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Walker v. Cassady

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

January 20, 2017

ALBERT WALKER, Petitioner,
v.
JAY CASSADY, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         Procedural Background

         On 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.

         Petitioner 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.

         Petitioner 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).

         Standard of Review

         The 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; or
(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).

         In 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.

         A state 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).

         A 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).

         Procedural Default

         In 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 citations omitted).

         Discussion

         Petitioner 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, and eleven.

         The Claims

         Was Trial Counsel Ineffective for Failing to Timely File a Motion to Suppress?

         Petitioner 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 ...


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