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Davies v. Pash

United States District Court, W.D. Missouri, St. Joseph Division

June 19, 2017

JEFFREY DAVIES, 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 Jeffrey Davies'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:[1]

In 2005, the Buchanan County sheriff's department instituted a sting operation whereby the police department with the help of college interns would attempt to catch individuals who would meet underage children on the internet and attempt to meet them in person for sexual purposes. The department used the college interns as decoys who would converse with the would-be perpetrators online until a meeting was arranged.
In June 2006, intern Rachel Schellenberger created a fictitious profile on Yahoo called ilovecandy92 under the name of “Jaime Jacobs” (“Jaime”). On June 6, 2006, Davies, a twenty-eight year old man, logged in as civil200077 and began chatting with “Jaime” in a chat room named “Toy Box.”[2] Davies and “Jaime” chatted on a total of four occasions: June 6, 7, 8, and 12. “Jaime's” fictitious profile had her living in St. Joseph, Missouri, and “Jaime” first communicated to Davies that she was fourteen years of age and then subsequently in the same conversation changed her age to thirteen years old.
During the first chat between Davies and “Jaime” on June 6, 2006, Davies told “Jaime” she was too young for him, but he then began discussing sexually explicit topics with her such as: whether she was bisexual, her sexual history, masturbation, oral sex, pubic hair, avoiding pregnancy, anal sex, and the type of panties she wears. Davies also told “Jaime” the conversation was making him “horny, ” and he asked multiple times on what street she resided.
The second conversation was on June 7, 2006. Davies contacted “Jaime” and offered that if he were in St. Joseph they could hang out, and he asked her whether she would date him if he were younger. Davies asked “Jaime” what she was wearing and whether she was wearing panties and a bra. Davies then inquired as to whether “Jaime” shaves her legs and pubic hair. Finally, Davies told “Jaime, ” “if you want to learn, we still might be able to mess around sometime.”
The third conversation was on June 8, 2006. In that conversation, Davies asked whether he could come over and meet “Jaime” at some time. He attempted to get “Jaime” to tell him her address but she refused. Davies insisted that “Jaime” had nothing to worry about; no one would see him; and if someone came home, he would run out the back door. Davies then attempted to get “Jaime's” telephone number. “Jaime” suggested the two could meet somewhere close to her home, but they did not plan a meeting that day. Instead, they made plans to chat again later.
The fourth conversation was on June 12, 2006. In that conversation, Davies asked why “Jaime” did not have a boyfriend and how many boys she had kissed. He again attempted to get “Jaime's” photo, address, and phone number. Davies then asked “Jaime” whether she wanted to meet up that night when he returned from Kansas City.
At this point in the conversation, Davies logged out of the screen name he had been using during the previous conversations and logged back in as saintjoeguy64506.[3] Davies, as saintjoeguy64506 contacted “Jaime, ” telling her he was a seventeen year-old male from St. Joseph, Missouri. “Jaime” informed Davies that she was thirteen years old. Davies asked “Jaime” what she looked like and suggested that they meet up sometime. Davies asked where “Jaime” lived and inquired into her sexual history. They discussed “Jaime's” relationship with Davies's other online person, civil200077, and he asked her whether she would have sex with civil200077. He discussed safe sex and condoms with “Jaime, ” pubic hair, and offered to teach her how to have sex. He told her in graphic terms that he would teach her how to perform oral sex on a man and offered to perform oral sex on her. Also, he told her about anal sex and propositioned her. Davies then arranged to meet with “Jaime” that evening at 6:00 in the Meierhoffer Cemetery. He told her they could “do some sexual stuff in [his] car.” Davies told her it would be easier if she wore a skirt. He told her they would have oral sex, fingering, kissing, and could try anal sex if she wanted. Then he suggested they could have sex without a condom but then decided that since she was in a fertile state they should use a condom. He told her he really likes thongs and offered to bring her one. This concluded Davies's conversation with “Jaime” as seventeen year-old saintjoeguy64506.
Davies then logged back into the chat as civil200077 and contacted “Jaime” again. He asked “Jaime” what she had been doing, and “Jaime” informed him that she had been chatting with a new guy on the internet and that she would not be able to meet up with Davies (as civil200077) that evening. Davies inquired as to what “Jaime” would be wearing that evening and offered her advice. He tried to get “Jaime” to tell him exactly what she would be doing when she met up with her other on-line friend, asking her in graphic terms if she was going to perform oral sex on him, whether she would French kiss him and let him perform oral sex on her. This concluded the interactions between Davies and “Jaime” on the internet.
Trooper Brad Ussary and his partner Corporal Roger Phillips set up surveillance at Meierhoffer Cemetery that evening. The surveillance team observed a car matching the description given by Davies to “Jaime” drive slowly past the area where he had agreed to meet “Jaime.” The investigators stopped Davies's car and inquired as to what Davies was doing in the cemetery. Davies said he was looking to see whether the tombstones were flat or upright. Davies was then given his Miranda warnings. Investigators again asked Davies what he was doing, and he replied he wanted to “see what residence the little girl came out of so that he could tell her parents what she was doing.” Davies signed a consent form which authorized a search of Davies's vehicle. Davies then accompanied investigators to the police station.
At the police station, Davies waived his Miranda rights in writing. He was shown the printouts from each of the chats he had with “Jaime, ” and Davies initialed each chat transcript, signaling that “he agreed with what was on it as far as his recollection of what was said.” He admitted to participating in the chats and broke down in tears saying he would cooperate fully. Davies then made a handwritten statement in the form of an apology letter, as this is what was requested by the officer. In this statement, Davies admitted that he changed profiles from civil200077 to stjoeguy64506 [sic] because he hoped she would meet someone who was 17 years old as opposed to 28 years old under his previous profile.
Davies telephoned his wife while at the police station and informed her that he had been arrested for soliciting a minor on the internet. She hung up on him, and he called her back a few hours later. She asked how old the minor was and he told her she was thirteen. The following day, after Davies was released, he and his wife had another conversation about the incident where Davies repeated that the minor was thirteen years old.[4] Over the objections of Davies, his wife testified at trial about each of the conversations she had with Davies. Davies's invocation of spousal privilege was rejected by the court. Specifically, his wife testified that Davies never denied committing the crime and he did not tell her that he believed “Jaime” to be over the age of eighteen. Davies testified at trial and admitted he had conversations with “Jaime” but insisted he never believed “Jaime” was a minor but, rather, believed that they were “role playing” in their internet conversation.
The jury found Davies guilty of one count of child enticement and two counts of attempted first-degree statutory sodomy. The court sentenced Davies to fifteen years in prison; five years for child enticement to run consecutively to the concurrent ten year sentences for each count of attempted statutory sodomy.

Doc. #10-8, at 2-7; State v. Davies, 330 S.W.3d 775, 781-84 (Mo.Ct.App. 2010). Petitioner appealed his conviction to the Missouri Court of Appeals.[5] The Missouri Court of Appeals amended Davies's conviction for enticement of a child to attempted enticement of a child, but affirmed the judgment and sentence in all other respects. Doc. #10-8, at 1, 7-34; Davies, 330 S.W.3d 775. Petitioner's application for transfer to the Missouri Supreme Court was denied. State v. Davies, No. SC91508 (Mo. Mar. 1, 2011).

         Petitioner also sought post-conviction relief under Missouri Supreme Court Rule 29.15. Doc. #10-12, at 6-11. Appointed counsel filed an amended motion alleging trial counsel was ineffective (1) for failing to properly object to and properly preserve for appeal the rebuttal testimony of Petitioner's ex-wife and Ryan Boggs; (2) for failing to file a motion for acquittal as to Count I because the State did not prove the necessary underage element; (3) for failing to advise Petitioner to accept the State's plea bargain offer of probation and explore the option of accepting the offer; and (4) at the sentencing stage of the trial. Doc. #10-12, at 18-38; see also Doc. #1, at 11. A hearing was held. Doc. #10-11. Thereafter, Petitioner's motion was denied. Doc. #10-12, at 64-70. Petitioner appealed the court's decision to the Missouri Court of Appeals, which affirmed the decision. Doc. #10-16; State v. Davies, 410 S.W.3d 709 (Mo.Ct.App. 2013).

         In his Petition (Doc. #1) filed with this Court, Petitioner articulates seventeen grounds for relief:

         (1) Petitioner was denied his rights to due process of law and proof beyond a reasonable doubt under the Fourteenth Amendment when the trial court overruled his motion for judgment of acquittal as to Count I because there was no underage victim, and the Missouri Court of Appeals unreasonably applied the law when it amended his conviction for enticement of a child to attempted enticement of a child.

         (2) Petitioner was denied his rights to due process of law, fair trial, and proof beyond a reasonable doubt under the Fourteenth Amendment when the trial court submitted Jury Instruction No. 9 as to Count I.

         (3) Petitioner was denied his rights to due process of law, fair trial, fair notice of the charges against him, not to be convicted for crime with which he was not charged, and proof beyond a reasonable doubt under the Fifth, Sixth, and Fourteenth Amendments when the trial court overruled his motion for judgment of acquittal as to Count I because the Fourth Amended Information omitted the person enticed was underage.

         (4) Petitioner was denied his rights to due process of law, fair trial, and proof beyond a reasonable doubt under the Fourteenth Amendment when the trial court overruled his motion for judgment of acquittal as to Counts II and III.

         (5) Petitioner was denied his rights to due process and a full and fair opportunity to mount an effective defense under the Fourteenth Amendment when the trial court allowed the State to file a Fourth Amended Information during rebuttal.

         (6) Petitioner was denied the right to a fair trial under the Fourteenth Amendment when the trial court allowed his ex-wife to testify about marital communications.

         (7) Petitioner was denied the right to a fair trial under the Fourteenth Amendment when the trial court allowed his ex-wife to testify he never denied the crime to her.

         (8) Petitioner was denied the right to effective assistance of counsel under the Fourteenth Amendment when trial counsel failed to properly object to and preserve as an issue for appeal the rebuttal testimonies of Petitioner's ex-wife and Ryan Boggs.

         (9) Petitioner was denied the right to effective assistance of counsel under the Fourteenth Amendment when trial counsel failed to argue before the jury and the trial court at the close of evidence that Petitioner must be acquitted of Count I because the State failed to prove the existence of an underage victim.

         (10) Petitioner was denied the right to effective assistance of counsel under the Fourteenth Amendment at the punishment phase of the trial when trial counsel failed to have a coherent strategy to convince both the jury and the trial court to sentence Petitioner to the minimum punishment for each offense and to run each sentence concurrent.

         (11) Petitioner was denied the right to effective assistance of counsel under the Sixth and Fourteenth Amendments when trial counsel failed to hire a computer forensic expert to examine Petitioner's computers and the State's digital discovery.

         (12) Petitioner was denied the right to effective assistance of counsel under the Sixth and Fourteenth Amendments when trial counsel failed to obtain from the State the archived digital files of the chats from Yahoo! Messenger.

         (13) Petitioner was denied the right to effective assistance of counsel under the Sixth and Fourteenth Amendments when trial counsel failed to move to exclude the text version of the chat conversations because they were not the best evidence, were incomplete, and did not accurately portray the chat conversations.

         (14) Petitioner was denied the right to effective assistance of counsel under the Sixth and Fourteenth Amendments when trial counsel advised Petitioner he had a defense to the charge of enticement of a child because no underage victim existed, and as a result of this advice, Petitioner declined the State's offer of probation in exchange for a guilty plea.

         (15) Petitioner was denied the right to be free from being subjected to successive prosecution and punishment under the double jeopardy clause of the Fifth Amendment when the Missouri Court of Appeals vacated his conviction for enticement of a child and entered a conviction for a lesser included offense not instructed upon at trial.

         (16) Petitioner was denied his right to effective assistance of counsel under the Sixth and Fourteenth Amendments when trial counsel, during cross-examination of a witness, opened the door for the admittance of evidence of prior misconduct.

         (17) Petitioner was denied his right to due process of the law under the Fifth and Fourteenth Amendments when the Missouri Court of Appeals vacated his conviction for enticement of a child and entered a conviction for a lesser included offense, but did not remand the case for resentencing.

         II. STANDARD

         Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 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 Supreme Court of the United States; 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). The “contrary to” and “unreasonable application” provisions in the first subsection have independent meaning. The “contrary to” provision applies “if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or reached a decision contrary to Supreme Court precedent when confronting facts that were materially indistinguishable.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). The “unreasonable application” clause applies “if the state court correctly identified the governing legal principle, but unreasonably applied it to the facts of the particular case.” Id.

         Section 2254(d) “limits the applicability of the AEDPA's deferential standard to claims that have been ‘adjudicated on the merits' in state court.” Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011) (citation omitted). Federal courts are “directed to undertake only a limited and deferential review of underlying state court decisions.” Id. (quoting Collier v. Norris, 485 F.3d 415, 421 (8th Cir. 2007)). “A federal court may not issue the writ simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. (internal quotations and citations omitted).

         III. DISCUSSION

         A. Exhaustion

         Respondent contends Petitioner's claims in Grounds Eleven, Twelve, Thirteen, Sixteen, and Seventeen must be dismissed because Petitioner failed to properly exhaust his state remedies with regard to those claims. Before presenting a federal habeas claim, a petitioner must properly exhaust his state remedies. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999). “[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” Id. Petitioner contends his post-conviction counsel was ineffective for failing to raise and develop Grounds Eleven, Twelve, Thirteen, and Sixteen, and he has established cause for the procedural default of these claims. Doc. #21, at 36-46, 49-50. Petitioner set forth no argument as to why Ground Seventeen has not been defaulted. Id., at 50-51.

         Typically, the Court addresses procedural issues, such as a statute of limitations or procedural bar, before proceeding to the merits of a claim. However, where these issues are complicated, judicial economy can dictate reaching the merits of a federal habeas claim if the merits are easily resolvable against a petitioner. Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (proceeding to the merits where the procedural default issue is difficult to resolve); Chambers v. Bowersox, 157 F.3d 560, 564 n.4 (8th Cir. 1998) (“[t]he simplest way to decide a case is often the best.”).

         At a minimum, Petitioner's claim under Ground Seventeen is likely procedurally barred, and Petitioner's claims under Grounds Eleven, Twelve, Thirteen, and Sixteen may also be procedurally barred. However, the Court will proceed to the merits of Petitioner's claims rather than tackle more difficult procedural questions raised in the parties' briefs. See Trussell v. Bowersox, 447 F.3d 588, 590-91 (8th Cir. 2006) (proceeding to ...


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