United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on the petition of DeWayne White
for a writ of habeas corpus pursuant to 28 U.S.C. §
DeWayne White is presently incarcerated at the Southeast
Correctional Center pursuant to the sentence and judgment of
the Circuit Court of St. Louis County. On December 1, 2010, a
jury found petitioner guilty of two counts of statutory
sodomy in the first degree, in violation of Mo. Rev. Stat.
§ 566.062; child molestation in the first degree, in
violation of Mo. Rev. Stat. § 566.067; endangering the
welfare of a child in the first degree, in violation of Mo.
Rev. Stat. § 568.045; and two counts of furnishing
pornography to a minor, in violation of Mo. Rev. Stat. §
573.040. Resp.'s Ex. D at 50-55. The trial court
sentenced petitioner as a prior offender to concurrent terms
of life on the statutory sodomy charges, fifteen years on the
child molestation charge, seven years on the endangerment
charge, and one year on each charge of furnishing pornography
to a minor. Resp.'s Ex. D at 63-67. Petitioner appealed
his conviction, and on January 17, 2012 the Missouri Court of
Appeals affirmed. State v. White, 356 S.W.3d 880
(Mo.Ct.App. 2012); Resp.'s Ex. E.
filed a timely motion for post-conviction relief pursuant to
Missouri Supreme Court Rule 29.15, which the post-conviction
court denied without holding an evidentiary hearing.
Resp.'s Ex. H. On November 19, 2013, the Missouri Court
of Appeals affirmed the denial of post-conviction relief.
White v. State, 414 S.W.3d 49 (Mo.Ct.App. 2013);
Resp.'s Ex. L. On August 4, 2014, petitioner timely filed
this petition for relief pursuant to 28 U.S.C. § 2254.
factual findings of the state court are as follows:
26, 2009, O.C. was visiting her friend K.W.'s house for a
sleepover. Resp.'s Ex. A, Tr. 140-41. O.C. and K.W. were
both 12 years old at the time. Tr. 139-40, 173. K.W.'s
mother was in the hospital, and petitioner, K.W.'s
32-year old stepfather, was responsible for the care of O.C.,
K.W., and K.W.'s 6-year old brother. Tr. 140, 174.
Petitioner picked up his 22-year old nephew Lee Magee that
afternoon and they barbequed and drank beer outside. Tr. 124,
241. Petitioner told Magee that O.C. liked him. Tr. 125.
on that evening, petitioner, Magee, K.W. and O.C. were
sitting on a couch in the living room watching a movie when
petitioner instructed O.C. to sit closer to Magee until she
was sitting on his lap. Tr. 143-44. Petitioner then told
Magee to take her to a bedroom and “fuck her up.”
Tr. 144. After O.C. told Magee she was uncomfortable, they
returned to the living room. Magee asked O.C. to hold his
beer and petitioner told her to drink some of it. Tr. 146.
Magee asked petitioner permission to take O.C. back into the
bedroom. Petitioner told Magee he could “use his hands
and tongue, but not his dick.” Tr. 128, 147, 212.
bedroom, Magee laid O.C. on the bed, pulled down her pants,
kissed her on the mouth, touched her breasts, inserted his
fingers into her vagina, and used his mouth on her genitals.
Tr. 148. K.W. knocked on the door twice while Magee was with
O.C. in the bedroom, interrupting them. Tr. 129, 177. Magee
left the room to tell petitioner that O.C. “wanted it
all” and that “her pussy was wide.” Tr.
212. Petitioner told Magee that this wasn't the way it
was supposed to happen and Magee needed to leave. Petitioner
drove Magee home in the middle of the night. Tr. 151.
Petitioner apologized to O.C. in the car ride back to
K.W.'s house, stating that “this wasn't the way
it was supposed to go” and he would train her how to
have sex the next time she came over to K.W.'s house. Tr.
169, 212. Petitioner made O.C. swear she wouldn't tell
anyone about what happened that night and threatened her. Tr.
the house, petitioner turned the television to a channel with
pornography while K.W. and O.C. were with him in the living
room. Tr. 151.
touched O.C.'s breasts and told her he was horny, but
then fell asleep. Tr. 152-53. The next day O.C. texted her
older cousin about what had happened and her cousin
encouraged her to tell her mother. O.C. stated that she was
trying to find a way to go to the doctor by herself.
Marietta, a forensic interviewer with the Children's
Advocacy Center (CAC), also testified at trial. Tr. 197-98.
On June 30, 2009, Marietta interviewed O.C. Tr. 203. The
interview was recorded and a portion of it was played at
trial. Tr. 212-17. O.C. told Marietta that while she was at
her friend K.W.'s house the week before, petitioner had
touched her breast and Magee had performed sex acts on her
facilitated by petitioner. Tr. 207-08. Petitioner warned O.C.
not to tell anyone about what happened, stating that he was
involved with the Blood gang, had stabbed people, had spent
ten years in the penitentiary and had been shot at in the
past. Tr. 208.
testified on his own behalf that he did not instruct Magee to
have sexual contact with anyone and did not see Magee do
something he considered to be wrong. Tr. 236. Petitioner
stated that he took Magee home late in the evening on June
26th, because his stepdaughter K.W. asked him to do so. Tr.
236-37. He did not know why she had asked him to. Petitioner
also testified that he had turned the television to
pornography while he was flipping through ...