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Grogan v. Wallace

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

March 3, 2017

JEROME H. GROGAN, Petitioner,
v.
IAN WALLACE, [1] Respondent.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE

         Petitioner Jerome H. Grogan seeks federal habeas relief from a state court judgment entered after a jury trial. See 28 U.S.C. § 2254. As part of his requested relief, Petitioner asks the Court to appoint him counsel. See Pet'r Pet'n at 16 [ECF No. 1 at 15].[2] For the reasons set forth below, the Court denies Petitioner's petition, including the request for appointed counsel.

         I. Background

         The State of Missouri charged Petitioner with committing in Wayne County, Missouri, between July 1, 2005, and February 28, 2006, first-degree statutory sodomy in violation of Mo. Rev. Stat. § 566.062 (Count I) and, in August 2005, first-degree statutory rape in violation of Mo. Rev. Stat. § 566.032 (Count II).[3] The victim, a minor at the time of these offenses, is referred to as M.S.[4] The trial court granted Petitioner's application for change of venue and moved the case from Wayne County to Iron County.[5] Prior to the first trial, which ended in a mistrial, the State dismissed the statutory sodomy charge in Count I.[6] The jury found Petitioner guilty of first-degree statutory rape in the second trial.[7]

         At the second trial, the State introduced the testimony of five witnesses, including M.S., who described Petitioner's conduct towards her.[8] Phillip Burton, the Sheriff of Wayne County, Missouri, testified to receiving a report of the incident from M.S. and her mother.[9] In response to the report, Sheriff Burton contacted a juvenile officer to set up a forensic interview of M.S.[10]Tom Keeney, the juvenile officer for Wayne County, Missouri, stated that, upon learning of the reported incident, he called the Missouri Child Abuse and Neglect Hotline “pursuant to state law.”[11] Clea Fairaizel, a forensic interviewer at the Ozark Foothills Child Advocacy Center, testified about her interview of M.S.[12] Dorothy Munch, D.O., who conducted a Sexual Assault Forensic Examination (“SAFE”) of M.S., testified, on direct examination, that the physical examination results were negative and M.S.'s behavior was consistent with behavior commonly exhibited by sexual assault victims.[13] During re-direct examination, over Petitioner's objections, Dr. Munch testified about a study that reported pregnant women having “a normal hymen.”[14]The trial court denied Petitioner's motion for judgment of acquittal at the close of the State's evidence and, after Petitioner waived his right to testify, [15] Petitioner's motion for judgment of acquittal at the close of all the evidence.[16] After the jury found Petitioner guilty of statutory rape in the first degree[17] and the trial court denied Petitioner's motion for new trial, [18] the trial court sentenced Petitioner to a thirty-year term of imprisonment.[19]

         In his timely direct appeal, Petitioner pursued one point, challenging as plain error the admission of certain portions of Dr. Munch's testimony.[20] Petitioner did not challenge the sufficiency of the evidence to support the conviction and the Missouri Court of Appeals described the underlying facts as follows:

Victim was born in September 1994. She was the daughter of R.S. (Mother). In 1997, Mother and [Petitioner] married.
In August 2005, Victim was 10 years old. Mother and [Petitioner] had separated by that time. Victim was in the living room of her home with her cousin, B.L. [Petitioner] was watching them while Mother was at work. [Petitioner] went outside to his tractor-trailer unit to get some cigarettes. He returned with a pornographic movie that he placed into the living room videocassette player. He played the videotape in the presence of Victim and B.L. Then, [Petitioner] took B.L. into the bedroom and shut the door. When they came out of the bedroom sometime later, [Petitioner] angrily told Victim to “come on.” She did not want to go, so [Petitioner] grabbed her arm and started pulling her down the hallway to the bedroom.
Once they were in the bedroom, [Petitioner] locked the door, turned out the light and undressed. Victim could still see because the sun was shining through the bedroom window. Victim observed [Petitioner]'s penis. She described it as long with black hair on it and a pink circle on the end. [Petitioner] touched Victim on the chest. Next, he told Victim to get undressed and “feel comfortable.” Once Victim was naked, she was told to lie down on the bed. [Petitioner] got on top of her and inserted his penis into her vagina. Victim could feel [Petitioner]'s penis inside her vagina, but did not know how far it penetrated. [Petitioner] told Victim to get up and not tell anyone what had happened. [Petitioner] said that if she told, he would not be able to see her anymore. She got dressed and went back into the living room.
Victim said nothing about the incident for eight months. In April 2006, Victim told her Mother what had happened. She called the Piedmont police department. The case was turned over to the Wayne County Sheriff Phillip Burton (Sheriff Burton) because the incident had occurred in the county. When Sheriff Burton met with Mother, she reported that Victim had been sexually assaulted by [Petitioner]. Sheriff Burton also spoke to Victim, who said [Petitioner] had touched her in ways that she did not want to be touched and that it also happened to her cousin, B.L. Sheriff Burton contacted the Wayne County deputy juvenile officer (DJO) so a forensic interview could be conducted. The DJO placed a hotline call to the Children's Division (Division). A Division investigator scheduled a forensic interview at the Child Advocacy Center (CAC).
CAC employee Clea Fairaizel (Fairaizel) was a trained forensic interviewer. She had conducted approximately 500 such interviews. Victim referred to [Petitioner]'s penis as “his bottom.” Victim referred to her vagina as her “bottom.” Victim said [Petitioner] “put his bottom in my bottom.” Fairaizel understood that statement to mean that [Petitioner] had put his penis in Victim's vagina. During the forensic interview, Victim crossed her arms right away. Although the room was very warm, she kept on her coat throughout the interview. She only occasionally made eye contact with Fairaizel. While she was asking questions, Victim grabbed her skirt, curled it up and then shifted her legs back and forth. In Fairaizel's opinion, Victim's behavior was very typical of that commonly exhibited by a victim of sexual assault.
Dr. Dorothy Munch (Dr. Munch) was a family practice physician in Poplar Bluff, Missouri. On April 26, 2006, she performed a [Sexual Assault Forensic Examination or] SAFE examination on Victim. The exam was basically negative. Victim had normal genitalia with some nonspecific, mild redness. According to Dr. Munch, physical findings of sexual abuse would typically be found only in about 5-10% of SAFE exams. Based upon Dr. Munch's observation of Victim, her behavior conformed with that commonly exhibited by victims of sexual assault.

State v. Grogan, No. SD29241, Mem. Supplementing Order Affirming J. Pursuant to Rule 30.16(b), Resp't Ex. E, at 2-4 (Mo.Ct.App. filed June 23, 2009) (per curiam). The Missouri Court of Appeals affirmed Petitioner's conviction, and issued its mandate.[21]

         Following his direct appeal, Petitioner timely filed[22] a pro se motion for post-conviction relief (“PCR motion”) presenting a trial court error claim and an ineffective assistance of counsel claim based on the admission, without objection, of Dr. Munch's testimony regarding Victim's credibility.[23] Through appointed counsel, Petitioner filed an amended PCR motion.[24] In the amended PCR motion, Petitioner argued the trial court erred in admitting Dr. Munch's testimony about a study of pregnant women; the trial attorney “unreasonably elicited Clea Fairaizel's testimony concerning otherwise inadmissible hearsay statements made by” Victim; and the trial attorney “unreasonably elicited Dr. Dorothy Munch's belief that . . . [V]ictim's story was credible.”[25] At an evidentiary hearing on Petitioner's amended PCR motion, [26] the motion court took judicial notice of the record in Petitioner's criminal case, and Petitioner presented the deposition testimony of Dr. Munch, a copy of the study to which Dr. Munch referred at trial, a copy of the decision of the Missouri Court of Appeals in Petitioner's direct appeal, and the testimony of Petitioner's trial attorney, including a copy of “the SAFE exam narrative.”[27]

         After the hearing, the motion court denied Petitioner's claims.[28] The motion court concluded the evidence “failed to substantiate ineffective assistance of counsel” and, even if it had, Petitioner had not established the requisite prejudice.[29] In particular, the motion court reasoned that “[t]he testimony of the child victim alone was sufficient to support the jury's verdict of guilt” and the testimony at the hearing did “not rise to the level of such prejudice that the jury would have reached a different result.”[30]

         Petitioner timely appealed the motion court's judgment to the Missouri Court of Appeals. In his post-conviction appeal, Petitioner presented one point, arguing that his trial attorney was ineffective in eliciting Ms. Fairaizel's testimony that Victim told her “he put his bottom in my bottom” because such inadmissible hearsay bolstered Victim's credibility.[31] The Court of Appeals affirmed the motion court's judgment in a summary order accompanied by a more detailed supplemental memorandum.[32]

         In affirming the motion court's judgment, the Missouri Court of Appeals for the Southern District found the facts as follows:

[Petitioner] was Victim's step-father in August 2005, when Victim was ten years old. [Petitioner], Victim and Victim's female cousin were at [Petitioner]'s home one evening when [Petitioner] left the house to retrieve some cigarettes from his truck. He also retrieved a pornographic movie, which he played for both Victim and her cousin upon returning to the home. [Petitioner] then asked Victim's cousin to go into the bedroom with him and shut the door behind them.
When [Petitioner] and Victim's cousin exited the bedroom, [Petitioner] attempted to take Victim into the bedroom. Victim resisted, and [Petitioner] pulled her down the hallway, angrily telling Victim to “come on.” [Petitioner] took Victim into the bedroom, closed and locked the door, and turned out the light. He touched Victim's chest and told her to get undressed. [Petitioner] told Victim to “feel comfortable[, ]” but she did not. [Petitioner] “got on top of” Victim and inserted his penis into her vagina.
Afterward, [Petitioner] told Victim to get up and not to tell anyone because she would not get to see him anymore. Victim believed him and did not tell anyone until the following April because she still wanted [Petitioner] in her life, as she thought of him as her father. At that point in time, Victim disclosed [Petitioner]'s actions to her mother, who called the Wayne County sheriff.
Sheriff Phillip Burton briefly met with Victim and her mother; Victim repeated the allegations against [Petitioner] to Burton. Burton then contacted Tom Keeney, the juvenile officer for Wayne County; pursuant to state law, Keeney then called the Missouri Child Abuse and Neglect Hotline.
Clea Fairaizel with the Ozark Foothills Child Advocacy Center conducted Victim's forensic interview. During the interview, Victim was uncomfortable, leaving her coat on, fidgeting with her clothing, and avoiding eye contact with Fairaizel, behavior typical of that displayed by sexual-abuse victims. Victim referred to both [Petitioner]'s penis and her own vagina as a “bottom[, ]” while she referred to her breasts as “breasts.” Fairaizel took Victim's statement that [Petitioner] “put his bottom in my bottom” to mean that he put his penis in her vagina.
Dr. Dorothy Munch conducted Victim's SAFE examination on April 26, 2006, at the Poplar Bluff Wellness Clinic. The examination disclosed no physical signs of sexual abuse, which is not unusual in cases of sexual abuse and is consistent with findings in other sexual-abuse cases.

Grogan v. State, No. SD31612, Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b) (Mo.Ct.App. filed Oct. 24, 2012 (per curiam), Resp't Ex. J, at 2-4 (footnote omitted) (ninth and sixteenth alterations in original).

         After discussing the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), to establish an ineffective assistance of counsel claim, the Missouri Court of Appeals found Petitioner's trial attorney's testimony at the evidentiary hearing “that she did not recall why she elicited the challenged testimony, ” did not constitute “an admission that counsel had no trial strategy, but rather constitute[d] an admission that counsel simply can no longer recall what that strategy was some three years later.”[33] Reviewing the trial record, the Court of Appeals concluded that “trial counsel's strategy was to highlight the expected inconsistencies between the testimony of Victim, Fairaizel, and Dr. Munch, in order to persuade the jury that Victim's allegation of abuse was fabricated in response to the separation of her mother and [Petitioner].”[34]

         In particular, the Court of Appeals noted Petitioner's trial counsel described, during her opening statement, how “she would demonstrate that no acts of sexual abuse had ever happened: through inconsistencies between the testimony of Victim, Fairaizel, and Dr. Munch.”[35]Petitioner's trial counsel mentioned Victim's challenged statement, which “was taken to mean that [Petitioner] had put his penis inside [Victim's] vagina, ” and reported Dr. Munch “would testify that[, ] if that had actually happened, there would have been physical evidence present in Victim's SAFE examination.”[36] The Court of Appeals further pointed to trial counsel's emphasis in her opening statement on the fact that “Victim's allegations against [Petitioner] were only made after [Petitioner] and Victim's mother had separated.”[37]

         During trial, the Missouri Court of Appeals found, Petitioner's counsel elicited the challenged testimony while cross-examining Ms. Fairaizel and, during cross-examination of Dr. Munch, Petitioner's counsel attempted unsuccessfully to elicit a concession “that there should have been physical evidence of a sexual assault if the abuse occurred as claimed by Victim.”[38]Concluding the elicitation of the challenged testimony “was a reasonable means of pursuing” counsel's trial strategy, the Missouri Court of Appeals decided the fact “[t]hat the expected inconsistencies did not materialize during trial does not now negate the validity or reasonableness of that strategy.”[39]

         Petitioner subsequently filed his habeas petition presenting four grounds for relief based on his trial attorney's allegedly ineffective assistance of counsel.

         II. Petitioner's Grounds for Federal Habeas Relief

         In his federal habeas petition, Petitioner asserts the following four grounds for relief:

1. The trial attorney provided ineffective assistance by failing to establish through Dr. Munch's testimony that her cited study of pregnant women had no relevance to Victim;
2. The trial attorney provided ineffective assistance by unreasonably eliciting Ms. Fairaizel's testimony concerning inadmissible hearsay statements made by Victim;
3. The trial attorney provided ineffective assistance by unreasonably eliciting Dr. Munch's belief that Victim's story was credible; and
4. The trial attorney provided ineffective assistance by improperly bolstering Victim's credibility by eliciting inadmissible hearsay from Ms. Fairaizel that Victim told Ms. Fairaizel Petitioner “put his bottom in my bottom.”

         The first and third grounds for relief, Respondent contends, are procedurally barred from consideration on their merits because Petitioner did not present them on appeal from the denial of his post-conviction motion.

         With respect to grounds two and four, Respondent notes they “share identical legal and factual components” and, therefore, Respondent “collapses them into a single claim.”[40] The Court also considers as one ground for relief Petitioner's second and fourth ineffective assistance of counsel claims focused on Ms. Fairaizel's challenged testimony about what Victim said to her.

         The Court refers to the combined ground for relief as “ground two” for purposes of this decision.

         Respondent argues the ineffective assistance of counsel claim in ground two lacks merit because the Missouri Court of Appeals' decision considering this issue is neither an incorrect nor an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

         III. Discussion of Grounds for Habeas Relief

         A. Procedural Bar - Challenges to counsel's examination of ...


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