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Birmingham v. Pash

United States District Court, W.D. Missouri, Western Division

April 3, 2017

TERRY BIRMINGHAM, Petitioner,
v.
RONDA J. PASH, Warden, Crossroads Correctional Center, Respondent.

          ORDER AND OPINION (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING ISSUANCE OF CERTIFICATE OF APPEALABILITY, AND (3) DISMISSING MATTER WITH PREJUDICE

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending 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.

         I. BACKGROUND

         The underlying facts were summarized by the Missouri Court of Appeals:

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 her.
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.[1]
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 swab 2.
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.[2] 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. App. 2015).[3]

         Petitioner 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.

         Petitioner 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.

         II. DISCUSSION

         Pursuant 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 ...

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