United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
filed a pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 [Doc. 1] on November 27, 2013. On May 12,
2013 Respondent filed his Response to the Court's Order
to Show Cause Why Relief Should Not be Granted [Doc. 29].
Petitioner has filed his Traverse Response to
Respondent's Response to Show Cause [Doc. 33]. Pursuant
to Rule 8 of the Rules Governing Section 2254 Cases in the
United States District Courts, this Court has determined that
there are no issues asserted that give rise to an evidentiary
hearing and therefore one is not warranted, as will be
discussed in further detail. Petitioner's Motion for
Evidentiary Hearing, [Doc. 34], is therefore denied. For the
reasons explained below, the Response to the Order to Show
Cause Why Relief Should not be Granted is well taken and the
petition will be denied.
August 23, 2007, Petitioner was convicted by jury of
first-degree burglary, stealing, and resisting arrest. The
Circuit Court in Saint Charles County, on October 12, 2007,
sentenced Petitioner to two sets of concurrent terms totaling
fifteen years imprisonment and each concurrent term to run
consecutively for a total of thirty years imprisonment in the
Missouri Department of Corrections. The Missouri Court of
Appeals, Eastern District of Missouri, affirmed the
convictions. The Petitioner is currently within the custody
of the Missouri Department of Corrections under the
previously referenced sentences.
filed his motion for post-conviction relief, pursuant to Rule
29.15, relative the case on May 6, 2000. Thereafter, on June
6, 2011, the Missouri state trial court entered findings of
fact and conclusions of law denying the post-conviction
relief motion of Petitioner. Petitioner, on July 22, 2011,
filed a timely notice of appeal to the Missouri Court of
Appeals. The Missouri Court of Appeals affirmed the trial
court and issued its mandate on March 26, 2013.
filed this Petition for Writ of Habeas Corpus against
Respondent on November 27, 2013. Petitioner alleges eleven
claims for relief, three of which contain sub-claims. He
raises twelve allegations of ineffective assistance of
counsel (grounds one a, one b, two a, three, four, five, six
a, six b, seven, eight, nine, and eleven), and two
allegations of court error (grounds two b, and ten).
Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254 (“AEDPA”) applies to all
petitions for habeas relief filed by state prisoners after
the statute's effective date of April 24, 1996. When
reviewing a claim that has been decided on the merits by a
state court, AEDPA limits the scope of judicial review in a
habeas proceeding as follows:
An application for 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 -
(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;
(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).
construing AEDPA, the United States Supreme Court, in
Williams v. Taylor, held that:
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 U.S. Supreme
Court] on a question of law or if the state court decides a
case differently than [the U.S. Supreme Court] has on a set
of materially indistinguishable facts. Under the
‘unreasonable application' clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from [the U.S. Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.
529 U.S. 362, 412-13 (2000). Furthermore, the
Williams Court held that “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.” 529 U.S. at 409.
court decision must be left undisturbed unless the decision
was contrary to or involved an unreasonable application of
clearly established federal law as determined by the Supreme
Court of the United States, or the decision was based on an
unreasonable determination of the facts in light of the
evidence presented in state court. Colvin v. Taylor,
324 F.3d 583, 586-87 (8th Cir. 2003).
decision is contrary to United States Supreme Court precedent
if it decides a case based on a different rule of law than
the rule dictated by United States Supreme Court precedent,
or it decides a case differently than the United States
Supreme Court did on materially indistinguishable facts.
Id. A decision may only be overturned, as an
unreasonable application of clearly established United States
Supreme Court precedent, if the decision is both wrong and an
objectively unreasonable interpretation or application of
United States Supreme Court precedent. Id. A federal
habeas court may not disturb an objectively reasonable state
court decision on a question of federal law even if the
decision is, in the federal court's view, wrong under
Eighth Circuit precedent, and even if the habeas court would
have decided the case differently on a clean slate.
Id. State court factual determinations are presumed
to be correct and this presumption can only be rebutted by
clear and convincing evidence. 28 U.S.C. §2254(e)(1).
order to preserve issues for federal habeas review, a state
prisoner must fairly present his or her claims to state
courts during direct appeal or during post-conviction
proceedings. Sweet v. Delo, 125 F.3d 144, 149 (8th
Cir. 1996). Federal habeas review of a claim is barred where
a prisoner has defaulted his federal claims in a state court
under an independent and adequate state procedural rule.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Failing to raise claims on appeal is such a state procedural
rule. Coleman, 501 U.S. at 750. State procedural
rules are adequate and independent state grounds when they
are firmly established and regularly followed. Oxford v.
Delo, 59 F.3d 741, 746 (8th Cir. 1995) (internal
presents eleven claims for relief in his petition, and a
total of thirteen allegations. Ten of the allegations are
assertions that Petitioner received ineffective assistance of
counsel. However, the record before this court demonstrates
that he only presented six claims of ineffective assistance
of counsel to the Missouri Court of Appeals: failure to
timely file a motion to suppress an identification (claim
one), failure to strike venireperson Wilhelm (claim two),
failure to impeach Officer Branch (claim three), failure to
object to prior and persistent offender designation (claim
four), appellate counsel's failure to raise a claim that
the trial court improperly sentenced Petitioner (claim five),
and failure to call an expert witness (claim six a). As a
result, he did not present claims one, six b, seven, eight,
nine, or eleven to the Missouri Court of Appeals. The failure
to present a claim to the Missouri Court of Appeals is a
procedural default because it deprives the Missouri courts of
one full, fair opportunity to review the claims. Sweet v.
Delo, 125 F.3d 144, 149 (8th Cir. 1996). Failure to
raise a claim in a post-conviction appeal is an abandonment
of a claim. Id. at 1150 (citing Reese v.
Delo, 94 F.3d 1177, 1181 (8th Cir. 1996)). Where a
prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural
rule, such as failing to raise claims on appeal, federal
habeas review of the claims is barred. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Petitioner has
clearly defaulted claims one a, six b, seven, eight, nine,
Trial Counsel Ineffective for Failing to Timely File a Motion
asserts trial counsel was ineffective for failing to timely
file a suppression motion. This claim was raised before the
Missouri Court of Appeals, which reasonably ...