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Whitaker v. Wallace

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

July 26, 2017

RAHMAN A. WHITAKER, Petitioner,
v.
IAN WALLACE, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         Procedural Background

          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 Corrections.

         In his 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.

         Petitioner 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.

         Petitioner 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.

         Procedural Default

         A state 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.

         There 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.

         Standard of Review

         The 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 ...

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