United States District Court, E.D. Missouri, Eastern Division
RAHMAN A. WHITAKER, Petitioner,
IAN WALLACE, Respondent.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
filed a pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 [Doc. 1] on November 27, 2013. On May 12,
2013 Respondent filed his Response to the Court’s Order
to Show Cause Why Relief Should Not be Granted [Doc. 29].
Pursuant to Rule 8 of the Rules Governing Section 2254 Cases
in the United States District Courts, this Court has
determined that there are no issues asserted that give rise
to an evidentiary hearing and therefore one is not warranted,
as will be discussed in further detail. Petitioner’s
Motion for Evidentiary Hearing, [Doc. 34], is therefore
denied. For the reasons explained below, the Response to the
Order to Show Cause Why Relief Should not be Granted is well
taken and the petition will be denied.
Petitioner was charged in the Circuit Court of St. Louis
County with burglary in the first degree, domestic assault in
the second degree, forcible sodomy and armed criminal action.
He was found not guilty of Burglary in the first degree. On
March 28, 2012, he was convicted by a jury of domestic
assault in the second degree, forcible sodomy, and armed
criminal action. The Twenty-First Circuit Court trial court,
on May 25, 2012, sentenced Petitioner to one year on the
domestic assault in the second degree charge, twenty-five
years on the forcible sodomy charge, and twenty-five years on
the armed criminal action charge. The twenty-five year
sentences were ordered to run concurrently with each other,
but consecutively with the one year sentence. The aggregate
sentence was twenty-six years in the Missouri Department of
appeal the Petitioner alleged that the trial court: 1) erred
by allowing the State to introduce evidence of a prior
assault on A.V., 2) plainly erred by allowing Detective Chris
Pollman to comment that he believed Whitaker was lying and
that Whitaker had the necessary intent for burglary; and 3)
erred in not allowing Whitaker to play two excerpts from the
interview of A.V. to show that A.V. and Detective Carrie
Brandt were lying about her demeanor during her interview and
to show her actual demeanor. The Missouri Court of Appeals,
Eastern District of Missouri, affirmed his convictions
finding he failed to preserve either of the first two claims
of error for appeal, thereby limiting the appellate court to
plain error review. The Petitioner is currently within the
custody of the Missouri Department of Corrections under the
previously referenced sentences.
filed his motion for post-conviction relief, pursuant to Rule
29.15. This filing, however, was after the deadline for the
filing of such a motion. He did not appeal from the motion
court’s determination that he missed the deadline.
filed this Petition for Writ of Habeas Corpus against
Respondent on August 15, 2014. Petitioner alleges four claims
which are the following: 1) the admission of evidence of his
prior assaults on the victim was error; 2) admission of
testimony by Detective Chris Pollman on Petitioner’s
credibility and the intent need for burglary was error; 3)
the trial court erred in not allowing him to play two
excerpts from the video tape of the interview of the victim;
4) the investigating police officers and the victim perjured
themselves through their trial testimony.
prisoner must fairly present his or her claims to state
courts during direct appeal or in post-conviction
proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th
Cir.1997). Where a prisoner fails to present his claims
through independent and adequate state procedures he, or she,
has procedurally defaulted those claims. Federal habeas
review of those claims is barred. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). Petitioner did not
raise Grounds 1, 2, or 3 in his direct appeal or appeal from
the denial of post-conviction relief. These are, without
question, procedurally defaulted.
are instances where a petitioner may overcome the procedural
bar. These are where he may demonstrate legally sufficient
cause for the default and actual prejudice resulting from it,
or that the petitioner is probably actually innocent.
Coleman, 501 U.S. at 750. A petitioner must show
that an “external” impediment prevented him from
presenting his claim to the state court in a procedurally
proper manner in order to satisfy the “cause”
requirement. Id. at 753. Petitioner here asserts
that ineffective assistance of trial counsel is cause for his
failure to exhaust his claims in state court. Ineffective
assistance of trial counsel does not explain, or serve to
legally excuse in any fashion, why he failed to raise his
claims on his direct appeal or post-conviction proceedings.
He is still in procedural default.
Antiterrorism 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
the statute’s effective date of April 24, 1996. When
reviewing a claim that has been decided on the merits by a
state court, AEDPA limits the scope of judicial review in a
habeas proceeding as follows:
An application for writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal
law, as determined by the ...