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Harden v. Bowersox

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

April 12, 2017

JOSEPH HARDEN, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on Petitioner Joseph Harden's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Respondent Michael Bowersox filed a response to the Petition for Writ of Habeas Corpus. [Doc. 7.] The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 8.] For the reasons set forth below, Harden's petition for writ of habeas corpus will be granted in part and denied in part.

         I. Background

         After a bench trial, Harden was convicted of first degree murder, first degree robbery, and two counts of armed criminal action. (Resp't Ex. A at 67-69.) He was sentenced to concurrent terms of life imprisonment for the murder and robbery counts. Id. He was further sentenced to concurrent terms of ten years for the armed criminal action counts, to run consecutive to his life sentence. Id. The following evidence, in the light most favorable to the verdict, was presented at trial.[1]

         On July 7, 2008, a man named Al Harper (Al) paid Harden $70 to drive to Dyersburg, Tennessee to pick up a friend named Danny Singletary (Danny) and bring him back to Al's house in Paragould, Arkansas. Al had invited Danny to stay with him for a week or two. Danny knew Harden because he had married Danny's sister-in-law. Harden's name is tattooed in large letters across Harden's back and shoulders. While Harden was at Al's house, Danny saw Harden pull out a three-inch knife with a black handle while they were making sandwiches. Harden returned home to Kennett, Missouri. Later that night, after receiving a telephone call from Danny, Harden returned to Paragould. Al, Danny and Harden eventually drove together from Paragould to Dyersburg in order to “get more clothes and drugs.” Danny was driving. At that point, all three men had been drinking and using crack cocaine.

         The men were traveling through Hayti, Missouri at about 3:30 a.m. on July 8th when Danny ran the car off the road while attempting to pass a semi-truck. Despite blowing out both tires on the driver's side of the car, Danny managed to get the vehicle back on the road before being pulled over by Officer Jones, a Hayti police officer. Danny was arrested for driving while intoxicated. Officer Jones did a pat down search of Harden and found a pocket knife, but the knife posed no threat to the officer. Officer Jones' report did not indicate that the pocket knife was taken from Harden. Officer Jones observed that Harden was wearing a white sleeveless t-shirt, black jeans, a red baseball cap and boots. Al was wearing a camouflaged hat, a white t- shirt with sleeves, blue jeans and sandals. At about 4 a.m. Harden and Al were released by Officer Jones.

         Harden and Al then walked to an ATM at a bank near the location where Officer Jones had stopped their vehicle. Bank records showed that Al's debit card was used to make two separate withdrawals, for $20 and $200, at 4:23 a.m. and 4:25 a.m. An ATM surveillance video showed Al making the withdrawals and giving Harden some of the cash. At about 5:45 a.m., Harden called a friend from a pay phone at Brown's Grocery and asked him to pick Harden up and take him to Kennett. The friend was not able to do so because he had a doctor's appointment. Around this time, a motorist driving past Brown's Grocery saw two men, one on the phone and the other sitting down.

         Between 7:00 a.m. and 7:30 a.m., two passing motorists saw a shirtless man wearing· jeans walking along the highway near a farm shop that was about 250 to 300 yards from Brown's Grocery. One of the motorists observed that this person was "coming out from'' the farm shop. The other motorist, who was the owner of the farm shop, noticed approximately inch-tall letters tattooed across the upper part of this person's back. He also noticed this person carrying something in one of his hands.

         When the farm shop owner arrived at his business, he walked out behind his shop and found Al. He was lying on the ground face up and appeared dead. There was a white t-shirt covering his head and face. The shop owner immediately called the sheriff's department, and a deputy soon arrived at the scene. On the west side of the shop at an area visible from the road, the deputy found blood and drag marks indicating that someone had been dragged from that spot to a location behind the building that could not be seen from the road.

         Al's head and face had been crushed with some sort of blunt object. In a field behind the shop, police recovered a large concrete block with blood on it. Forensic testing showed that the blood stains on the block were consistent with Al's DNA. The autopsy report stated that Al's death was a homicide, and the primary cause of death was massive blunt trauma to the head. Al's neck and throat had been slashed multiple times, and he had 36 stab wounds to his chest. Al's throat had been cut while he was alive, but the stab wounds to his chest appeared to have been inflicted post-mortem. The report also stated that Al was "grossly intoxicated and potentially stuperous" at the time he was killed.

         Sometime after 7:30 a.m., Harden was seen in a neighborhood about one-half mile from the farm shop where a woman and her son, Donald Booth, were trying to load an abandoned television on the roadside into their truck. Harden helped the pair load the television and then unload it at the woman's house. Booth saw Harden throw a t-shirt and a hat underneath some steps on an adjacent vacant lot. Police later recovered a white sleeveless t-shirt and a camouflaged baseball cap from that lot. Forensic tests showed that the mixture of DNA on the t-shirt was consistent with the DNA profiles of both Harden and Al. DNA found inside the hat was consistent with Al's DNA profile.

         After the television was unloaded, the woman drove Harden to Kennett. She dropped Harden off at a Wal-Mart. He entered the store shirtless at 8:25 a.m. When a Wal-Mart employee asked Harden why he had no shirt, Harden said he had been soaked with gasoline while working on his vehicle. Harden purchased a pair of pants, a belt, a shirt and a pair of shoes. He told the employee to throw away his old jeans for him. Police later recovered the jeans, and DNA testing revealed that the large blood stains covering the jeans were consistent with Al's DNA. In addition, a mixture of Harden's DNA and Al's DNA was found on the inside of the waistband of Harden's jeans.

         Law enforcement officers discovered Al's black leather wallet inside a trash can at the parking lot of Brown's Grocery. The wallet contained pictures and a debit card but there was no cash inside it. There were no fingerprints or DNA on the wallet. Police also found a knife near the edge of a bean field between the grocery store and the farm shop where Al's body was found. At trial, Danny identified the knife as the same one Harden had taken out at Al's house the night before the murder. The blood on the knife was tested for DNA and the results were consistent with Al's DNA.

         Harden testified at trial. He denied robbing Al, killing him or having any weapons that night. Harden admitted that he was with Al at the ATM when Al made the two cash withdrawals. Harden testified that Al gave him about $75 for picking up Danny in Dyersberg. Harden also testified that, as he and Al were walking away from the bank, Al fell down face-first onto some railroad tracks and rolled into a ditch. According to Harden, Al's blood got on Harden's pants when he pulled Al out of the ditch. Harden also claimed that he gave his shirt to Al so he could wipe his face. Harden claimed that he and Al separated after he went to help the woman and her son load the television into their truck.

         Harden was convicted of first degree murder, first degree robbery, and two counts of armed criminal action for using the concrete block as a dangerous instrument in the commission of the underlying offenses. Following his conviction, Harden filed a direct appeal challenging the sufficiency of the evidence on all four counts. (Resp't Ex. D.) The Missouri Court of Appeals affirmed the verdict. (Resp't Ex. G.)

         Following his direct appeal, Harden 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. I at 4-26.) Post-conviction counsel filed an amended motion, arguing that trial counsel had been ineffective in not moving to dismiss based on prosecutorial vindictiveness and in not moving to strike the testimony of Donald Booth. Id. at 43-65. The post-conviction motion court held a hearing and denied the motion. (Resp't Ex. J.) The Court of Appeals affirmed. (Resp't Ex. N.)

         Harden then filed his Petition for Writ of Habeas Corpus in this court on February 27, 2014. [Doc 1.] The Respondent filed a response in opposition. [Doc 7.] Harden filed a reply. [Doc. 11.]

         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, Harden reasserts the claims raised in his direct appeal and his amended post-conviction motion. In Grounds 1 and 2 of his petition, he reasserts his sole points on appeal, that there was insufficient evidence to support his convictions for first degree robbery and first degree murder and corresponding armed criminal action convictions, and argues that the decision of the Court of Appeals to the contrary involved an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319 (1979). In Grounds 3 and 4, he reasserts the claims raised in his amended post-conviction motion that his trial counsel was ineffective in not moving to dismiss based on prosecutorial vindictiveness and in not moving to strike the testimony of Donald Booth. Respondent argues that the decisions of the state courts denying Harden's claims on the merits are reasonable and entitled to deference. For the following reasons, Harden's petition will be granted with respect to his challenge to the sufficiency of the evidence supporting his first degree robbery conviction and corresponding armed criminal action conviction, and denied in all other respects.

         A. Sufficiency of the Evidence (Grounds 1 and 2)

         “[T]he Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure.” Id. at 363. “It is a prime instrument for reducing the risk of convictions resting on factual error [and] provides concrete substance for the presumption of innocence.” Id. “[U]se of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law.” Id. at ...


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