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Morgan v. Cassady

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

January 9, 2017

RICKY MORGAN, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Petition of Ricky Morgan for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Petition is fully briefed and ready for disposition.

         I. Procedural History

         On March 29, 2011, a jury found Petitioner Ricky Morgan guilty of attempt to commit the offense of stealing anhydrous ammonia. (Resp't's Ex. D pp. 73, 84) The Circuit Court of Marion County, Missouri sentenced him to 20 years' incarceration. (Id. at 84) Petitioner appealed the judgment, and on April 10, 2012 the Missouri Court of Appeals affirmed the judgment of conviction. (Resp't's Ex. H) Petitioner then filed a Motion to Vacate, Set Aside, or Correct Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp't's Ex. J pp. 1-80) After an evidentiary hearing on the motion, the motion court denied Petitioner's motion for post-conviction relief. (Resp't's Ex. J pp. 139-46) On December 24, 2013, the Missouri Court of Appeals affirmed the judgment of the motion court. (Resp't's Ex. N) On February 12, 2014, Petitioner filed the present petition for habeas relief in federal court. Petitioner is currently serving out his sentence at the Jefferson City Correctional Center ("JCCC") located in Jefferson City, Missouri.

         II. Factual Background [1]

         On December 11, 2010 at approximately 1:00 AM, deputies from the Marion County Sheriffs Office were on patrol in Hannibal, Missouri. Deputy Dennis McAfee ("McAfee") parked his patrol car on the side of a rural county road near two construction sites. Thefts of anhydrous ammonia frequently occurred on one of the construction properties. McAfee observed a car driving in the area and contacted Deputy Eric Dudley ("Dudley") and reported the vehicle. Dudley then drove to the area where the vehicle was spotted. McAfee reported that the vehicle had stopped near anhydrous tanks, and Dudley advised that he planned to stop the vehicle and investigate. As Dudley approached the vehicle parked in front of the anhydrous ammonia tanks, the vehicle sped off. Dudley pursued the vehicle and activated his lights and siren. McAfee also pursued the vehicle, which eventually pulled over. As McAfee exited his patrol car, he smelled the odor of ether, which became stronger as he approached the vehicle. When Petitioner Ricky Morgan exited the vehicle, both Dudley and McAfee detected the smell of ether on Petitioner's person. Ether is a product that is used to produce methamphetamine. Petitioner denied smelling like ether and explained to Dudley that he and his passengers stopped to look at deer in the field near the anhydrous ammonia tanks.

         Dudley then asked Petitioner if he had anything illegal in the vehicle. Petitioner answered "no" and gave Dudley permission to search the vehicle. When the passengers exited the vehicle, Dudley noticed a fire extinguisher in plain view behind the driver's seat. Dudley knew that the extinguisher could be used to steal and store anhydrous ammonia. When Dudley asked Petitioner about the extinguisher, he denied any knowledge and commented that, if the extinguisher was to be used to carry anhydrous ammonia, "wouldn't I need an inner tube?" Upon search of the car, Dudley seized the extinguisher, a syringe, and a syringe top. One of the passengers admitted that the syringe belonged to him and that he had used it to ingest methamphetamine. Petitioner also admitted to using narcotics a couple hours earlier.

         Search of the trunk revealed the odor of ether and a plastic bag containing a HCL generator, which was used to manufacture methamphetamine. The generator contained a saltlike substance, and salt was used in an HCL generator during the production of methamphetamine. The trunk also contained bolt cutters, a flashlight, a pair of black gloves, a plastic jug, and a hammer. Dudley then arrested Petitioner and advised him of his Miranda rights. After McAfee delivered Petitioner to the jail, McAfee returned to the scene and searched the area. McAfee found a five-gallon bucket with a bicycle inner tube inside and a large cooler. The State charged Petitioner as a prior and persistent offender, with attempt to commit the offense of stealing anhydrous ammonia.

         III. Petitioner's Claims

         In his Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, Petitioner raises three claims for federal habeas relief. First, Petitioner alleges that post-conviction counsel failed to include in the post-conviction motion the claim that trial counsel was ineffective for failing to object to the admission of text messages on hearsay grounds. Next, Petitioner alleges that postconviction counsel failed to include in the post-conviction motion the claim that trial counsel was ineffective for failing to move to exclude any reference by the arresting deputy to Petitioner's past known drug use or contacts with the police department. Finally, Petitioner asserts that postconviction counsel failed to include in the post-conviction motion the claim that trial counsel was ineffective for failing to move to suppress Petitioner's pre-Miranda statement that he would have brought a hose if he intended to steal anhydrous ammonia. The Court notes that each ground appears to raise an ineffective assistance of post-conviction counsel claim, as well as an underlying claim for ineffective assistance of trial counsel.

         IV. Legal Standards

         Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus ... only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, a federal court may not grant habeas relief unless the claim adjudicated on the merits in state court '"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.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. § 2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual findings presumed to be correct where fairly supported by the record).

         "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With regard to the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Bucklew v. Luebbers 436 F.3d 1010, 1016 (8th Cir. 2006); Roman v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.

         To preserve a claim for federal habeas review, a petitioner must present the claim to the state court and allow that court the opportunity to address petitioner's claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation omitted). "Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted." Id. A federal court will consider a defaulted habeas claim "only where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice." Id.

         V. ...


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