Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McIntosh v. Cassady

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

August 15, 2017

JAY CASSADY, Respondent.



         This matter is before the Court on the Petition of Rodney McIntosh for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b).

         I. Procedural History

         McIntosh is incarcerated at the Jefferson City Correctional Center in Jefferson City, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of St. Louis City, Missouri. (Respt's Ex. D at 61-63.)

         On June 14, 2006, a jury found McIntosh guilty of first degree statutory sodomy. Id. at 23. The court sentenced McIntosh to twenty-five years imprisonment. Id. at 64.

         In his direct appeal of his conviction, McIntosh first argued that the trial court erred in overruling his motion for judgment of acquittal, because the state failed to prove beyond a reasonable doubt that he committed first degree statutory sodomy. (Respt's Ex. F at 9.) McIntosh next argued that the trial court erred in denying his motion to strike a venireperson for cause due to bias. Id. at 10. On June 19, 2007, the Missouri Court of Appeals affirmed the judgment of the trial court. (Respt's Ex. H.)

         McIntosh filed a pro se motion for post-conviction relief under Rule 29.15. (Respt's I at 3-15.) After appointment of counsel, an amended post-conviction relief motion and request for evidentiary hearing was filed. Id. at 17-38. The amended motion raised the following claims: (1) trial counsel was ineffective in failing to present the testimony of Angelo Veal; (2) trial counsel was ineffective in failing to object to the State's questions of the venire panel that sought commitments from potential jurors; (3) trial counsel was ineffective in failing to present evidence of a prior allegation of sexual abuse made by the victim; and (4) he was denied his right to Due Process when the State engaged in misconduct by arguing matters the trial court had excluded at the State's request. Id. The motion court denied McIntosh's motion for post-conviction relief and his request for an evidentiary hearing on February 5, 2012. Id. at 39-45.

         In his appeal from the denial of post-conviction relief, McIntosh raised the same four claims he alleged in his post-conviction motion. (Respt's Ex. J.) The Missouri Court of Appeals affirmed the decision of the motion court. (Respt's Ex. L.)

         The Supreme Court of Missouri granted McIntosh's application for transfer. (Respt's Ex. M.) On November 26, 2013, after supplemental briefing by the parties, the Missouri Supreme Court affirmed the judgment of the motion court. (Respt's Ex. Q.)

         McIntosh raises the following grounds for relief in the instant Petition: (1) trial counsel was ineffective in failing to call Angelo Veal, Rodriguez Hernandez, and Dennis Gordan as defense witnesses at trial; (2) trial counsel was ineffective in failing to object to the State's questioning of the venire panel which sought commitments from the panel; and in failing to strike venireperson 745 due to bias; (3) trial counsel was ineffective in failing to investigate and present evidence of the victim's previous allegation of sexual abuse; and (4) the prosecutor committed misconduct by arguing matters during closing argument that the trial court had excluded at the State's request. (Doc. 1.)

         Respondent filed a Response to Order to Show Cause, in which he argues that Ground Four and parts of Grounds One and Two are procedurally defaulted; and all of McIntosh's claims fail on their merits. (Doc. 9.)

         McIntosh subsequently filed a Motion for Stay and Motion to Order Respondent to File a Supplemental Response in light of the Affidavit of Mr. Angelo Veal filed contemporaneously with his Motion. (Doc. 15.) The Court granted his Motion in part, and directed Respondent to file a Supplemental Response addressing the Affidavit and arguments presented. (Doc. 16.) Respondent filed a Supplemental Response on June 19, 2015 (Doc. 21), to which McIntosh filed a Reply (Doc. 22).

         II. Facts[1]

         [McIntosh] met C.P. (“Mother”) and her three-year-old daughter, H.P. (“Victim”), in November 2004 through their mutual friend, Angelo Veal. Veal was a close friend of Mother, Victim's godfather, and a former boyfriend of McIntosh's sister. Veal and [McIntosh] lived and worked together.

         [McIntosh] and Mother developed a personal familial relationship during which time [McIntosh] babysat Victim on three separate occasions. The first occasion occurred at Veal's home on McPherson Avenue in the City of St. Louis. The second occasion occurred at Veal's new home after they moved to Jennings in St. Louis County. The third occasion occurred at Mother's home on North Tucker Boulevard in the City of St. Louis on January 5, 2005.

         In the early morning hours of January 6, 2005, Victim woke up whimpering and indicated she had to use the bathroom. Mother accompanied her to the bathroom, and when Victim began to urinate, she started to cry. Victim told Mother her “tee-tee” hurt, which was Victim's word for vagina. When Mother asked what happened, Victim said, “[McIntosh] touched my tee-tee.” Victim told Mother that [McIntosh] had been tickling her and instructed her to lie down on the couch, where he pulled off her pants, and touched her vagina. Afterward, [McIntosh] gave her candy.

         Later that afternoon, Mother took Victim to Cardinal Glennon Children's Hospital, where an examination revealed some redness in Victim's vaginal area. Victim spoke to a detective with the child abuse unit and a forensic interviewer at a child advocacy center and told each of them that [McIntosh] touched her vagina with his hand. Approximately two weeks later, Victim told Mother that the first time [McIntosh] touched her vagina was at Veal's new home in Jennings, and afterward, he gave her cake and ice cream.

         [McIntosh] was charged with one count of first-degree statutory sodomy, section 566.062, RSMo 2000, for the incident that occurred at Mother's home. Mother, Victim, the examining doctor, the detective, the forensic interviewer, and [McIntosh] testified at trial.

         III. Standard of Review

         A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

(d) An application for a 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 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 Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362 (2000). With respect to the Acontrary to" language, a majority of the Court held that a state court decision is contrary to clearly established federal law Aif the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or if the state court Adecides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 405. Under the Aunreasonable application" prong of ' 2254(d)(1), a writ may issue if Athe state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id. Thus, Aa federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 410. Although the Court failed to specifically define Aobjectively unreasonable, " it observed that Aan unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410.

         IV. Procedural Default

         To avoid defaulting on a claim, a petitioner seeking federal habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and citations omitted) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his claims in each appropriate state court before seeking federal habeas review of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not fairly presented to the state courts are procedurally defaulted. See Id. at 1022.

         In cases of procedural default, federal courts are barred from reaching the merits of the defaulted ground absent a showing of both ‘cause' and ‘actual prejudice' resulting from the alleged constitutional violations. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A petitioner must “show that some objective factor external to the defense impeded counsel [or petitioner's] efforts to comply with the State's procedural rule” in order to show “cause” for procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). “Cause” can be demonstrated by either “a showing that the factual or legal basis for a claim was not reasonably available to counsel” or by a showing that interference by officials made compliance impracticable. Id. If a petitioner cannot show ‘cause' for the procedural default, then the court need not determine whether actual prejudice has resulted. See Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir. 1987).

         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 v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).

         V. McIntosh's Grounds for Relief

         A. Ground One

         In his first ground for relief, McIntosh argues that trial counsel was ineffective in failing to call Angelo Veal, Rodriguez Hernandez, and Dennis Gordan to testify on McIntosh's behalf.

         Respondent argues that McIntosh's claims regarding Hernandez and Gordan are procedurally defaulted because McIntosh did not properly raise them in state court.

         1. Hernandez and Gordan

         McIntosh alleged that counsel was ineffective for failing to call Hernandez and Gordan in his pro se post-conviction relief motion (Respt's Ex. 1 at 5), but did not include this claim in his amended post-conviction motion (Id. at 18-19) or in his appeal from the denial of post-conviction relief (Respt's Ex. J).

         Under Missouri law, claims not included in the amended motion for post-conviction relief are not considered to be before the motion court. Wills v. State, 321 S.W.3d 375, 386 (Mo.Ct.App. 2010); Self v. State, 14 S.W.3d 223, 226 (Mo. App. S.D. 2000) (“Allegations in a pro se motion that are not included in a subsequently filed amended motion are not for consideration.”). When appellate court review of a post-conviction motion is available, failure to include a claim made to the motion court in an appeal operates as a procedural bar to consideration of such a claim by the federal courts. Flieger v. Delo, 16 F.3d 878, 885 (8th Cir. 1994). “A petitioner must present ‘both the factual and legal premises' of his claims to the state courts in order to preserve them for federal habeas review.” Flieger, 16 F.3d at 884 (citing Cox v. Lockhart, 970 F.2d 448, 454 (8th Cir. 1992). “A failure to exhaust remedies properly in accordance with state procedure results in procedural default of the prisoner's claims.” Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010).

         Because McIntosh did not raise these claims in his amended post-conviction relief motion or in his post-conviction appeal, they are procedurally defaulted. McIntosh argues that his procedural default should be excused under Martinez v. Ryan, 132 S.Ct. 1309 (2012), because post-conviction counsel was ineffective in failing to include the claims in the amended motion.

         The United States Supreme Court has held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315. To meet this narrow exception for establishing cause, McIntosh must demonstrate that post-conviction counsel was ineffective under the standards of Strickland. Therefore, “[t]o overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id. at 1318.

         The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must show that 1) his counsel's performance was deficient, and 2) the deficient performance prejudiced his defense. Id. at 687. In evaluating counsel's performance, the basic inquiry is “whether counsel's assistance was reasonable considering all the circumstances.” Id. at 688. The petitioner bears a heavy burden in overcoming “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To establish prejudice, the petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         Here, McIntosh does not indicate what testimony Hernandez and Gordan would provide, or how such testimony would support his defense. He, therefore, fails to show that the underlying ineffective assistance of trial counsel claim is “substantial” and has “some merit” as required by Martinez. McIntosh has not established cause to avoid the procedural bar preventing consideration of the merits of this claim.

         McIntosh argues that he is factually innocent of the underlying crime. To establish a gateway actual innocence claim, however, the petitioner must demonstrate in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him in light of new evidence. Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). The standard is demanding and permits review only in the extraordinary case. House v. Bell, 547 U.S. 518, 538 (2006). “If a petitioner presents sufficient evidence of actual innocence, he should be allowed through this gateway permitting him to argue the merits of his underlying constitutional claims.” Armine v. Bowersox, 128 F.3d 1222, 1227 (8th Cir. 1997). “The gateway should open only when a petition presents ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.