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Melton v. Bowersox

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

August 28, 2017

ROBERT A. MELTON, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Robert Melton's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The Government has responded. (Doc. 9.) For the following reasons, Petitioner's petition is DENIED and this action is DISMISSED with prejudice.

         I. Introduction and Background

         On September 11, 2008, a jury found Petitioner guilty of two counts of first-degree robbery and one count of armed criminal action stemming from a string of robberies at gunpoint. (Resp. Ex. B at 119-22.) The court sentenced him to an aggregate term of twenty-three years in prison. (Id.)

         At trial, the Government presented the testimony of Margarett Kinder. The Missouri Court of Appeals summarized her testimony as follows:

Ms. Kinder testified at [Petitioner's] trial that she went out to her car at 1:30 in the morning to take trash out. She bent down to the floorboard and when she looked up she saw headlights in her rearview mirror. Three men with guns rushed up to the car, two on the driver's side and one on the passenger side. One of the men on the driver's side had a bandana on which fell down. He pushed her down onto the seat and was holding her while he checked to see if she had any money. She threw her keys out the passenger window, and the man on the passenger side, who she identified as [Petitioner], went to get the keys. He then came around the car and handed the keys to the man who had held her down. She had been pulled out of the car, and they pushed her aside and the three men got in her car and left. Her car was located and she was taken by the police about twenty minutes after the robbery to where the car was recovered. She was then taken about an hour later to view four men and she was asked if any of them looked familiar. She was able to pick out three of them, and at trial she said she was positive of her identification. . . . [S]he acknowledged during cross-examination that she said during her deposition that the identification was based on “their clothing, their build” and also what their hair was like.

(Resp. Ex. G at 104-05.) Petitioner was among the men Kinder identified.

         While the four men were assembled, police took a photograph. (See Resp. Ex. K.) That photograph and several others were then shown to Susan Harvey, who had been the victim of an armed robbery by four men two days before. (Resp. Ex. A at 233-34.) Harvey testified that the police presented her with several individual and group photographs and that she had identified all four men as the ones who robbed her. (Id. at 235-36; 242-44.)

         Prior to trial, Petitioner moved to suppress Kinder's and Harvey's identifications as unconstitutionally suggestive, but both were admitted. (Resp. Ex. B at 19-20, 30-31.) On direct appeal, Petitioner's sole argument was that the trial court erred by denying his motion to suppress Harvey's identification. (See Resp. Ex. F at 6.) Finding that police had presented Harvey with multiple photographs and had not made any statements to suggest whether any of the men pictured was a suspect in her robbery, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence. (Id.)

         Petitioner subsequently filed a pro se motion to vacate, set aside, or correct the judgement or sentence under Missouri Supreme Court Rule 29.15, in which he advanced eleven instances of ineffective assistance of trial counsel. (Resp. Ex. G at 11-15.) Petitioner was appointed counsel (id. at 3), who filed an amended post-conviction motion that added a twelfth instance asserting that trial counsel was ineffective for failing to impeach Kinder with allegedly inconsistent testimony she had given at the trial of Petitioner's co-defendant, Deangelo Jones (id. at 59-71). The Motion court denied relief. (Id. at 102-09.) On appeal from that denial, Petitioner's only point relied on was that counsel was ineffective for failing to impeach Kinder. (Resp. Ex. H.) The Missouri Court of Appeals affirmed the motion court's denial. (Resp. Ex. J.)

         Petitioner then filed this § 2254 petition, raising three grounds for relief:

(1) The trial court erred in denying his motion to suppress Harvey's identification;
(2) Counsel was ineffective ...

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