United States District Court, W.D. Missouri, Western Division
OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF
D. SMITH UNITED STATES DISTRICT JUDGE
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).
affirming Petitioner's convictions and sentences, the
Missouri Court of Appeals, Western District, set forth the
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
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.
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). 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.
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.
Ground 1 is without merit.
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 ...