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Stallone v. Wallace

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

October 27, 2016

VIRGIL A. STALLONE, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Missouri State prisoner Virgil A. Stallone's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

         On June 9, 2011, a jury in the Circuit Court of St. Louis County, Missouri, found Petitioner guilty of two counts of first-degree statutory sodomy, two counts of first-degree child molestation, two counts of first-degree sexual misconduct, and one count of second-degree child molestation. On July 15, 2011, Petitioner was sentenced to two terms of twenty five years' imprisonment, two terms of fifteen years' imprisonment, and three terms of one year imprisonment, with all terms to run concurrently. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Stallone, 376 S.W.3d 705 (Mo. App. 2012). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied after an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Stallone v. State, 464 S.W.3d 279 (Mo. App. 2015).

         Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston, Missouri. As the Court construes the instant petition for writ of habeas corpus, Petitioner raises the following twenty-five claims for relief:

(1) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to interview or present witnesses;
(2) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to oppose the State's joinder of charges;
(3) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the use of the girls' testimony, signed statements and videos;
(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to secure documents and material from Petitioner's prior counsel;
(5) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to allow Petitioner input during jury selection;
(6) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to impeach the State's witnesses with conflicting statements they made to the police, to the CAC representative, during the preliminary hearing, or during the trial itself;
(7) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the State's use of hearsay, leading questions, and perjured testimony;
(8) That Petitioner received ineffective assistance of counsel, in that trial counsel attempted to prohibit Petitioner from testifying at trial;
(9) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to present college records demonstrating Petitioner did not meet his wife until 1996;
(10) That Petitioner received ineffective assistance of counsel, in that trial counsel operated under a conflict of interest and encouraged Petitioner to plead guilty;
(11) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to investigate the propensity of the State's witnesses to lie;
(12) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to talk to Petitioner's previous employers regarding his character around children;
(13) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to obtain the victims' school records, or have them evaluated by an “independent psychological agency”, to show they never exhibited symptoms of sexual abuse;
(14) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to obtain an interpreter to allow trial counsel to speak with Petitioner's witnesses;
(15) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to aid Petitioner when he complained he could not hear everything that transpired during his trial due to a hearing impairment;
(16) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to assert at trial that Petitioner was coerced into writing a statement for the police;
(17) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to present to the jury evidence that there was over an hour missing from the taped interrogation;
(18) That Petitioner received ineffective assistance of counsel, in that appellate counsel failed to raise the joinder issue on direct appeal;
(19) That Petitioner received ineffective assistance of counsel, in that appellate counsel failed to raise on direct appeal the fact that victim N.B. testified Petitioner did nothing to her;
(20) That the trial court erred in allowing the joinder of charges;
(21) That the trial court erred in admitting the girls' testimony and statements;
(22) That the trial court erred in admitting Petitioner's taped and signed statements;
(23) That Petitioner was denied due process of law, as his jury did not represent a fair cross-section of the St. Louis County community;
(24) That Petitioner was denied due process of law, as he was denied his right to confront and cross-examine witnesses when the prosecutor introduced hearsay testimony; and
(25) That Petitioner was denied due process of law, as the indictment was insufficient.

         The Court will address the claims in turn.

         DISCUSSION

         I. Claims Addressed on the Merits

         A. Ground 21

         As stated above, in Ground 21 of his petition Petitioner asserts that the trial court erred in admitting the girls' testimony and statements. Petitioner raised this claim on direct appeal of his conviction. The Missouri Court of Appeals first described the factual and procedural background of Petitioner's case as follows:

M.B. is Defendant's[1] stepdaughter. J.B. and N.B. are M.B.'s children and Defendant's granddaughters, who were eight and seven at the time of trial. V.R. is Defendant's sister-in-law. The sexual offenses at issue occurred between 1995-1998, 2000-2001, and 2008-2009.
On March 1, 2009, V.R. was going to a birthday party for Defendant's grandson. Defendant came alone to pick up V.R. from her house. While in her house, Defendant touched V.R.'s breasts and told her that he loved her. V.R. put Defendant's hands down at his side, pushed him back, and said, “You are my sister's husband.” The following day, March 2, 2009, V.R. told her sister what had happened. V.R. called the police and reported Defendant. Shortly thereafter, Defendant was charged with sexual misconduct, read his Miranda rights, and transported to the police station.
At the police station, Defendant signed a waiver of his Miranda rights and admitted to touching V.R.'s breasts. He also admitted that he had fondled M.B. a few years earlier. Defendant wrote a statement admitting that he had touched V.R.'s breasts. Police attempted unsuccessfully to contact M.B. to investigate the incident. In August 2009, M.B. finally spoke with police and revealed that she was sexually abused when she was growing up. M.B. was uncertain whether she wanted to prosecute.
On November 5, 2009, M.B. called police and reported that J.B. and N.B. had stated that Defendant had touched them inappropriately. M.B. came to the station the next day and told police what the victims had reported. On November 18, 2008 (sic), Beverly Tucker (Tucker) from the Child Advocacy Center (CAC) interviewed J.B. and N.B. On November 19, 2009, police interviewed Defendant concerning the reported incidents.
On September 3, 2010, Defendant was charged by information in lieu of indictment with three counts of first-degree statutory sodomy (Counts I-III), two counts of first-degree sexual molestation (Counts IV-V), three counts of first-degree sexual misconduct (Counts VI-VIII), and one count of second-degree child molestation (Count IX) against four separate victims: M.B., V.R., J.B., and N.B. The trial court entered an order of nolle prosequi as to Count II and ordered that the remaining counts be renumbered accordingly. Following the close of all evidence, instructions, and argument by counsel, the jury found Defendant guilty on all counts, except Count VII. Defendant was sentenced to a total of twenty-five years' imprisonment.

(Resp. Exh. E, PP. 2-3). The Missouri Court of Appeals went on to deny Petitioner's claim as follows:

In his first point, Defendant argues the trial court erred in admitting J.B.'s and N.B.'s out-of-court statements into evidence because the statements did not provide sufficient indicia of reliability with respect to the time, content, and circumstances of the statements and were therefore inadmissible as substantive evidence under Section 491.075. Specifically, Defendant challenges the admission of the testimony of M.B., Defendant's stepdaughter, and Tucker, an interviewer with the CAC, as to the victims' statements concerning the alleged offenses as well as the admission of State's Exhibit 4, the videotape of J.B.'s forensic interview. We disagree.
Review of the trial court's decision to admit a child's statements under Section 491.075 is for an abuse of discretion. State v. Sanders, 126 S.W.3d 5, 13 (Mo. App. W.D. 2003). Pursuant to Section 491.075:
1. A statement made by a child under the age of fourteen relating to an offense under chapter 565, 566 or 568, RSMo, performed with or on a child by another, not otherwise admissible by statute or court rule, is admissible in evidence in criminal proceedings in the courts of this state as substantive evidence to prove the truth of the matter asserted if:
(1) The court finds, in a hearing conducted outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) (a) The child testifies at the proceedings;
Section 491.075.1. Missouri courts have adopted a totality of the circumstances test to determine the reliability of a child's out-of-court statements for the purposes of Section 491.075, including consideration of several non-exclusive factors: (1) spontaneity and consistent repetition; (2) the mental state of the declarant; (3) the lack of a motive to fabricate; and (4) knowledge of subject matter unexpected of a child of similar age. State v. Sprinkle, 122 S.W.3d 652, 661 (Mo. App. W.D. 2003). The lapse of time between when the acts occurred and when the victim reported them is also a factor to consider. Id.
With regard to the first factor, spontaneity and consistent repetition of the statements, Defendant argues that the victims' disclosures were in response to coercive questioning by someone “whose viewpoint was colored by antipathy toward [Defendant].” In determining the admissibility of the statements under Section 491.075, the trial court must only rely on the testimony from the 491 hearing, and in reviewing the decision, we must do so as well. Id. Here, based on our review of the hearing transcript, the victims' disclosures to M.B. were spontaneous. M.B. testified that N.B. mentioned the scratching on her abdomen of her own accord after it happened and without coaxing. Similarly, M.B. testified that on a separate occasion J.B. volunteered that Defendant had touched her after M.B. and J.B.'s father had asked J.B. about a schoolmate inappropriately touching her in her private areas. Contrary to Defendant's assertions, there is no support in the hearing transcript that M.B.'s (sic) responses were the result of leading questions or suggestion.
With regard to the second factor, the mental state of the declarant, Defendant incorrectly argues that “there was no evidence that the [victims] experienced any trauma surrounding their relationship with [him], or anything occurring around the time of the alleged acts.” At the time of her initial disclosure, N.B. complained that she suffered a scratch from her zipper when Defendant held her too tight “where she peepees from.” Moreover, nothing from the hearing transcript suggests that the victims suffered no trauma when Defendant touched them inappropriately.
Finally, with regard to the third factor, motive to fabricate, and the fourth factor, use of terminology unexpected of a child of a similar age, again nothing from the hearing transcript suggests that the victims' out-of-court statements were unreliable or unexpected given the victims' ages.
Considering the four applicable factors and the totality of the circumstances, J.B.'s and N.B.'s statements to M.B. and J.B.'s statements to Tucker in the forensic video provided sufficient indicia of reliability. Finally, Defendant argues that he would have been acquitted on Counts II through IV without the hearsay statements. The record proves otherwise. We find no abuse of discretion. Point I is denied.

(Id., PP 3-5).

         With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in pertinent part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim B
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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).

         Upon consideration, the Court finds the decision of the Missouri State court did not involve an unreasonable application of clearly established federal law. “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68 (citations omitted). The admissibility of evidence is a matter of state law, and thus does not form a basis for habeas relief unless the trial error infringed on a specific constitutional protection[2], or was so great as to amount to a denial of due process. Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir.), cert. denied, 549 U.S. 1079 (2006).

         In this case, Missouri law allows for the introduction of hearsay testimony under Mo. Rev. Stat. § 491.075.[3] The Missouri Court of Appeals evaluated the admissibility of J.B.'s and N.B.'s statements to M.B. and Tucker in light of § 491.075, and found that it was not error. When viewed in consideration of all the evidence, the admission of the statements did not rise to the level of a specific constitutional violation or amount to a denial of due process. Furthermore, the admission was not outcome-determinative, in light of the testimony of the victims at trial and Petitioner's confession to the crimes charged. The Court therefore will deny habeas relief on this claim.

         B. Ground 22

         As stated above, in Ground 22 of his petition Petitioner asserts the trial court erred in admitting Petitioner's taped and signed statements. Petitioner raised this claim on direct appeal of his conviction, and the Missouri Court of Appeals denied the claim as follows:

In his second point, Defendant argues the trial court erred in overruling his motion to suppress and in admitting into evidence his statement to police because said statement was involuntary and induced by implied promises. We disagree.
When reviewing a trial court's ruling on a motion to suppress, the inquiry is limited to whether the court's decision is supported by substantial evidence. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). Deference is given to the trial court's superior opportunity to determine the credibility of witnesses. Id. As in all matters, a reviewing court gives deference to the trial court's factual findings and credibility determinations, but reviews questions of law de novo. Id. The test for the voluntariness of a confession is whether, under the totality of the circumstances, the defendant was deprived of free choice to admit, to deny, or to refuse to answer and whether physical or psychological coercion was of such a degree that the defendant's will was overborne at the time he confessed. Id.
Here, the record reflects that Defendant's statements were voluntary. While Defendant asserts that his confession to the acts with J.B. and N.B. was coerced by implied promises that he would receive counseling and treatment, the record shows that there was no express or implied promise of leniency made. State v. Simms, 131 S.W.3d 811, 814 (Mo. App. W.D. 2004) (a confession is inadmissible if it is procured by a direct or implied promise of leniency).
Defendant was informed that he was being placed under arrest, but stated that he wanted to talk to the detectives and cooperate with the investigation. Defendant admitted that no promises had been made to him and he signed a statement expressly stating that he had not been threatened or mistreated in any fashion, nor had any gratuities been promised to him in return for making the statement. Moreover, he read that portion of the form out loud, and acknowledged that he understood it. Under the totality of the circumstances, Defendant's confession to the acts involving V.R., M.B., J.B. and N.B. was completely voluntary. Point II is denied.

(Resp.'s Exh. E, PP. 6-7).

         As stated above, with respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in pertinent part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim B
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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).

         “Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment.” Thatsaphone v. Weber, 137 F.3d 1041, 1046 (8th Cir.) (internal quotation marks and citations omitted), cert. denied, 523 U.S. 1130 (1998). As noted above, the state courts concluded that Petitioner's inculpatory statements were not coerced by police activity, and on habeas review this Court “give[s] ‘great weight to the considered conclusions of a coequal state judiciary.'” Id. at 1047 (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)). This conclusion, supported by the record, was not based on an unreasonable determination of the facts or an unreasonable application of clearly established federal law. Petitioner's claim to the contrary is without merit, and so Ground 22 must be denied.

         C. Ground 1

         As stated above, in Ground 1 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to interview or present witnesses. Petitioner raised this claim before the 29.15 post-conviction motion court, and the court denied the claim as follows:

10. In paragraph 8(a)(1) of his Amended Motion Movant[4] alleges ineffective assistance of counsel based upon trial counsel's failure to call character witnesses. Movant claims that as a result, he was prejudiced….
11. To prevail on his claim of ineffective assistance of counsel for failure to call character witnesses, Movant must show that counsel failed to provide reasonably effective assistance, and Movant was thereby prejudiced. Moore v. State, 927 S.W.2d 939, 943 (Mo. App. 1996). Absent a showing to the contrary, counsel is presumed to have provided effective assistance. Id. Counsel will not be found to have been ineffective for making trial strategy decisions, and the selection of witnesses is a question of trial strategy. State v. Harris, 854 S.W.2d 853, 857 (Mo. App. E.D. 1993). The decision not to call character witnesses in Movant's case is “virtually unchallengeable” as a matter of trial strategy. Id. In Harris, just as in Movant's case, the character witnesses testified at the evidentiary hearing to the defendant's character, but not directly to whether the defendant committed the charged crimes. Id. At the evidentiary hearing, Movant's trial counsel Kelly Hritz testified that the decision not to call the character witnesses was intentional trial strategy.
Additionally, Movant must establish a reasonable probability that but for any ineffective assistance, the result of the proceeding would have been different. Case v. State, 780 S.W.2d 681, 682 (Mo. App. S.D. 1989). A court is required to deny post-conviction relief unless the Movant has succeeded in proving the burden that he was prejudiced by the ineffective assistance. Frederick v. State, 754 S.W.2d 934, 936 (Mo. App. E.D. 1988). In Frederick, the motion was denied because the evidence of appellant's guilt was “overwhelming.” The court noted, “Not only did the victim, appellant's adopted daughter, testify in detail to the three instances of sexual abuse, but the State produced evidence of admissions made by appellant on separate occasions to his wife, to his pastor, and to his brothers and sisters.” Id. The evidence in Movant's case is even stronger than the overwhelming evidence in Frederick. In Movant's case, the victims all testified in detail about the instances of sexual abuse, and the Movant made a videotaped confession. As in Frederick, “the failure to investigate and call witnesses to testify to appellant's good character and reputation falls far short of undermining confidence in the verdict….” Id.

(Resp.'s Exh. G, PP. 79-80). Petitioner advanced the claim on appeal of the denial of his Rule 29.15 motion, and the Missouri Court of ...


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