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Gillispie v. Griffith

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

March 29, 2017

ARTOSKA GILLISPIE, Petitioner,
v.
CINDY GRIFFITH, [1]Respondent.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on Petitioner Artoska Gillispie's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Respondent filed a response to the Petition for Writ of Habeas Corpus. [Doc. 6.] The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 5.] For the reasons set forth below, Gillispie's petition for writ of habeas corpus will be denied.

         I. Background

         After a jury trial, Gillispie was convicted of first degree robbery and sentenced to twenty-five years.[2] (Resp't Ex. E at 58-60.) The following evidence, in the light most favorable to the verdict, was presented at trial.[3] An individual entered a U.S. Cellular Store, brandished a gun, and forced the two employees present to give him $254 from a safe, approximately $1, 200 from the registers, four cell phones, and three Bluetooth headsets. The employees gave descriptions of the individual, there was store security surveillance footage of him, and one of the employees identified the individual as Gillispie from a photo. Police sought to locate Gillispie, who had a wanted, by tracking his cell phone. The tracking information placed Gillispie in the area of the U.S. Cellular store approximately fifteen minutes prior to the robbery. Police located Gillispie at a Motel 6 and discovered stolen items from the robbery in the motel room where Gillispie was arrested.

         Following his conviction, Gillispie filed a direct appeal. (Resp't Ex. G.) His sole point on appeal was that the trial court erred in failing to intervene sua sponte and declare a mistrial or issue a curative instruction when Detective Donald Stepp testified that he noticed Gilispie's height and build were “very similar to the individual that was in the video from U.S. Cellular” and that he “felt that we had the correct individual in custody.” The Missouri Court of Appeals affirmed the verdict. (Resp't Ex. I.)

         Following his direct appeal, Gillispie filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp't Ex. J at 3-16.) Post-conviction counsel filed an amended motion, arguing that appellate counsel had been ineffective in failing to appeal (1) the overruling of Gillispie's Batson objection, (2) the denial in part of his motion to suppress evidence seized from the motel room, and (3) the overruling of Gillispie's motion in limine to exclude evidence of his warrants or “wanteds.” Id. at 20-32. The post-conviction motion court denied the motion without an evidentiary hearing. Id. at 45-53. The Court of Appeals affirmed. (Resp't Ex. M.)

         Gillispie then filed his Petition for Writ of Habeas Corpus in this court on February 12, 2014. [Doc 1.] The Respondent filed a response in opposition. [Doc 6.] Gillispie filed a reply. [Doc. 14.]

         II. Standard of Review

          “The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources.” Harrington v. Richter, 562 U.S. 86, 91 (2011). “In general, if a convicted state criminal defendant can show a federal habeas court that his conviction rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013). The Anti-Terrorism 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 this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas review pursuant to 28 U.S.C. § 2254, a federal court is limited to deciding whether a claim that was adjudicated on the merits in state court proceedings (1) resulted in a decision that is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, 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 determination of a factual issue made by a state court is presumed to be correct unless the petitioner successfully rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         For purposes of § 2254(d)(1), the phrase “clearly established federal law refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). “In other words, clearly established federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. at 72. To obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he thinks the state courts acted contrary to or unreasonably applied. Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006).

         A state court's decision is “contrary to” clearly established Supreme Court precedent “if the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or ‘confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the] precedent.'” Penry v. Johnson, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). A state court decision is an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case. Id. (citing Williams, 529 U.S. at 407-408). “A federal habeas court making the unreasonable application inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.” Penry, 532 U.S. at 793. “A state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, ' 28 U.S.C. § 2254(d)(2), only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record.” Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A “readiness to attribute error is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). AEDPA's highly deferential standard demands that state court decisions be given the benefit of the doubt. Id.

         III. Discussion

         In his petition, Gillispie reasserts the claims raised in his direct appeal and his amended post-conviction motion. In Ground 1, Gillispie reasserts his sole point on direct appeal, that the trial court erred in failing to intervene sua sponte when Detective Donald Stepp testified as to the ultimate issue of whether Gillispie was in fact the robber depicted in the video. In Grounds 2 through 4, he reasserts the claims raised in his amended post-conviction motion, that appellate counsel was ineffective in failing to appeal (1) the overruling of Gillispie's Batson objection, (2) the denial in part of his motion to suppress evidence seized from the motel room where he was arrested, and (3) the overruling of Gillispie's motion in limine to exclude evidence of his warrants or “wanteds.” Respondent argues that Ground 1 is procedurally defaulted because the Court of Appeals reviewed it for plain error. Respondent further argues that the Court should defer to the Court of Appeals' rulings denying all four grounds. For the following reasons, Gillispie's petition will be denied.

         A. Trial Court Error (Ground 1)

         In Ground 1, Gillispie reasserts his sole point on direct appeal, that the trial court erred in failing to intervene sua sponte and declare a mistrial or issue a curative instruction when Detective Donald Stepp testified that he noticed Gilispie's height and build were “very similar to the individual that was in the video from U.S. Cellular” and that he “felt that we had the correct individual in custody.” Gillispie conceded that the point was not preserved at trial and the Court of Appeals reviewed it for plain error. Respondent argues, and the Court agrees, that Ground 1 is procedurally defaulted. In Clark v. Bertsch, the Eighth Circuit held based on Hayes v. Lockhart that a “state court's discretionary plain-error review of [a petitioner's] unpreserved claims cannot excuse his procedural default, ” resolving an intra-circuit panel split on the issue. 780 ...


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