United States District Court, E.D. Missouri, Eastern Division
COREY K. SMITH Petitioner,
TERRY RUSSELL, Respondent.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Corey K. Smith's
(“Petitioner's”) pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1) (Doc. 8). For the following reasons,
the petition will be denied.
Factual and Procedural Background
Missouri Court of Appeals summarized the facts as follows:
Viewed in the light most favorable to the verdicts, the
following evidence was adduced at trial. On the night of the
incident, the victim and his girlfriend went to dinner. When
the victim and his girlfriend returned home at about 10:30
p.m., Defendant was sitting on the stoop next door to the
victim's home. The victim and Defendant had argued with
each other several days earlier and earlier that day. The
victim walked over to Defendant and said, “Dude,
didn't I tell you don't sit on this stoop?”
Defendant stood up and told the victim the stoop did not
belong to the victim. They argued briefly and got “in
each other's face.” The victim then said, “Do
what you do” or “Go ahead and . . . whatever you
going to do, do it.”
Defendant then made a stabbing motion toward the victim, and
the victim backed up. The victim had his hands in the air,
trying to defend himself as the two men moved down the
street. Defendant made one or two stabbing motions toward the
victim, and then the fight broke up. One witness saw
something in Defendant's hand. The victim was not holding
anything in his hands. The victim did not have a weapon when
he fought Defendant, and no weapon was found at the scene.
After the fight, Defendant walked away, and went to his home
in Jennings, Missouri. The victim walked to a friend's
house holding his chest where he collapsed. The victim later
died from a knife wound to his chest.
The victim's girlfriend and other witnesses identified
Defendant as the man who stabbed the victim. Defendant was
later arrested at his home in Jennings.
At the trial, Defendant claimed that he acted in
self-defense. Defendant testified that prior to the day of
the incident, he had argued with the victim. He testified
that, at that time, the victim had told him “to wait
right here.” Defendant said the victim told him
“to be right here when he get back.” Defendant
stated he took these words as threats. Defendant further
testified that, immediately prior to the stabbing, he again
argued with the victim, and that the victim put his hands in
his pockets. Defendant testified he thought the victim could
be pulling a gun, knife, or “anything” out of his
pocket. He stated that at that moment he was distracted by
someone else, when the victim started punching him in the
face. Defendant testified that he grabbed his knife, and his
“hand went up for defending [himself] and that's
when [he] cut [the victim].” Defendant stated he was
afraid for his life, and he was only trying to get the victim
off him. He stated he did not think the victim was seriously
injured because the victim was still walking. He testified he
“really wanted to stay, ” but he left the scene
because he feared he would be shot in retaliation.
Defendant also presented the testimony of Sharon Bernard
(“Bernard”). She testified three days before the
incident, the victim told her that he “ran” the
neighborhood, and that “he was going to let [Defendant]
know that he runs the neighborhood” and “show
him.” Bernard testified she informed Defendant of what
the victim said. Bernard stated she told Defendant to avoid
The jury subsequently found Defendant guilty of murder in the
second degree and armed criminal action. The trial court
sentenced Defendant as a prior offender to twenty years'
imprisonment for each count to be served concurrently.
Resp't Ex. F, at 2-4.
filed a direct appeal, in which he raised two arguments: (1)
that the trial court erred by allowing the State to comment
on and adduce testimony regarding Petitioner's
post-Miranda silence, to impeach his self-defense
claim; and (2) that the state improperly misstated
Missouri's self-defense law in closing argument.
Resp't Ex. D, at 15-17. The Missouri Court of Appeals
found Petitioner's arguments meritless and affirmed the
Petitioner's convictions. Resp't Ex. F.
amended motion for post-conviction relief, Petitioner
asserted three claims of ineffective assistance of counsel.
Resp't Ex. H, at 25-52. First, Petitioner argued that his
defense counsel was ineffective in the way that he handled
and objected to the State's attempts to elicit evidence
of Petitioner's post-Miranda silence to impeach
his self-defense claim. Resp't Ex. H, at 29-40. Second,
Petitioner argued that defense counsel was ineffective by
failing to call a witness, Marqueesha Perry, to testify as to
why Petitioner was in possession of the weapon used to kill
the victim. Id. at 40-44. Third, Petitioner argued
that defense counsel was ineffective because he promised the
jury in the opening statement that the jury would hear
certain testimony from Sharon Bernard, yet failed to elicit
such testimony. Id. at 44-47. After holding an
evidentiary hearing, the motion court denied Petitioner
relief on each of his claims. Resp't Ex. H, at 53-68.
Petitioner raised all three of these claims in his appeal of
the denial of his motion for post-conviction relief.
Resp't Ex. I, at 16-18. In May 2013, the Missouri Court
of Appeals affirmed the motion court's ruling. Resp't
instant petition, Petitioner raises the same three
ineffective assistance of counsel claims he pursued in his
motion for post-conviction relief, as well as a claim of
ineffective assistance of post-conviction relief counsel.
Legal Standards for Reviewing Claims on the Merits
habeas review exists only “as ‘a guard against
extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal.'” Woods v. Donald, 135 S.Ct. 1372,
1376 (2015) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). Accordingly,
“[i]n the habeas setting, a federal court is bound by
AEDPA [the Antiterrorism and Effective Death Penalty Act] to
exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327
F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254).
Under AEDPA, a federal court may not grant habeas relief to a
state prisoner with respect to any claim that was adjudicated
on the merits in the state court proceedings unless the state
court's adjudication of a 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). A state court decision is “contrary to”
clearly established Supreme Court precedents “if the
state court applies a rule that contradicts the governing law
set forth in [the Supreme Court's] cases” or
“if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[the Supreme Court's] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Brown
v. Payton, 544 U.S. 133, 141 (2005). A state court
decision involves an “unreasonable application”
of clearly established federal law if it “correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case.” Williams, 529 U.S. at 407-08; see
also Bell v. Cone, 535 U.S. 685, 694 (2002).
“Finally, a state court decision involves an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it
is shown that the state court's presumptively correct
factual findings do not enjoy support in the record.”
Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.
2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39
(2006) (noting that state court factual findings are presumed
correct unless the habeas petitioner rebuts them through
clear and convincing evidence) (citing 28 U.S.C. §
instant case, each of Petitioner's claims is based on an
assertion that his counsel was ineffective. The Sixth
Amendment guarantees a criminal defendant the right to
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). To show
ineffective assistance of counsel, Petitioner must show both
that “[his] counsel's performance was
deficient” and that “the deficient performance
prejudiced [his] defense.” Id.at 687; see
also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904
(8th Cir. 2014). To show deficient performance, Petitioner
must show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.”
Id. “Judicial scrutiny of counsel's
performance must be highly deferential, ” and
Petitioner bears a heavy burden in overcoming “a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance” and
“might be considered sound trial strategy.”
Id. at 689 (citation and internal quotation marks
omitted). To demonstrate prejudice, a Petitioner “must
show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at
694. “An error by counsel even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. at 691.
ineffective assistance claim has been addressed by the state
court, this Court must bear in mind that “[t]aken
together, AEDPA and Strickland establish a
‘doubly deferential standard' of review.”
Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(quoting Cullen v. Pinholster, 131 S.Ct 1388, 1410
(2011)). In the context of a habeas claim, it is not
sufficient for a petitioner to “show that he would have
satisfied Strickland's test if his claim were
being analyzed in the first instance, ” Bell,
535 U.S. at 698-99. “Rather, he must show that the
[state court] applied Strickland to the facts of his
case in an objectively unreasonable manner.”
Id. at 699.
preserve a claim for federal habeas review, a state prisoner
must present that claim to the state court and allow that
court the opportunity to address the claim. Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state
procedural rules, any claims not properly raised before the
state court are procedurally defaulted.” Id.
The federal habeas court will consider a procedurally
defaulted 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. (citing Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate
cause, a petitioner must show that “some objective
factor external to the defense impeded [the petitioner's]
efforts to comply with the State's procedural
rule.” Murray v. Carrier, 477 U.S. 478, 488
(1986). To establish prejudice, a petitioner must demonstrate
that the claimed errors “worked to his actual
and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” United States
v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v.
Caspari, 173 F.3d 1136, 1141 (8th Cir. ...