United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING ISSUANCE OF CERTIFICATE OF
APPEALABILITY, AND (3) DISMISSING MATTER WITH
D. SMITH, SENIOR JUDGE
is Petitioner Terry Birmingham's Petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Doc.
#1. The Court denies the Petition, and declines to issue a
Certificate of Appealability.
underlying facts were summarized by the Missouri Court of
In December 1999, Thomas Brown noticed a man on the porch of
a nearby house, fidgeting with the door. Brown watched the
man walk off the porch and onto the sidewalk, but did not see
the front of the man. As the man was walking away from him,
Brown saw an elderly woman come onto the same porch and heard
her scream, “Stop him, stop him, he just raped
me[!]” Brown was too far way to see the woman's
face. The man began running quickly down the street, so Brown
yelled at his daughter, Heather Zapata, to call 911.
Zapata dialed 911 as she hurried to her neighbor's aid.
Zapata saw that the victim had been beaten, her mouth was
bloody, and she was hysterical. The eighty-one-year-old
victim screamed at Zapata, asking if the man had been
apprehended and stating that she had been raped repeatedly.
After Zapata calmed the victim, Zapata served as a conduit
between the 911 operator and the victim, relaying the
victim's age, location, name, and what had happened to
The police arrived minutes later. Detective David Albers,
while interviewing the victim in her house, noticed that she
had swelling and redness to her face and that her lip was
bleeding. The victim was crying and shaking as she told
Detective Albers what had happened. Thereafter, the
paramedics arrived, and the victim told paramedic Kent
Jeffries what had happened to her.
While at the hospital, the victim told the treating physician
that she had been raped and beaten. A nurse collected a rape
kit, which included two vaginal swabs. The nurse also
physically examined the victim. The victim had bruising on
her face, neck, hand, and knees and injuries to her vaginal
area that were consistent with trauma. When a detective
visited the victim at the hospital to obtain more details
about the assailant, the victim was withdrawn and provided no
additional information. Another detective visited some days
later, but the victim still provided no assistance for
identifying the assailant. A suspect sketch could not be
created with the limited information provided to the police.
Examination of the rape kit revealed sperm cells on one of
the vaginal swabs. Lisa Dowler, a lab technician, conducted
DNA testing on the swab; she concluded that the swab
contained the victim's genetic profile and the genetic
profile of an unknown male. The unknown male's profile
was placed in the DNA database in 2000. Thereafter, the
victim was notified that the case had been inactivated
(closed) because there were no leads.
In February 2007, the DNA database linked Birmingham to the
unknown male profile. In July 2007, the police interviewed
Birmingham, informing him that he was a suspect in an
unsolved crime that occurred in December 1999. After seeing
the picture of the victim's house but before the
detective told him about the specifics of the unsolved crime,
Birmingham denied hurting an “old lady.” A buccal
(inside cheek) swab was taken from Mr. Birmingham at the
conclusion of the interview.
In August 2007, DNA testing was performed on Birmingham's
swab. The results matched the 2000 genetic profile of the
unknown male. Thereafter, Birmingham was charged with
first-degree burglary, first-degree assault, second-degree
robbery, and three counts of forcible rape.
Before trial, counsel requested, and was granted, permission
to independently test the same vaginal swab tested by the
technician at Dowler's lab. When making arrangements to
have the swab transferred to the defense expert, trial
counsel was advised that the vaginal swab he requested had
been completely consumed in the initial testing.
Consequently, counsel was offered the second swab for
independent testing purposes. Counsel accepted the offer to
test the second swab, but the second swab did not contain any
semen or epithelial cells. During trial, when counsel
cross-examined Dowler, counsel learned for the first time
that, although the first swab had been consumed, the DNA
extracted from it was still available for retesting. Counsel
then sought a mistrial and a continuance. The trial court
denied both, noting that:
swab 2 was provided to the defense with all the other data,
reports, and information regarding the testing of swab 1;
that defense provided that data testing, graphs, reports,
etc., regarding swab 1 to its expert, as well as the actual
swab No. 2; and that after consulting with its expert
obviously felt there was nothing that was going to be gained
by calling that expert as a witness with respect to the data
reviewed on swab 1, nor on doing further testing regarding
The jury found Birmingham not guilty of one count of forcible
rape and second-degree robbery but guilty of one count of
forcible rape, first-degree burglary, and first-degree
assault. The trial court sentenced Mr. Birmingham
to life imprisonment for forcible rape and thirty years each
for the burglary and assault convictions. The thirty-year
terms were ordered to run concurrent to each other but
consecutive to the life sentence.
Doc. #7-11, at 2-4. Petitioner appealed his conviction to the
Missouri Court of Appeals, and his conviction was affirmed.
Doc. #7-5; Birmingham v. Mo., 471 S.W.3d 398 (Mo.Ct.
sought post-conviction relief under Missouri Supreme Court
Rule 29.15. Doc. #7-6, at 9-50, and Doc. #7-7, at 1-16.
Appointed counsel filed an amended motion alleging, among
other things, trial counsel was ineffective for (1) failing
to request independent testing of the first vaginal swab and
DNA obtained from it, and (2) failing to seek suppression of
Birmingham's statements to an investigative detective.
Doc. #7-8, at 4-83. A hearing was held on Petitioner's
motion. Doc. #7-12. Thereafter, Petitioner's motion was
denied. Doc. #7-8, at 86-94. Petitioner appealed the
court's decision to the Missouri Court of Appeals, which
affirmed the decision. Doc. #7-8, at 96; Doc. #7-11.
articulates seven bases for his Petition in this Court: (1)
trial counsel provided ineffective assistance of counsel for
failing to call an alibi witness; (2) trial counsel,
appellate counsel, and post-conviction relief counsel
provided ineffective assistance of counsel for failing to
conduct independent expert DNA testing on the victim's
swimsuit; (3) appellate counsel provided ineffective
assistance of counsel when he failed to argue on direct
appeal that the trial court erred in not granting a
continuance of the trial date; (4) trial counsel provided
ineffective assistance of counsel for failing to request that
the trial court enter an order for independent testing of DNA
extracted and still available for testing; (5) appellate
counsel provided ineffective assistance of counsel for
failing to argue on direct appeal that the trial court erred
in overruling Petitioner's motion for mistrial; (6) trial
counsel provided ineffective assistance of counsel when he
failed to file a motion to suppress and request an
evidentiary hearing pertaining to Petitioner's statements
to a detective in July 2007; and (7) appellate counsel and
post-conviction relief counsel provided ineffective
assistance of counsel when they failed to raise the
court's denial of trial counsel's motion to withdraw.
Doc. #1, at 13-37.
to the Antiterrorism and Effective Death Penalty Act
("AAEDPA"), which amended 28 U.S.C. § 2254, a
writ of habeas corpus shall not be issued on a claim
litigated on the merits in state court unless the state
court's decision either:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...