United States District Court, E.D. Missouri, Eastern Division
E. JACKSON UNITED STATES DISTRICT JUDGE
matter is before the Court on the petition of Andre Porter
for a writ of habeas corpus pursuant to 28 U.S.C. §
Andre Porter is presently incarcerated at the Missouri
Eastern Correctional Center pursuant to the sentence and
judgment of the Circuit Court of St. Louis County. On October
2, 2008, following a bench trial, petitioner was found guilty
of two counts of second-degree robbery. Order and Verdict,
Resp. Ex. A at 123. He was sentenced to concurrent 20-year
terms of imprisonment. Judgment, Resp. Ex. A at 129-30. The
Missouri Court of Appeals affirmed the judgment. State v.
Porter, No. ED92518 (Mo.Ct.App. Dec. 15, 2009), Resp.
timely filed a motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15, that was denied without a
hearing. On August 14, 2012, the Missouri Court of Appeals
affirmed the denial of post-conviction relief. Porter v.
State, No. ED9711 (Mo.Ct.App. Aug. 14, 2012), Resp. Ex.
L. On November 14, 2013, petitioner timely filed this
petition for relief pursuant to 28 U.S.C. § 2254.
p.m., on October 12, 2007, Janet Watson was working as a
teller at the UMB Bank in Ferguson, Missouri. A man later
identified as petitioner approached her window and asked her
for a money order. He then handed her a note that said,
“Give me all your large bills, hundreds, fifties,
twenties in your top and bottom drawer.” Trial Trans.
at 27-28, Resp. Ex. B. As Ms. Watson began to remove cash
from her top drawer, her co-worker Jada Huffman approached.
Ms. Watson signaled to her that she was being robbed. Ms.
Huffman read the note and walked away to press the alarm and
call the branch manager. Id. at 49. Ms. Watson
handed petitioner the money she had removed from her top
drawer and petitioner said, “Give me more. I know you
have more, and hurry up.” Id. at 41. She took
three or four more stacks of money from her second drawer and
handed it to him. Petitioner wrapped the money in the note,
put it in his pocket, and walked out. Id. at 29. Ms.
Watson testified that she did not see a weapon but she was
primarily focused on the note and could not see
petitioner's hands at all times. She felt threatened and
scared by petitioner. Id. at 30.
Francis was a teller at the U.S. Bank in Ferguson, Missouri.
At 1:45 on October 16, 2007, petitioner approached her window
and placed a note on her counter that said, “Give me
all the hundreds and fifties out of the top two drawers. Now
hurry.” Ms. Francis described plaintiff as having a
very stern look on his face. She opened the drawer and began
putting money on the counter. She testified that she did not
have much money in her drawer but she could see that
petitioner was dissatisfied and so she started to give him
twenty-dollar bills. When she hesitated, he said
“Now.” He picked up his note and the money and
left the bank. Id. at 67-68. Ms. Francis did not see
a weapon but testified that the look petitioner gave her
frightened her and she “just did as he asked to get him
out of the bank.” Id. at 70.
Adail was with petitioner when he was arrested on October 18,
2007. She previously dated petitioner and ran into him at a
liquor store earlier in the evening. She described him as
uncharacteristically friendly and generous, buying her liquor
for her. They went together to the home of Ms. Adail's
brother, where petitioner gave cash to several people.
According to Ms. Adail, this was unusual behavior for him.
Id. at 97-100.
facts will be provided as necessary to address
claim has been adjudicated on the merits in state court
proceedings, habeas relief is permissible under the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(d), only if the state
(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)(1)-(2).
court's decision is “contrary to” clearly
established law if “it applies a rule that contradicts
the governing law set forth in [the Supreme Court's]
cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme Court] but
reaches a different result.” Brown v. Payton,
544 U.S. 133, 141 (2005). “The state court need not
cite or even be aware of the governing Supreme Court cases,
‘so long as neither the reasoning nor the result of the
state-court decision contradicts them.'” Brown
v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004)
(citing Early v. Packer, 537 U.S. 3, 8 (2002)).
“In the ‘contrary to' analysis of the state
court's decision, [the federal court's] focus is on
the result and any reasoning that the court may have given;
the absence of reasoning is not a barrier to a denial of
decision involves an “unreasonable application”
of clearly established law if “the state court applies
[the Supreme Court's] precedents to the facts in an
objectively unreasonable manner, ” Payton, 125
S.Ct. at 1439; Williams v. Taylor, 529 U.S. 362, 405
(2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Id. at 406. “Federal habeas
relief is warranted only when the refusal was
‘objectively unreasonable, ' not when it was merely
erroneous or incorrect.” Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529
U.S. at 410-11).
preserve a claim for relief, “a habeas petitioner must
have raised both the factual and legal bases” of his
claim to the state court, and afforded that court a fair
opportunity to review its merits. Abdi v. Hatch, 450
F.3d 334, 338 (8th Cir. 2006) (citations omitted). Where a
claim is defaulted, a federal habeas court will consider it
only if the petitioner can establish either cause for the
default and actual prejudice or that failure to consider the
claim will result in a fundamental miscarriage of justice.