United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE.
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.
jury trial, Gillispie was convicted of first degree robbery
and sentenced to twenty-five years. (Resp't Ex. E at 58-60.)
The following evidence, in the light most favorable to the
verdict, was presented at trial. 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
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.)
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.)
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.
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).
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).
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.
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.
Trial Court Error (Ground 1)
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.