United States District Court, E.D. Missouri, Eastern Division
ORDER AND REPORT AND RECOMMENDATION OF UNITED STATES
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE
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).
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.)
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
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.)
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.
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.
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.)
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.)
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.)
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).
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.
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.
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.
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
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
Standard of Review
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;
(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).
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.
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.
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).
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)).
McIntosh's Grounds for Relief
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
argues that McIntosh's claims regarding Hernandez and
Gordan are procedurally defaulted because McIntosh did not
properly raise them in state court.
Hernandez and Gordan
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).
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
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.
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.
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.
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.
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 ...