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Cooper v. Steele

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

May 17, 2017

PATRICK R. COOPER, Petitioner,
v.
TROY STEELE and JOSH HAWLEY, [1] Respondents.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Petitioner Patrick R. Cooper seeks federal habeas relief from a Missouri state court judgment entered after a jury trial. See 28 U.S.C. § 2254. For the reasons set forth below, the Court denies the petition.[2]

         I. Background

         The State of Missouri charged Petitioner with committing: statutory rape in the first degree, in violation of Mo. Rev. Stat. § 566.032, between April 17, 2007 and April 16, 2008 (Count I); statutory sodomy in the first degree, in violation of Mo. Rev. Stat. § 566.062, between April 17, 2007 and October 15, 2008 (Counts II through V); and incest, in violation of Mo. Rev.

         Stat. § 568.020, between April 17, 2007 and October 15, 2008 (Count VI).[3] Each of the six charged offenses occurred at the same location in St. Louis County, Missouri and involved one minor female (“Victim”).[4] With respect to the first-degree statutory rape (Count I), the State charged Petitioner “knowingly had sexual intercourse with [Victim], a child less than twelve years old.”[5] With regard to the four counts of first-degree statutory sodomy, the State charged that, “for the purpose of arousing or gratifying the sexual desire of [Petitioner] he had deviate sexual intercourse with [Victim], who was then a child less than fourteen years old, ” by placing: “his penis in [Victim]'s anus” (Count II), “his mouth on [Victim]'s genitals” (Count III), “his hand on [Victim]'s genitals (Count IV), and “[Victim]'s hand on his genitals” (Count V).[6] For the incest offense, the State charged Petitioner “engaged in deviate sexual intercourse with [Victim] whom [Petitioner] knew to be his descendant by blood” (Count VI).[7]

         Trial Court Proceeding

         Prior to trial, Petitioner filed a request for discovery seeking numerous items, including “the statements of all persons who have been interviewed by an agent of the State in connection with the subject matter of this cause and whom the State does not presently intend to call at trial together with their names and last known addresses”; notes, memoranda, or summaries “of any oral statements made to an agent of the State by any person in connection with the subject matter of this cause”; and “[t]he names and addresses of all persons who may have some knowledge of the facts of the present case.”[8] Petitioner subsequently filed a supplemental motion for discovery and order for records seeking an order directing the “Children's Division to release any and all records, reports, ‘hotline' calls, reports and evaluations done by the Family Court of St. Louis County and any reports, evaluations done by any residential placement with regard to” Victim, her two younger siblings, and two other individuals.[9] The trial court granted Petitioner's supplemental motion with regard to Victim's records and other materials, and denied it in other respects, except to the extent the requested materials included information the State was otherwise under a duty to disclose.[10]

         The State filed a notification of intent to use child's statements under Section 491.075 RSMo.[11] The trial court held a two-day hearing on the State's notification (“491 hearing”).[12] At the conclusion of the 491 hearing's first day, Petitioner's trial attorney entered her appearance and the trial court granted Petitioner's former attorney leave to withdraw.[13] In addition to cross-examining the witnesses during the second day of that hearing, Petitioner's trial attorney reported that, with the concurrence of Petitioner, Petitioner was not filing a motion to suppress the statement he made to the police.[14]

         On the first day of the five-day jury trial, the trial court conferred with counsel to discuss the State's motion in limine and the parties engaged in voir dire examination of potential jurors.[15] During trial, the State introduced a number of exhibits, including drawings by Victim, several of Victim's medical records, Petitioner's written statement to the police, and a recording of Victim's interview at the Children's Advocacy Center (“CAC”), which was played for the jury.[16] The State also presented the testimony of Victim[17] and four adults with whom Victim discussed Petitioner's conduct. Karen McElroy, a teacher at Victim's school, was the person to whom Victim first reported Petitioner's conduct on October 21, 2008.[18] Dr. Inna Treskov, a pediatrician at Cardinal Glennon Children's Hospital's emergency room, examined Victim soon after she reported Petitioner's conduct.[19] Megan Fitzgerald Marietta, a forensic interviewer employed by Children's Advocacy Services of Greater St. Louis interviewed Victim and two of her siblings, a younger brother and sister, at the CAC on October 27, 2008.[20] Detective Angela Bruno, a detective with the St. Louis County Police Department, [21] engaged in what is referred to as a “cursory interview” of Victim and her younger siblings at their home in October 2008, and later arrested Petitioner.[22]

         Victim testified Petitioner “tried to have sex with [her] . . . [i]n the bathroom, the bedroom, and sometimes [on the couch] in the living room” of their home.[23] She stated Petitioner took naps on the end of his bed with Victim on one side of him and Victim's younger siblings on the other side of him.[24] She described his conduct on the bed as putting his “private spot” in hers, then “[t]he bed would [shake], ” “[i]t hurt” her, his breathing “would get heavy, ” and then “[t]here would be like . . . spots” on the sheets that he “would try to wipe . . . up.”[25]She testified it happened many times when she was eleven or twelve years old.[26] Victim also stated “[m]ore than once” Petitioner put his finger in her front private spot, and he would put “[h]is private spot” in her “back private spot” on her “butt” where “poop” comes out, and Petitioner took her hand and put it on his “private part.”[27] Sometimes while on the bed, Victim described, Petitioner would unzip his pants, pull Victim's panties down to her knees, and put his penis in Victim's “butt” or vagina.[28] Additionally, Victim stated, Petitioner would “put his tongue to [and lick her] private spot” after he placed her on the sink in the bathroom; and he would “grab” her hand and touch “his private spot.”[29] Victim testified this conduct occurred when she was eleven years old.[30]

         Detective Bruno testified that, during her post-arrest interview of Petitioner, he at first denied “anything happen[ed], ” and then admitted that, when his wife was at work, he took “naps” with Victim and her two younger siblings on his bed, with him lying next to Victim and Victim's siblings lying on the other side of Petitioner.[31] Detective Bruno asked Petitioner whether, during these “naps, ” he “performed oral sex” on Victim, “placed [Victim]'s hand on his penis, ” and “touched [Victim]'s vagina with his hands . . . placing his finger in [Victim's] vagina.”[32] Petitioner responded affirmatively to those questions, and responded negatively to Detective Bruno's question whether he had sexual intercourse with Victim.[33] After further discussion of his Miranda rights, Petitioner wrote a statement that did not include the information he provided when Detective Bruno questioned him.[34]

         At the conclusion of the State's case, Petitioner filed a motion for judgment of acquittal at the close of the State's evidence. The trial court denied Petitioner's motion.[35]

         In the defense case, Petitioner presented five other witnesses[36] and testified himself.[37]Clarence Leroy Henke (“Roy Henke”), Petitioner's brother, and his wife, Rhonda Henke, stated they took care of Victim and her two younger siblings at their home on numerous occasions, both while Petitioner and his wife worked and then, after Petitioner's arrest, as foster parents, except that Victim was placed with a different foster parent after a few months.[38] Gena Morice, whose husband is the brother of Petitioner's wife, and who has a son named Robert Engle or “Bobby, ” testified that, prior to the incidents involving Petitioner, Victim had accused Bobby of inappropriately touching her and then, when talking about the accusation with Ms. Morice, told Ms. Morice that she “was lying [or “didn't tell the truth”] about the whole incident, ” and the accusation was not further investigated.[39] Stacy Cooper, Petitioner's wife and Victim's stepmother, testified in relevant part that (1) she was asked not to speak with Victim or her siblings after Victim reported the incidents involving Petitioner and (2) she did not answer or respond to telephone calls Victim made to Ms. Cooper's home leaving messages that she was “sorry.”[40]Lionel Morice, Stacy Cooper's father and Petitioner's father-in-law, testified Stacy Cooper had lived with him since Victim's report of the incidents and Mr. Morice had suggested to her that she turn Petitioner's children “over to social services, Children's Services.”[41]

         At the close of all the evidence, Petitioner filed a motion for judgment of acquittal at the close of all the evidence. The trial court denied Petitioner's motion.[42]

         In its instructions, the trial court directed the jury to base its decision “only on the evidence presented to [the jury] in the proceedings in th[e] courtroom.[43] Additionally, the trial court instructed the jury:

[t]he charge of any offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty of an offense.
The defendant is presumed to be innocent, unless and until, during your deliberations upon your verdict, you find him guilty. This presumption of innocence places upon the state the burden of proving beyond a reasonable doubt that the defendant is guilty.[44]

         (Footnore added.)

         With regard to the offenses, the trial court defined “deviate sexual intercourse” as:

any act involving the genitals of one person and the hand, mouth, tongue, or anus of another person or a sexual act involving the penetration, however slight, of the male or female sex organ or the anus by a finger, instrument or object done for the purpose of arousing or gratifying the sexual desire of any person.[45]

         (Footnote added.) With regard to the incest offense in Count VI, the trial court instructed the jury:

if you find and believe from the evidence beyond a reasonable doubt:
First, that between April 17th, 2007 and October 15th, 2008, in the County of St. Louis, State of Missouri, [Petitioner] engaged in deviate sexual intercourse by placing his penis in [Victim]'s anus or by placing his mouth on [Victim]'s genitals or by placing [Victim]'s hand on his genitals, and
Second, that [Victim] was a descendant of [Petitioner] by blood, and
Third, that [Petitioner] knew of such relationship with [Victim] at the time referred to in paragraph First,
Then you will find [Petitioner] guilty under Count VI of incest.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find [Petitioner] not guilty of that offense.
As used in this instruction, the term “deviate sexual intercourse” means any act of sexual gratification between persons not lawfully married to one another, involving the genitals of one person and the mouth, tongue, or anus of another.[46]

         (Footnote added.) Additionally, the trial court instructed:

As to Count VI, unless you find and believe from the evidence beyond a reasonable doubt that between April 17th, 2007 and October 15th, 2008, in the County of St. Louis, State of Missouri, [Petitioner] engaged in deviate sexual intercourse by placing his penis in [Victim]'s anus or by placing his mouth on [Victim]'s genitals or by placing [Victim]'s hand on his genitals, then you must find [Petitioner] not guilty of incest under Count VI . . . .[47]

         (Footnote added.)

         While deliberating, the jury sent the trial court several notes, including four regarding its inability to agree on a verdict for Counts I and II.[48] The first of the four notes regarding the status of their deliberations stated the jury had reached a verdict on Counts III through VI but was “split on” Counts I and II and asked: “Does it have to be 100% FOR or 100% against to reach a verdict in those two charges?”[49] With the agreement of the parties, the trial court responded “[t]he verdict on each count must be unanimous.”[50] The next note received from the jury stated: “We still cannot agree on 1 and 2 but we are firm on 3 thru 6. Right now we are at 10 [not guilty] ¶ 2 [guilty]. If this stays true do we have a hung jury for the whole trial or just Counts 1 and 2.”[51] After conferring with counsel for both parties, the trial court decided to call the jury into the courtroom to review the verdicts on Counts III through VI and, if they were guilty verdicts, return the next day for continued deliberations and the punishment phase, or if they were not-guilty verdicts, give the jury the choice whether to continue deliberations the next day.[52] The jury returned to the courtroom at 9:55 p.m. The trial court accepted the guilty verdicts on Counts III through VI, after polling the jurors at Petitioner's request. The trial court recessed the proceedings until the next morning at 10:30 a.m.[53]

         Early the next afternoon, the jury gave the trial court a note stating “[a]t this point . . . we are not going to change the mind of everybody to make it 100% either way. As of now we stand with” 8 guilty and 4 not guilty for Count I and 9 guilty and 3 not guilty for Count II.[54] The prosecutor asked the trial court to allow the jury to “keep deliberating” for up to an hour and Petitioner asked for a mistrial because the jury deliberated at length the prior day and three hours that day.[55] The trial court stated it was “going to grant the defense request to declare the jury hung on Counts 1 and 2” because they had deliberated approximately six hours the day before and three and a half hours that day.[56] The trial court stated it “was going to bring [the jurors] in and let them know that we are going to begin the punishment phase.”[57]

         Before the jury returned to the courtroom, however, the trial court and counsel conferred about instructions the State had prepared for the punishment phase.[58] During the conference, the trial court received a note from the jury stating it had “changed all verdicts and we are now 11-1 on both counts but [the jury foreperson did not] think we can reach 100%.”[59] The prosecutor asked the trial court to allow the jury to keep deliberating, while Petitioner objected that the trial court's failure to respond to the last note and then send them lunch “was highly prejudicial” to Petitioner because it “may be read . . . by some as a subtle hint to, hey, you're heading in the right direction. Just keep going and maybe you can turn that one person around.”[60] The trial court decided to send lunch to the jury because it was “nearly 2:30” and not to either declare a mistrial or “respond in writing to th[e] latest note.”[61] At about 3:15 p.m., the trial court received a note from the jury stating they had “come to an agreement on Counts 1 and 2.”[62] The jury found Petitioner guilty of Counts I and II, and the trial court accepted the verdicts after polling the jury.[63]

         During the punishment phase, the State presented no additional evidence and Petitioner presented the testimony of Ms. Cooper, Mr. Morice, Mr. Henke, and Petitioner.[64] The prosecutor pointed out during closing argument in the punishment phase that the jury's sentencing assessment was a “recommendation” and the trial court “makes the final determination of sentence.”[65] More specifically, the prosecutor argued:

Only the Judge can run the counts concurrently or consecutively. You will simply look at the jury instruction and . . . fill in a number, and that's simply a recommendation. The Court makes the final determination of sentence. You simply make a recommendation. It's an important recommendation. I'm not downplaying your responsibility, but it's a recommendation that you're making. The Court, some months from now, will impose final sentencing, and I ask you again consider the full range of punishment, including life, if you think that's appropriate in this case, for violating this young girl repeatedly, intentionally, many, many times, some of the worst acts we can even imagine.[66]

         (Footnote added.) While instructing the jury it “should consider . . . the argument of counsel, ”[67] the trial court also instructed the jury the arguments of counsel “are not evidence.”[68] The jury assessed punishment at seventeen years for the first-degree statutory rape offense, five years for each of the four first-degree statutory sodomy offenses, and three years for the incest offense.[69]The trial court polled the jury before accepting the verdicts.[70]

         Petitioner filed a motion for judgment of acquittal notwithstanding the verdict of the jury or in the alternative for a new trial (“motion for new trial”).[71] In relevant part, Petitioner based his motion for new trial on post-verdict statements two jurors made to defense counsel allegedly demonstrating “the jury did not deliberate in accordance with the Instructions.”[72] Petitioner reported one juror stated two others “had stated that they felt [Petitioner] was guilty before any deliberations had started” and the jurors “interpreted the Court's silence [in response to the jury's notes about being deadlocked] as directing them to continue to move toward guilty verdicts on Counts 1 and 2.”[73] Additionally, Petitioner stated, the second juror, who was the foreperson, “indicated that he felt that [Petitioner] had to be guilty merely due to the fact that the charges had been filed.”[74] Petitioner argued “some of the issues” raised in the motion for new trial, “particularly regarding some of the jury comments” rose “to the level of an evidentiary hearing.”[75]

         Before sentencing Petitioner, the trial court denied Petitioner's motion for new trial and evidentiary hearing.[76] The trial court imposed a twenty-year term of imprisonment consisting of seventeen years for the first-degree statutory rape offense and five years for each of the four first-degree statutory sodomy offenses, with those sentences running concurrently to each other, plus three years for the incest offense, with that sentence running consecutively to the concurrent sentences on the first five offenses.[77]

         After imposing sentence, the trial court examined Petitioner under oath “regarding the assistance of counsel that [Petitioner] received throughout the trial, and throughout the proceedings.”[78] Petitioner acknowledged his trial attorney examined all of the State's witnesses, called several witnesses on Petitioner's behalf, did not fail to contact or call any witnesses Petitioner wanted her to present at trial, did not refuse to do anything Petitioner asked her to do to represent him, and did not do anything Petitioner asked her not to do in her representation of him.[79] Petitioner also stated he was satisfied with the legal services received from his trial attorney.[80]

         Direct Appeal

         In his timely direct appeal, Petitioner presented four points.[81] First, Petitioner argued the trial court violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments by coercing verdicts on Counts I and II through its reversal of the grant of a mistrial as to Counts I and II, failure to declare a mistrial when the jury continued to be deadlocked, and refusal to respond to the jury's notes about its deadlock.[82] In his second point, Petitioner contended the trial court denied his Sixth and Fourteenth Amendment rights to due process and a fair trial by an impartial jury by denying Petitioner's motion for a new trial and request for a hearing on his allegations of juror misconduct.[83] Petitioner asserted in his third point the trial court violated his Fourteenth Amendment rights to due process and a fair trial by not sua sponte striking or declaring a mistrial in response to the prosecutor's closing argument in the penalty phase that the jury's assessment of the sentences was “simply a recommendation.”[84]

         For his fourth point, Petitioner urged the trial court violated his rights to due process, a fair trial, a unanimous verdict, and freedom from double jeopardy under the Fifth, Sixth, and Fourteenth Amendments by including the first paragraph of the verdict-directing instruction for the incest offense. Specifically, Petitioner contended the first paragraph of that instruction allowed the jury to find Petitioner guilty of incest based on any one of three suggested predicate acts of deviate sexual conduct so that the jury could find Petitioner guilty of the offense without unanimously finding Petitioner engaged in the same predicate act.[85]

         The Missouri Court of Appeals affirmed the judgment.[86] The Court of Appeals first described the background of the case as follows:

[Petitioner] was charged with one count of first degree statutory rape, four counts of first degree sodomy, and one count of incest based on allegations that he had sexually abused his 11-year-old daughter, who disclosed information about the alleged abuse to her teacher. A week later, police questioned [Petitioner], who initially denied the allegations but then admitted . . . the abuse.
At trial, [Petitioner] testified that he had never sexually abused his daughter. The jury returned guilty verdicts on all charges and recommended sentences of seventeen years for the statutory rape charge, five years for each sodomy charge, and three years for the incest charge. Following the jury's recommendation, the trial court sentenced [Petitioner] to twenty years imprisonment.[87]

         (Footnote added.)

         With regard to Petitioner's first point challenging the verdicts on Counts I and II as coerced based on the trial court's “reconsider[ation of] its initial grant of a mistrial, fail[ure] to ultimately declare a mistrial, and [failure to] respond[] to jury notes regarding the deadlock, ” the Court found Petitioner “did not preserve any of the three alleged errors for appeal” and reviewed the point for plain error only.[88] The Court concluded Petitioner

did not suffer manifest injustice[, which is required for plain error, ] when the trial court refused to grant a mistrial and instead allowed the jury to continue deliberations without responding to their notes regarding their deadlock. The length of time which a jury is allowed to deliberate is within the sound discretion of the trial court. State v. Snider, 869 S.W.2d 188, 192 (Mo. [Ct.] App. . . . 1993). The trial judge may attempt to facilitate a verdict by giving no additional instruction and allowing further time for deliberation even when a jury indicates that further deliberations would not be helpful in resolving the deadlock. State v. Anderson, 698 S.W.2d 849, 853 (Mo. banc 1985). The record shows that after advising the jury that any verdict needed to be unanimous, the trial court planned to declare a mistrial on the two undecided counts, but then the jury sent another note indicating progress in deliberations. Because the jury had continued deliberating on its own, the trial court made the decision to let the deliberations continue without a response, and within the hour, the jury reached a unanimous verdict on both counts. Nothing in the record indicates that the trial court said or did anything that implied the jury had to reach a verdict. The record also shows that the jury was polled, with each juror affirming his or her guilty verdict. The record further shows that the jury recommended sentences above the minimum, also indicating that the verdict was not coerced. Point denied.[89]

         (Footnote added.)

         The Court denied Petitioner's second point, challenging the trial court's denial of Petitioner's motion for new trial and request for a hearing on Petitioner's allegations of juror misconduct, on its merits.[90] After discussing Missouri case law setting forth the principle “a juror cannot impeach his own verdict or the verdict of a jury of which he was a member, ” the Court concluded, “[t]he jurors' statements, upon which [Petitioner] relies, related to the decision-making processes that transpired during jury deliberations and therefore cannot be used by [Petitioner] to impeach the verdict. Point denied.”[91]

         With regard to Petitioner's third point, asserting the trial court erred by failing to strike the prosecutor's closing argument that the jury's sentencing assessment was “simply a recommendation, ” the Court concluded it did not need to address the point because Petitioner “expressly abandoned it.”[92] In denying Petitioner's fourth point challenging the incest offense verdict-director, the Court stated Petitioner “concede[d] that there was no objection to [the incest verdict-directing instruction], and thus the point is not preserved for appeal.”[93] Reviewing the alleged instructional error for plain error, the Court found the “disjunctive verdict director[] did not result in manifest injustice” for two reasons.[94] First, the Court concluded “the record shows that there was overwhelming evidence of [Petitioner]'s guilt.”[95] Additionally, the Court found “the jury was instructed that any verdict needed to be unanimous” and “[a]ll given instructions must be considered together.”[96] The Court issued its mandate on April 20, 2011.[97]

         Post-Conviction Motion Proceeding

         Following his direct appeal, Petitioner timely filed a pro se motion for post-conviction relief (“PCR motion”) presenting five claims of trial court error.[98] Through appointed counsel, Petitioner filed an amended PCR motion, including a request for an evidentiary hearing.[99] In his amended PCR motion, Petitioner set forth three claims his trial attorney provided ineffective assistance of counsel in violation of Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments.[100] Specifically, in his first claim, Petitioner urged his trial attorney provided ineffective assistance of counsel by “failing to interview, properly investigate, subpoena and call as material witnesses, [Victim's two younger siblings], whose testimony was necessary to provide [Petitioner] with a viable defense.”[101] With regard to his second claim, Petitioner asserted his trial attorney provided ineffective assistance of counsel by “failing to introduce evidence that [Victim] made similar false accusations against [Petitioner's brother, Mr.] Henke.”[102] For his third claim, Petitioner contended his trial attorney provided ineffective assistance of counsel by “failing to introduce evidence that DNA testing was performed on items, specifically a rag, retrieved from [Victim], and the tests showed no DNA from [Petitioner].”[103]

         The motion court denied Petitioner's request for an evidentiary hearing and concluded Petitioner was not entitled to post-conviction relief.[104] Petitioner timely appealed the motion court's judgment, specifically challenging the motion court's disposition of the first two claims of ineffective assistance of counsel in his amended post-conviction motion.[105]

         Post-Conviction Appeal

         In the first point of his post-conviction appeal, Petitioner alleged the denial of post-conviction relief without a hearing violated his rights to the effective assistance of counsel, a fair trial, and due process under the Fifth, Sixth, and Fourteenth Amendments in that his trial attorney failed to investigate and call Victim's two younger siblings as witnesses.[106] Petitioner asserted Victim's siblings “would have testified that [Victim] told each [of them] to lie and to corroborate her accusations about [Petitioner] to police detectives.”[107] With regard to his second point, Petitioner argued the denial of post-conviction relief without a hearing violated his rights to the effective assistance of counsel, a fair trial, the presentation of a defense and due process under the Fifth, Sixth, and Fourteenth Amendments in that his trial attorney failed to “introduce false allegation evidence” by failing to call “the Division of Family Services [DFS] caseworker who had investigated allegations made by [Victim] against [Petitioner's brother] and who determined those allegations to be unfounded, and [Petitioner's brother] who would have denied [Victim]'s allegations.”[108]

         The Missouri Court of Appeals affirmed the motion court's judgment in a summary order accompanied by a more detailed memorandum.[109] After summarizing Petitioner's post-conviction motion proceedings and discussing the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), to establish an ineffective assistance of counsel claim, the Court denied each of Petitioner's points on appeal.[110]

         With regard to Petitioner's contention that his trial attorney provided ineffective assistance in failing to investigate Victim's two younger siblings and call them as witnesses at trial, the Court found

To warrant relief [o]n his claim that counsel was ineffective for failing to call a witness, a [post-conviction] movant must show: (1) the trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness's testimony would have provided a viable defense. Phillips v. State, 214 S.W.3d 361, 366 (Mo. [Ct.] App. . . . 2007). Trial counsel's decision to not call a witness is presumed to be trial strategy and will not support a movant's claim unless he can clearly establish otherwise. Id. The witness's testimony must unqualifiedly support the movant or the failure to call the witness does not constitute ineffective assistance of counsel. Id. Further, where a movant's motion for post-conviction relief avers his lawyer rendered ineffective assistance of counsel for failing to present a witness at trial, the motion must state the facts to which the unproduced witness would have testified; if the [m]ovant fails to do so, the [m]ovant is not entitled to an evidentiary hearing. State v. Jennings, 815 S.W.2d 434, 449 (Mo. [Ct.] App. . . . 1991)[.]
[Petitioner] contends [Victim] had her [younger] brother and sister lie to the police about what happened and to corroborate her story. Thus, he argues his trial counsel was ineffective for failing to elicit such evidence from them.
However, [Petitioner] testified at sentencing there were no witnesses that he wanted trial counsel to call to testify at trial that she did not contact or call. [Petitioner] also stated there was not anything he asked trial counsel to do that she refused to do, and there was nothing he requested that she not do that she did anyway. [Petitioner] also indicated he was satisfied with his trial counsel's services. Further, the motion court noted the list of witnesses [Petitioner] gave to his trial counsel before trial did not include [Victim's younger] brother and sister . . . . . This list does not appear in the record. Thus, [Petitioner] has failed to show his trial counsel knew or should have known of these witnesses. Lastly, [Petitioner] has failed to state the facts to which these unproduced witnesses would have testified.
Therefore, we find the motion court did not clearly err in denying [Petitioner's] 29.15 motion for post-conviction relief because his trial counsel was not ineffective for failing to investigate and call the [younger] brother and sister of [Victim]. Point denied.[111]

         (Footnote added.)

         In his second point, Petitioner argued his trial attorney provided ineffective assistance of counsel by failing to present as witnesses his brother, Mr. Henke, “who would have denied [Victim's] allegations” against him and “the [DFS] caseworker who had investigated allegations made by [V]ictim against [Petitioner's brother].”[112] With regard to this point, the Missouri Court of Appeals found:

In fact, [Petitioner's brother] was called as a witness. Further, [Petitioner] did not allege his trial counsel failed to call [his brother] as a witness in his original motion. Thus, this aspect of [Petitioner]'s claim cannot be raised on appeal. Rule 29.15(d); Cloyd v. State, 302 S.W.3 804, 807 (Mo. [Ct.] App. . . . 2010).
[Petitioner]'s amended motion asserted that [Petitioner] became aware prior to trial that [Victim] had made false accusations against [Petitioner's brother] and that DFS found the allegations to be unsubstantiated, but [Petitioner] did not assert that he made this information available to trial counsel before trial. Trial counsel cannot be deemed ineffective for failing to act on information of which she was not made aware.
Further, [Petitioner]'s trial counsel's decision not to call someone from DFS was reasonable strategy because there was no showing that [Victim]'s allegation[s] against [Petitioner's brother] were unsubstantiated and there was evidence indicating the allegations were valid in that [Victim] was removed from [Petitioner's brother]'s home.
Lastly, as noted above, [Petitioner] testified there were no witnesses that he wanted trial counsel to call to testify at trial that she did not contact or call. Further, he testified there was not anything that he asked trial counsel to do that she refused to do, and there was nothing that he requested that she not do that she did anyway. [Petitioner] also indicated that he was satisfied with trial counsel's services.[113]

         (Footnote added.) The Court issued its mandate on February 26, 2013.[114]

         II. Petitioner's Grounds for Federal Habeas Relief

         In his timely federal habeas petition, Petitioner seeks relief on the following six grounds:

1. The trial court violated Petitioner's rights to due process and a fair trial under the Sixth and Fourteenth Amendments by reversing the grant of a mistrial and coercing a verdict on Counts I and II;
2. The trial court violated Petitioner's rights to due process and a fair trial under the Sixth and Fourteenth Amendments because the jury did not deliberate in accordance with the trial court's instructions;
3. The trial court violated Petitioner's rights to due process and a fair trial under the Sixth and Fourteenth Amendments when the prosecutor repeatedly told the jury its sentencing decision was “simply a recommendation, ” which “encourage[ed] the jury to return longer sentences”;
4. The trial court violated Petitioner's rights to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments when the incest verdict director “allowed the possibility that the jury failed to unanimously find the same act of deviate sexual intercourse as the predicate crime”
; 5. The trial attorney provided ineffective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments because Petitioner's trial attorney “failed to investigate and call as witnesses [Victim]'s [younger] brother and sister who would have testified that [Victim] asked them to lie to corroborate her accusations against Petitioner”; and
6. The trial attorney provided ineffective assistance of counsel under the Fifth, Sixth, and Fourteenth Amendments because Petitioner's trial attorney “failed to introduce evidence that [Victim] had made prior false allegations similar to those against Petitioner, and thus impeach[] the credibility of [Victim].”[115]

         Respondents counter that this Court is barred from considering the merits of the grounds either reviewed by the Missouri Court of Appeals under a plain error standard of review or abandoned by Petitioner.[116] To the extent the Court may reach the merits of Petitioner's grounds, Respondents argue the grounds lack merit because the state court decisions addressing the issues are neither incorrect nor unreasonable applications of clearly established federal law and are not based on unreasonable determinations of the facts in light of the evidence presented in the state court proceedings.[117]

         III. Discussion of Grounds for Habeas Relief

         (A) Trial court errors - Grounds one through four

         Respondents argue the Court cannot consider the merits of certain grounds for relief because Petitioner defaulted them by either failing properly to object during trial or abandoning the issue on appeal. While Petitioner acknowledges the Missouri Court of Appeals provided only plain error review of ground four due to his conceded failure to object during trial to the incest offense verdict director, Petitioner contends plain error review by the Missouri Court of Appeals allows a federal habeas court to consider the merits of the ground for relief subject to such review. Respondents contend the Court may reach the merits of the alleged trial court error in ground two and should deny that ground for relief because the Missouri Court of Appeals' decision on direct appeal is consistent with and not an incorrect or unreasonable application of Tanner v. United States, 483 U.S. 107 (1987). Petitioner counters the Missouri Court of Appeals' decision regarding the alleged trial court error in ground two was contrary to and an unreasonable application of Tanner.

         1. Procedural default - Grounds one, three, and four

         (a.) Failure to Exhaust

         Before seeking federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, a habeas petitioner “must exhaust available state remedies by fairly presenting [any federal] claim in each appropriate state court.” Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015) (internal quotation marks omitted) (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)), cert. denied, 136 S.Ct. 1825 (2016). To satisfy the exhaustion requirement a state prisoner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011) (internal quotation marks omitted) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Claims that have not been exhausted and fairly presented to the state courts are procedurally defaulted. Wemark v. Iowa, 322 F.3d 1018, 1022 (8th Cir. 2003) (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)).

         To exhaust a federal constitutional claim, a petitioner must present the claim to the state courts “in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (internal quotation marks omitted) (quoting Beaulieu v. Minnesota, 583 F.3d 570, 573 (8th Cir. 2009)). In Missouri state court proceedings, a litigant must raise constitutional claims at the earliest opportunity and preserve them throughout the proceedings. State v. Liberty, 370 S.W.3d 537, 546 (Mo. 2012) (en banc) (citing State v. Wickizer, 583 S.W.2d 519, 523 (Mo. 1979) (en banc)). Alleged trial court errors must be raised on direct appeal in Missouri. See, e.g., Middleton v. State, 103 S.W.3d 726, 740 (Mo. 2003) (en banc) (alleged trial court error in admitting a letter “constitutes a claim of trial error in the admission of [a] document [that] must be raised on direct appeal and [is] not cognizable in a post-conviction motion”).

         With regard to the first ground for relief, alleging the trial court violated Petitioner's rights to due process and a fair trial by coercing verdicts on Counts I and II, the Missouri Court of Appeals set forth state case law for the propositions that, to preserve an issue for appeal, a litigant must assert a timely and specific objection during trial; a litigant waives grounds not raised by timely, specific objection during trial; and changing the grounds for an objection on appeal is prohibited.[118] The Court of Appeals then concluded Petitioner had not preserved any of the bases for his contention the trial court coerced verdicts on Counts I and II.[119]

         Neither party challenges, for purposes of this federal habeas action, the propriety of the Court of Appeals' conclusion that plain error review applied to that point on appeal. Importantly, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, “[d]eterminations of state law by the Missouri Court of Appeals are binding” on a federal habeas court. Crump v. Caspari, 116 F.3d 326, 327 (8th Cir. 1997). Therefore, the Court need not address whether the state appellate court properly determined the adequacy of Petitioner's objections during trial or the effect of that determination on the appellate court's consideration of Petitioner's point on appeal. The Missouri Court of Appeals' decision on direct appeal demonstrates that ground one is procedurally defaulted due to Petitioner's failure properly to present timely and specific objections during trial that were pursued on direct appeal.

         For the third ground for relief challenging as violating Petitioner's rights to due process and a fair trial the trial court's failure sua sponte to respond to the prosecutor's closing argument referring to the jury's assessment of a sentence as “simply a recommendation, ” the Missouri Court of Appeals concluded it “need not address” the issue because Petitioner “expressly abandoned the point.”[120] Therefore, ground three is procedurally defaulted because Petitioner's abandonment of the point on direct appeal did not give the Missouri Court of Appeals “a full opportunity” to resolve the constitutional issues presented in that ground. See O'Sullivan, 526 U.S. at 845 (“state prisoners must give the state court one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”).

         For the due process and fair trial challenge to the incest verdict-director Petitioner pursues in ground four, the Missouri Court of Appeals stated a specific objection during trial was needed to preserve alleged instructional error for appellate review and, as Petitioner conceded, Petitioner had not objected to the verdict-directing instruction for the incest offense during trial.[121] As with ground one, the Court is bound by the Court of Appeals' conclusion Petitioner procedurally defaulted ground four by failing to present the trial court with specific, timely objections to the incest verdict-director during trial.

         (b.) Avoiding procedural default - Establishing cause and prejudice or a miscarriage of justice

         A federal habeas court may not reach the merits of a federal constitutional claim procedurally defaulted due to a petitioner's failure to follow applicable state rules in raising the claim in state court, unless a petitioner demonstrates either cause and prejudice or a miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992); accord Skillicorn v. Luebbers, 475 F.3d 965, 976-77 (8th Cir. 2007) (“Unless a habeas petitioner shows cause and prejudice or that he is actually innocent of the charges, a [federal habeas] court may not reach the merits of procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claim”). “Cause for a procedural default exists where ‘something external to the petitioner, something that cannot fairly be attributed to him[, ] . . . ‘impeded [his] efforts to comply with the State's procedural rule.'” Maples v. Thomas, 565 U.S. 266, 281 (2012) (alterations and emphasis in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Notably, “the precise contours of the cause requirement have not been clearly defined.” Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir. 1999). If a petitioner does not establish cause for the procedural default, a habeas court need not determine whether he demonstrated actual prejudice. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007).

         To invoke the alternative miscarriage of justice exception to the procedural default rule, a petitioner must present new evidence affirmatively demonstrating that he is innocent of the crime for which he was convicted. Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). “‘Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.'” Cagle, 474 F.3d at 1099 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).

         Noting the Eighth Circuit has recognized an intra-circuit split of authority about whether a state appellate court's plain error review bars a federal habeas court from addressing the merits of a ground for habeas relief or permits a federal habeas court to consider the merits of the ground for manifest injustice as a matter of plain error, Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir. 1997), Respondents urge the Court not to address the merits of the grounds reviewed only for plain error, citing Hayes v. Lockhart, 766 F.2d 1247, 1252-53 (8th Cir. 1985). Petitioner contends the Court must consider the merits of a ground for relief subjected to plain error review by a state court of appeals.

         The grounds reviewed by the Missouri Court of Appeals only for plain error are ground one, in which Petitioner argues the trial court violated his rights to due process and a fair trial by coercing a verdict, and ground four in which Petitioner asserts the trial court violated his rights to due process and a fair trial by allowing the jury to reach a guilty verdict without unanimous agreement on the predicate conduct needed for an incest conviction. The Eighth Circuit recently held that Hayes, supra, governs the issue whether a federal habeas court may consider the merits of a ground reviewed by a state court of appeals only for plain error. Clark v. Bertsch, 780 F.3d 873 (8th Cir. 2015). More specifically, the Eighth Circuit concluded: “Hayes holds a federal habeas court cannot reach an otherwise unpreserved and procedurally defaulted claim merely because a reviewing state court analyzed that claim for plain error.” Clark, 780 F.3d at 874. Therefore, the Court of Appeals' plain error review of the issues Petitioner pursues in grounds one and four does not allow this Court to address the merits of those grounds for relief absent a showing of cause and prejudice or a miscarriage of justice.

         Petitioner has not presented the Court with any external impediment that arguably caused him either to abandon on direct appeal his challenge to the trial court's response to the prosecutor's closing argument (ground three) or to fail to pursue proper objections during trial to the trial court's handling of the jury deliberations regarding Counts I and II (ground one) and the trial court's verdict-directing instruction for the incest offense in Count VI (ground four). Because Petitioner has not established the requisite cause, the Court need not consider whether Petitioner has demonstrated the prejudice required to overcome the procedural default of grounds one, three, and four. Cagle, 474 F.3d at 1099. Additionally, Petitioner has not either submitted any new evidence of his actual innocence or alleged such evidence exists. Therefore, neither cause and prejudice nor a miscarriage of justice exists to avoid the procedural default of Petitioner's claims of trial court error in grounds one, three, and four. The Court denies grounds one, three, and four, without addressing their merits, as procedurally barred.

         2. Merits - Ground two

         In ground two, Petitioner alleges the trial court violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments because the jury did not deliberate in accordance with the trial court's instructions. Respondents counter that the Missouri Court of Appeals' decision on this juror misconduct issue in Petitioner's direct appeal is not ...


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