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Smith v. Russell

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

March 8, 2017

COREY K. SMITH Petitioner,
v.
TERRY RUSSELL, Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Factual and Procedural Background

         The 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 victim.
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.

         Petitioner 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.

         In his 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 Ex. K.

         In the 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.

         II. Legal Standards

         A. Legal Standards for Reviewing Claims on the Merits

         Federal 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. § 2254(e)(1)).

         In the 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.

         When an 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.

         B. Procedural Default

         To 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. ...


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