United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Petitioner Byron Ewing's
Petition for Writ of Habeas Corpus. [Docs. 1, 7.] 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
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.)
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
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
called the police, and S.K. wrote a brief note to the
detective, stating that Ewing pulled down her jeans and raped
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.
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
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.)
Standard of Review
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).
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).
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.
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.
Ineffective Assistance of Counsel
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