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Immekus v. Cassady

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

November 28, 2016

MARK EDWARD IMMEKUS, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM

          David D. Noce, UNITED STATES MAGISTRATE JUDGE

         This action is before the court upon the petition of Missouri state prisoner Mark Edward Immekus for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.

         I. BACKGROUND

         On November 18, 1998, a Circuit Court of Pulaski County jury found petitioner Immekus guilty of first degree assault, armed criminal action, and felonious restraint. On December 18, 1998, the court sentenced him to consecutive terms of life, twenty years, and ten years imprisonment, respectively. On August 31, 2000, the Missouri Court of Appeals affirmed his conviction but remanded the case to the trial court for resentencing on the first degree assault conviction. State v. Immekus, 28 S.W.3d 421 (Mo.Ct.App. 2000). On November 8, 2000, the Circuit Court of Pulaski County changed petitioner's first degree assault sentence to thirty years imprisonment. On November 20, 2000, petitioner appealed to the Missouri Court of Appeals. On September 18, 2001, the Missouri Court of Appeals affirmed the judgment of the trial court. State v. Immekus, 55 S.W.3d 866 (Mo.Ct.App. 2001).

         On January 25, 2001, petitioner filed in the circuit court a pro se motion for post-conviction relief under Missouri Supreme Court Rule 29.15. On March 7, 2012, petitioner, through the aid of counsel, amended his motion. The circuit court denied petitioner's motion on July 18, 2012. On August 6, 2013, the Missouri Court of Appeals affirmed the denial. Immekus v. State, 410 S.W.3d 678 (Mo.Ct.App. 2013).

         On March 3, 2014, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254.

         The Missouri Court of Appeals described the facts, viewed in the light most favorable to the verdict, as follows:

[Petitioner] had dated Saveda Bollinger (“Victim”) before leaving the state, after which she started dating Mike McQueen (“McQueen”). On October 3, 1996, [petitioner] returned to Missouri, and Victim and McQueen took him to Victim's home to get clothes and belongings that he had left there before leaving the state. After doing so, Victim and McQueen took [petitioner] to a motel in Rolla where Victim rented a room for [petitioner] to spend the night. That evening, [petitioner] called Victim and told her that he had taken pills from her home and that if she did not come alone to the motel to see him, he would attempt suicide by taking them.
Victim and McQueen started for the motel, but Victim dropped McQueen off at a grocery store and told him to walk to the motel. She instructed McQueen that if she was not outside when he arrived at the motel, it meant she was having trouble and he should come to the door. When [petitioner] answered Victim's knock on the door, he threw her to the floor, hit her in the face, and pulled her by her hair to a chair where he tied her up with a cord. [Petitioner] proceeded to hit Victim in the face several times, cut her face with a single-edged razor, cut her hair to a length of 1 ½ inches (it had come to the middle of her back), cut the back of her head, and shaved her eyebrows off. While he was doing these things, he told Victim that he was going to make her “as ugly as her boyfriend, ” and he put a mirror in front of her, saying, “Aren't you pretty now?” At one point, [petitioner] told her that if she thought she had been beaten, “now you're going to be beat, ” and also said, “Dead time, bitch.” In addition to hitting her in the face, [petitioner] also ripped off Victim's pants, tearing the buttons on the fly off, and kicked her in the lower part of the stomach with his cowboy boots. [Petitioner] used a tape recorder he had taken from Victim's house to record some of his comments about what he had done to her and what he intended to do, including that he intended to inject her with methamphetamine. He also told her that his friend, Rick Fisher, was going to arrive and rape her.
The motel clerk's office was directly beneath the room that Victim had rented for [petitioner]. The clerk heard loud banging coming from that room and thought they were tearing up the room. She called the room and told [petitioner] that he was going to have to curtail their activities because she didn't want the room torn up, and he said “Okay.” McQueen then arrived at the motel and asked the clerk to call the room after he got no answer by knocking on the door to see if Victim was ready to go. The clerk called [petitioner] again and asked to speak to Victim. [Petitioner] gave the phone to Victim who told the clerk, “Oh, help me, please God . . .” The clerk then called 911.
At some point Rick Fisher arrived at the room but, although he was acquainted with Victim, he did not recognize her because of her condition. At that time, Victim was still bound in the chair and was bleeding from her wounds. Fisher said, “I don't need this, I'm leaving, ” and [petitioner] said he was going with him. [Petitioner] untied Victim and threw her clothes at her. As soon as Victim could get her clothes on, she left the room and ran downstairs. Fisher then left the motel room and got in his car. [Petitioner] followed Fisher out and got in the car with him and they left. The police and an ambulance arrived at the motel shortly after they left. Some officers left the scene to look for [petitioner] and Fisher, and one or more officers went to the room to see if anyone else was there. They entered the room through the door which [petitioner] left open and saw the room in disarray, hair on the floor, a chair with a cord tied around the arms, and blood on the wall behind the chair. Word shortly came that Fisher's car had been stopped, and the officers in the room left to assist in the arrest, pulling the motel room door shut resulting in it being locked.
Victim was taken to the hospital where she was found to have severely swollen eyes, cuts on both cheeks, a cut on the back of her head, and cut-off hair. The physician who examined her had to hold her eyes open in order to examine them because of the swelling. Although Victim was not kept in the hospital overnight, she came back the next day for a CT scan that revealed a fracture of the left orbital floor (underneath the eye in the cavity that the eye sits in). The risks of a fractured orbital floor include the possibility of paralysis of the eye by trapping the optic nerve, and of infection. She also had a loose front tooth that was cracked and eventually fell out.

State v. Immekus, 28 S.W.3d at 424-25.

         II. PETITIONER'S GROUNDS FOR FEDERAL HABEAS RELIEF

         Petitioner alleges two grounds for relief in this habeas action:

(1) His trial counsel rendered constitutionally ineffective assistance by failing to request a jury instruction for the lesser included offense of assault in the second degree.
(2) His trial counsel rendered constitutionally ineffective assistance by failing to move for the suppression of the evidence obtained as ...

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