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Ervin v. Bowersox

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

November 21, 2016

JONATHAN T. ERVIN, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE.

         This 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. 1].

         I. BACKGROUND

         On 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.

         The Missouri Court of Appeals for the Southern District of Missouri described the facts of Petitioner's conviction as follows:

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 interview ended.

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.

         II. STANDARD

         “A 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 ...


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