United States District Court, E.D. Missouri, Eastern Division
JONATHAN T. ERVIN, Petitioner,
MICHAEL BOWERSOX, Respondent.
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Jonathan T.
Ervin's Petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody [ECF No.
January 27, 2012, Petitioner Jonathan T. Ervin
(“Petitioner”) was convicted by a jury of
statutory sodomy in the first degree in New Madrid County,
Missouri. He was sentenced to thirty years imprisonment. His
conviction was affirmed by the Missouri Court of Appeals,
Southern District of Missouri. Petitioner filed a timely
motion for postconviction relief pursuant to Missouri Supreme
Court Rule 29.15. After an evidentiary hearing, his motion
was denied. This judgment was affirmed on appeal.
Missouri Court of Appeals for the Southern District of
Missouri described the facts of Petitioner's conviction
On June 4, 2010, [Petitioner] was living at his grandfather
Lawrence's home. [Petitioner's] step-brothers, Terry
and Joshua (Victim), were dropped off by their mother so
Lawrence and [Petitioner] could watch the two boys while she
was at school. Terry was approximately five years old, and
Victim was twenty-one months old.
Lawrence and Terry went out to a shed behind the house to do
some work, leaving [Petitioner] and Victim alone in the
house. When Terry came back inside, Victim and [Petitioner]
were alone in the kitchen. Victim was not wearing a diaper
and had blood running down his leg. [Petitioner] was not
wearing a shirt and warned Terry not to tell anyone about
what he saw.
Victim's mother called to check in before she came to
pick up Victim and Terry. When Terry answered the phone, she
could hear Victim screaming in the background. She asked to
speak to [Petitioner], and he told her Victim was being
fussy. When she arrived, Victim grabbed his diaper bag and
“acted like he just wanted to get out of there.”
Victim's mother had changed Victim's diaper right
before she dropped him off at Lawrence's home and had not
noticed anything unusual. She asked [Petitioner] how Victim
had behaved. [Petitioner] said that Victim had “pooped
all over him.”
Victim was still being fussy as they were leaving
Lawrence's house, and his mother had to “push him
down” to get him buckled into his car seat. When they
arrived at her house, she noticed blood on Victim's foot.
Victim's father left Victim's mother a voicemail that
[Petitioner] had called to tell him that Victim had a bump on
his bottom that they might want to have checked out. When
Victim's mother checked Victim's diaper, Victim
“had stuff dangling from his bottom. It looked like he
had been ripped from the inside out and he had blood all over
his diaper.” She took Victim to the emergency room and
Victim was transferred to Cardinal Glennon Children's
Hospital in St. Louis for treatment.
Victim had bruising and welling - signs of a traumatic injury
- around his rectal area. An endoscopy revealed mucosal
fissure sin the lining of Victim's anus. Dr. Timothy
Kutz, a specialist in child abuse and maltreatment, examined
Victim at Cardinal Glennon. Dr. Kutz concluded that
Victim's “extensive injuries were consistent with
or indicative of penetrating anal trauma.”
[Petitioner] was interviewed by Detective Brandin Caid
(Detective Caid), an investigator with the sheriff's
department. After [Petitioner] was read his Miranda
rights, Detective Caid questioned [Petitioner] about his
interaction with Victim at Lawrence's house that day.
Detective Caid explained Victim's injuries to
[Petitioner], and he initially answered Detective Caid's
questions. [Petitioner] did not respond when asked if he knew
how Victim had been injured. Detective Caid repeated,
“Do you have any idea at all?” [Petitioner] then
responded, “That's what this whole thing is
about?” Detective Caid again explained that they were
trying to figure out how Victim was injured. After a pause,
[Petitioner] said he did not want to talk anymore. The
State v. Ervin, 398 S.W.3d 95, 98-100 (Mo.Ct.App.
2013). A video of Petitioner's interview with law
enforcement was introduced at trial. Petitioner challenged
the introduction of this video on direct appeal, and his
conviction was affirmed. Petitioner now challenges the trial
court's decision to admit the interview into evidence and
his counsel's failure to question his father and
stepbrother about his father's practice of physically
disciplining his children.
state prisoner who believes that he is incarcerated in
violation of the Constitution or laws of the United States
may file a petition for writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254.” Osborne
v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). In order
for a federal court to grant an application for a writ of
habeas corpus brought by ...