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Jordan v. Bowersox

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

March 30, 2017

LASHAWIN JORDAN, Petitioner,
v.
MICHAEL BOWERSOX and JOSH HAWLEY, [1]Respondents.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         Petitioner Lashawin[2] Jordan seeks federal habeas relief from a state court judgment following a jury verdict. See 28 U.S.C. § 2254. For the reasons set forth below, the Court denies the petition as without merit.

         I. Background

         The State of Missouri charged Petitioner with first-degree murder in violation of Mo. Rev. Stat. § 565.020 (Count I) and armed criminal action in violation of Mo. Rev. Stat. § 571.015 (Count II) for knowingly causing the death, after deliberation, of Louis Davis, Jr. (“Victim”) by shooting him on November 1, 2006.[3]

         Trial Court Proceeding

          At trial, the parties stipulated that: Victim had “[b]ullet wounds to the back, lower back, [and] buttocks. The one that entered the upper chest exited the front chest and was the cause of death.”[4] The State presented numerous exhibits and seven witnesses:[5] Latroy Taylor and Harry Collins, two officers with the City of St. Louis Police Department who responded to the scene; Michael Davis, Victim's nephew, and Keith John Like, two individuals who were at the scene during the shooting and testified to seeing Petitioner with a gun shooting Victim as Victim fled from Petitioner; Dion Pettis, another individual at the scene, who saw Petitioner placing a gun in his jacket as he ran from the scene after the shooting; Cheryl Davis, one of Petitioner's friends, who testified to several of Petitioner's nicknames; and Heather Sabin, another officer of the City of St. Louis Police Department, who read during trial several letters Petitioner had written and mailed from jail to a friend in early 2008.[6] The trial court denied Petitioner's motion for judgment of acquittal at the close of the State's evidence.[7]

         Petitioner testified in his defense.[8] In summary, he testified that, since he was thirteen years old, he had sold drugs for Victim; he was sixteen years old at the time of the shooting; just before the shooting, Victim accused Petitioner of losing drugs and hit Petitioner with a gun that Petitioner obtained during the subsequent struggle with Victim; and Petitioner shot Victim because he feared for his safety.

         In rebuttal, the State presented the parties' stipulation that if David Menendez, a qualified firearms expert, testified, he:

would testify that he examined the clothing . . . that [Victim] was wearing; that there were three bullet holes in the clothing, the upper back, lower back and the buttocks area; that there was no gunshot residue, no soot, no stippling, no burnt gunpowder . . . [a]nd, as a result, therefore, [the firearms expert] would say . . . that the muzzle of the gun was at a minimum of 3 feet from . . . [V]ictim when the gun was fired.[9]

(Footnote added.) Petitioner then unsuccessfully moved for a judgment of acquittal at the close of all the evidence.[10]

         Before the instruction conference, both attorneys expressed their opinion, in response to an inquiry by the trial court, that self-defense was not at issue.[11] The trial court found:

[Petitioner] kind of started out with it. I want to make a record that I believe that this is a difficult record to make, but it is what it is. I believe that when [Petitioner] testified under cross-examination that he fired shots after [Victim] had fled from him [and had] his back to [Petitioner], that negates all Missouri case law definitions of self-defense. And no juror upon having heard that could conclude that self-defense has occurred in this case. . . .
* * *
. . . I want to make that record on the self-defense because he kind of started out suggesting it with the struggle for the gun. . . . [The jury may] drop to a murder second, but I don't see how they could possibly find self-defense given the testimony.[12]

(Footnote added.) Petitioner's counsel responded that she did not plan on submitting or arguing self-defense. Id. at 205.

         Noting that a self-defense instruction had to be given whether requested or not, the trial court explained during the instruction conference why it had decided “there was no evidence to support a self-defense instruction:”[13]

We had a general discussion on this earlier, but I did make my own decision, and this was based upon [Petitioner] in his testimony admitting and testifying to facts and circumstances which negate all of the case law and instructions concerning self-defense as [Petitioner] had informed the jury that [Victim] had turned and fled. And all the case law is consistent if somebody flees and leaves and all imminent danger to a Defendant has come to an end, self-defense cannot be had. Therefore, it was my position then and now that there was no evidence to support a self-defense instruction.[14]

(Footnote added.) Among other instructions, the trial court gave verdict-directing instructions for first-degree murder, second-degree murder, and voluntary manslaughter.[15] The jury found Petitioner guilty of second-degree murder and armed criminal action.[16]

         During the sentencing phase, the State presented the testimony of Louise Tillman, Victim's mother.[17] In addition to describing the impact of Victim's death on the family, Ms. Tillman testified, without objection, that she heard Victim tell Petitioner, “Man, you need to stop bragging about that dude that you killed.”[18] During argument, the prosecutor asked the jury to consider “life imprisonment for both counts, ”[19] and Petitioner's counsel urged the jury, “due to the circumstances and . . . [Petitioner's] situation and his age, . . . [to] consider 20 years on both counts.”[20] After sending a note asking the trial court: “If sentenced 20 on each count will they run concurrent or consecutive?” and learning from the trial court that “[t]he Court will make that determination, ” the jury assessed terms of imprisonment of thirty years for second-degree murder and twenty years for armed criminal action.[21]

         At sentencing, the trial court denied Petitioner's motion for judgment of acquittal, or in the alternative, for a new trial.[22] Before imposing sentence, the trial court heard statements by Victim's mother, Petitioner's response to Ms. Tillman's statements, and counsel's arguments.[23]The trial court sentenced Petitioner to consecutive terms of imprisonment of thirty years for second-degree murder and twenty years for armed criminal action.[24]

         Direct Appeal

         In his only point in his timely direct appeal, Petitioner asserted the trial court plainly erred and violated Petitioner's rights to due process, a properly instructed jury, and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments, by giving a voluntary manslaughter instruction (Instruction No. 7) because it did not conform to MAI-CF.3d 313.04 and 313.08.[25] In affirming the trial court's judgment, the Missouri Court of Appeals stated “[t]he sufficiency of the evidence is not in dispute. On November 1, 2006, [Petitioner] shot . . . [V]ictim three times in the back, killing him.”[26] After noting that Petitioner had requested and not objected to the voluntary manslaughter instruction, and had not challenged that instruction in Petitioner's post-trial motion for judgment of acquittal or for a new trial, the Court of Appeals concluded there were “no extraordinary circumstances . . . to justify reviewing [Petitioner's challenge to the voluntary manslaughter instruction] as a matter of plain error.”[27] The Court of Appeals issued its mandate on November 13, 2009.[28]

         Post-Conviction Motion Proceeding

         Petitioner presented two claims in his timely pro se motion for post-conviction relief (“PCR motion”).[29] In his first claim, Plaintiff argued the trial court violated his federal constitutional rights to due process, a fair trial, and equal protection by removing from the jury the decision whether to impose consecutive or concurrent sentences.[30] For his second claim, Petitioner argued his trial attorney provided ineffective assistance of counsel by failing to object to the trial court's “remov[al of] the duty of the jury to impose sentence.”[31]

         Through appointed counsel, Petitioner filed an amended PCR motion, which included a request for an evidentiary hearing.[32] In his amended PCR motion, Petitioner set forth two ineffective assistance of counsel claims.[33] Specifically, Petitioner argued his trial attorney provided ineffective assistance of counsel by failing to request a self-defense instruction and by failing to object to the testimony of an uncharged offense presented during the penalty phase of trial.[34]

         Without conducting an evidentiary hearing, the motion court denied Petitioner's PCR motion.[35] The motion court concluded Petitioner's ineffective assistance of counsel claims regarding his trial attorney's failure to submit a self-defense instruction and failure to object to certain testimony presented during the penalty phase lacked merit.[36] With regard to Petitioner's first claim, the motion court concluded:

[b]y the time [Petitioner] shot [V]ictim, he had disarmed [V]ictim and he shot the unarmed [V]ictim in the back. [Furthermore, ] it was an objectively reasonable decision to argue for a verdict of manslaughter rather than trying to convince a jury that his shooting an unarmed victim in the back was in self-defense.[37]

(Footnote added.) In rejecting Petitioner's second claim, the motion court concluded the challenged testimony of Victim's mother did not have “a decisive effect on the sentences [Petitioner] received.”[38]

         Post-Conviction Appeal

         Petitioner presented two points in his timely post-conviction appeal based on assertions the motion court violated his Fifth, Sixth, and Fourteenth Amendment rights by failing to find his trial attorney provided ineffective assistance of counsel.[39] First, Petitioner argued his trial attorney provided ineffective assistance in failing to object to the penalty phase testimony of Victim's mother that she heard Victim suggest Petitioner had earlier talked about having committed an uncharged murder.[40] In his second point, Petitioner contended his trial attorney was ineffective in failing to submit a self-defense instruction.[41]

         The Missouri Court of Appeals affirmed the motion court's judgment in an unpublished per curiam order and memorandum.[42] The Court of Appeals concluded with respect to both points that Petitioner was not prejudiced by his trial attorney's alleged failures, and, as to the second point, Petitioner had not shown that the self-defense instruction would have been given if counsel had requested it.[43] The Court of Appeals issued its mandate on September 11, 2013.[44]

         II. Petitioner's Grounds for Federal Habeas Relief

         In his federal habeas petition, Petitioner seeks relief on the following two grounds:

1. His trial attorney provided ineffective assistance of counsel in violation of the Sixth Amendment by failing to request a self-defense instruction;[45]and
2. The trial court erred in allowing Victim's mother to testify during the penalty phase to uncorroborated and inflammatory statements of uncharged crimes.[46]

         Respondents counter that Petitioner is limited to pursuing in this habeas proceeding only those claims that he presented to the state courts and Petitioner did not present his second ground for relief based on trial court error to the state courts.[47] To the extent Petitioner's second ground should be considered a claim of ineffective assistance of counsel for Petitioner's trial attorney's failure to object to the challenged testimony of Victim's mother during the penalty phase, Respondents urge that claim, as well as Petitioner's first ground for relief, do not entitle him to relief. Respondents argue those claims lack merit because the state courts' rejection of those claims does not constitute an incorrect or unreasonable application of clearly established federal law and was based on a reasonable determination of the facts.[48]

         In his traverse, Petitioner characterizes each of his grounds for relief as ineffective assistance of counsel claims.[49] Petitioner urges each of his grounds for relief has merit.

         III. Discussion of Grounds for Habeas Relief

          A. Legal Standard (Merits)

         The Court is bound by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), see 28 U.S.C. § 2254(d), “to exercise only limited and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). A federal court may not grant relief to a state prisoner unless a 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) “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 United States Supreme Court precedent if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or . . . decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000) (“Taylor”). If a state court's decision is not “contrary to” clearly established law, then the “unreasonableness” standard applies, which is “meant to be difficult to meet, and ‘even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.'” Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). A state court decision is 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.” Taylor, 529 U.S. at 407-08; see also id. at 413.

         The “clearly established Federal law” requirement of habeas review requires the habeas court to consider only United States Supreme Court precedents decided as of the time the state court issues its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38-40 (2011) (relying on Cullen v. Pinholster, 563 U.S. 170 (2011)). State courts are not required to cite to Supreme Court cases, “‘so long as neither the reasoning nor the result of the state-court decision contradicts them.'” Revels v. Sanders, 519 F.3d 734, 739 (8th Cir. 2008) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). Importantly, in reviewing state court decisions to ascertain whether they either contradict or unreasonably apply clearly established federal law, a federal habeas court “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, 563 U.S. at 181-82.

         “Finally, a state court decision involves ‘an unreasonable determination of the facts in light of the evidence presented in 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. 28 U.S.C. 2254(e)(1).” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004). Under the AEDPA, “a determination of a factual issue made by a State court shall be presumed to be correct” unless rebutted by the petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The presumption of correctness of a state court's findings of fact applies to the factual determinations made by a state court at either the trial or appellate levels, Smulls v. Roper, 535 F.3d 853, 864-65 (8th Cir. 2008) (en banc), and to a state court's implicit findings of fact, Grass v. Reitz, 749 F.3d 738, 743 (8th Cir. 2014). ...


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