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Sapien v. Bowersox

United States District Court, W.D. Missouri, Western Division

October 24, 2016

ANDREW SAPIEN, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

          ORTRIE D. SMITH UNITED STATES DISTRICT JUDGE

         Petitioner, a convicted state prisoner currently confined at the South Central Correctional Center in Licking, Missouri has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 convictions and sentences for two counts of first-degree statutory sodomy, which were entered in the Circuit Court of Platte County, Missouri. Petitioner's convictions were affirmed on direct appeal. Doc. 10-5; State v. Sapien, 337 S.W.3d 72 (Mo.Ct.App. 2011). Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied after an evidentiary hearing (Doc. 10-6, pp. 78-111) and that denial was affirmed on appeal therefrom (Doc. 10-10).

         Statement of Facts

         In affirming Petitioner's convictions and sentences, the Missouri Court of Appeals, Western District, set forth the following facts:

The incidents giving rise to Sapien's sodomy convictions occurred in November and December of 2004. Sapien was living with his father and stepmother; Sapien's biological sister (“M.J.S.”), step-brother (“D.T.”), and stepsister (“M.T.”) also lived in the house. At the time, M.J.S. was 10 years old; D.T. was 11.
The first incident, which occurred in November 2004 after the Thanksgiving break, involved Sapien, M.J.S., and D.T. After watching pornography on the computer, Sapien asked M.J.S. and D.T. whether they could “do [Sapien] a favor.” After initially refusing, M.J.S. and D.T. yielded and went with Sapien to his bedroom in the basement. Sapien closed the door, and told M.J.S. and D.T. that they were not going to be let out of the room until they did what he asked. He told them to pull their pants down, and they complied. Sapien then directed M.J.S. and D.T. to engage in sexual acts with each other. He later sodomized M.J.S. while rubbing her vagina with his hand, and he attempted to sodomize D.T.
M.J.S. described a second incident, which occurred a couple of weeks after the first incident. After viewing pornography, Sapien again approached M.J.S. and D.T. and asked them whether they would do him a favor. Sapien took M.J.S. and D.T. to their parents' bedroom upstairs. Sapien then told D.T. to leave, and took M.J.S. to a downstairs bathroom, lubricated his penis, and sodomized her.
D.T. also described other incidents in which he was sodomized by Sapien. During these incidents, Sapien had D.T. get on his hands and knees while Sapien got on his knees behind D.T. D.T. testified that Sapien's penis was definitely inside D.T.'s “butt” on these other occasions. He testified that these incidents occurred once in M.T.'s bedroom, and otherwise in Sapien's bedroom. D.T. testified that M.J.S. was present during the other incidents, except on one occasion when she acted as a look-out and alerted Sapien and D.T. when Sapien's mother returned home.
Neither M.J.S. nor D.T. initially told anyone about the first incident. Following the second incident, M.J.S. told M.T., her older step-sister, what had happened; however, the girls did not inform either of their parents at that time. M.T. testified at trial that she had herself observed a further incident, which involved Sapien and D.T. in the bathroom in November-December 2004. M.T. witnessed Sapien standing behind D.T. while both had their pants down; D.T. was on his knees, bent over the toilet. M.T. testified that she did not immediately reveal this incident to anyone because Sapien had raped her previously, and she was scared of him.
In January 2005, M.J.S. was again approached by Sapien to “do a job.” This time, she refused and, with M.T., told her parents about Sapien's behavior. Sapien fled the house quickly, not even bothering to put on shoes, despite the fact that it was cold and snowy.
M.J.S. and D.T. were interviewed by police and examined by doctors. The examinations, performed by Dr. Michael Moran, did not show any physical abnormalities, although Dr. Moran testified that sodomization trauma often heals over time.
Jill Hazell, a member of Synergy Services, a child advocacy center, interviewed M.J.S. and D.T. individually on February 10, 2005. These interviews were recorded and transcribed, and admitted in evidence during Sapien's trial.
Sapien was initially charged with two counts of child molestation in the first degree (one for the acts involving M.J.S. and one for the acts involving D.T.). The State subsequently filed a first amended information amending both charges from child molestation in the first degree to the greater offense of statutory sodomy in the first degree. Prior to doing so, the State had notified defense counsel of its intention to file the amended charges, indicating that it would forego filing them if Sapien would enter a plea of guilty to the lesser charges of child endangerment in the first degree and accept a proposed disposition. Sapien rejected the State's plea offer, and the State thereafter filed the enhanced charges.
Sapien filed a motion to dismiss the first amended information, arguing that the filing of the new, heightened charges constituted vindictive prosecution because it was done in response to his rejection of the plea proposal. The motion was denied.

Doc. 10-5, pp. 2-4; Sapien, 337 S.W.3d at 74-75.

         Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is Petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254(e)(1).[1] Because the state court's findings of fact have fair support in the record and because Petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

         Discussion

         Petitioner raises the following grounds for relief: (1) the trial court erred in allowing M.T. to testify that she had been raped previously by Petitioner; (2) the trial court erred in denying Petitioner's motion to dismiss the first amended information, because the amended charges were filed against Petitioner for refusing the plea offer; (3) the prosecution presented a plea offer that could not legally be accepted and filed enhanced charges after Petitioner refused; and (4) trial counsel was ineffective for entering Petitioner's juvenile record into evidence, which supported the State's position for a harsh sentence. Doc. 1, pp. 5-18. Respondent argues that Ground 1 is not cognizable and, alternatively, is without merit and that Grounds 2-4 are without merit. Doc. 10.

         I. Ground 1 is without merit.

         In Ground 1, Petitioner argues that the trial court erred in allowing M.T. to testify that she had been raped previously by Petitioner. Doc. 1, pp. 5, 16. “Questions regarding admissibility of evidence are matters of state law, and they are reviewed in federal habeas inquiries only to determine whether an alleged error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process.” Rousan v. Roper, 436 F.3d 951, 958 (8th Cir.), cert. denied, 549 U.S. 835 (2006) (quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir.1993)). Petitioner must show ...


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