant told her not to tell anyone or Johnson would get mad. S.K. also recounted another occasion when she was in the basement with Ewing when he masturbated to ejaculation.

         After the jury found Ewing guilty, the trial court sentenced him as a prior and persistent offender, to natural life in prison without the possibility of probation or parole on count I for rape of a child, fifteen years for count II for child molestation, and four years for Count III for indecent exposure. (Resp't Ex. B at 91-93.) All of the sentences run concurrently. (Resp't Ex. B at 92.)

         II. Standard of Review

         “The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91 (2011). “In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013). The Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA) applies to all petitions for habeas relief filed by state prisoners after this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a decision that is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, 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 determination of a factual issue made by a state court is presumed to be correct unless the petitioner successfully rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         For purposes of § 2254(d)(1), the phrase “clearly established federal law refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). “In other words, clearly established federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. at 72. To obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006).

         A state court's decision is “contrary to” clearly established Supreme Court precedent “if the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or ‘confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the] precedent.'” Penry v. Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). A state court decision is an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case. Id. (citing Williams, 529 U.S. at 407-408). “A federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Penry, 532 U.S. at 793. “A state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, ' 28 U.S.C. § 2254(d)(2), only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record.” Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute error is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). AEDPA's highly deferential standard demands that state court decisions be given the benefit of the doubt. Id.

         III. Discussion

         Ewing presents five issues for review. First, he claims ineffective assistance of counsel, because trial counsel failed to call Officer Alim Poindextor as a witness to refute the testimony of the complaining witnesses. He also contends counsel failed to impeach the credibility of state's witness Michelle Johnson on two convictions of false burglary charges. Next, Ewing presents three claims of trial court error. Ewing alleged that the trial court should have declared a mistrial during the state's opening statement to the jury panel. Then, Ewing asserts that the trial court erred by allowing the state to argue to the jury about Ewing's failure not to testify. Finally, Ewing contends the trial court erred when it overruled his objections to the state's misstatement of facts in the closing argument. Respondent contends that Ewing's claims lack merit and the habeas petition should be denied.

         A. Ineffective Assistance of Counsel

         “The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “An accused is entitled to be assisted by an attorney, whether retained or appointed who plays the role necessary to ensure that the trial is fair.” Id. To succeed in a claim “that counsel's assistance was so defective as to require reversal of a conviction, ” a petitioner must establish (1) that the trial counsel's performance ...


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