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 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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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.)
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.)
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.
Standard of Review
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, 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.
Sufficiency of the Evidence (Grounds 1 and 2)
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 ...