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Davis v. McBee

United States District Court, W.D. Missouri, St. Joseph Division

September 21, 2017

VERONICA MICHELLE DAVIS, Petitioner,
v.
CHRIS MCBEE, [1] Warden, Chillicothe Correctional Center, Respondent.

          AMENDED ORDER AND OPINION (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING ISSUANCE OF CERTIFICATE OF APPEALABILITY, AND (3) DISMISSING MATTER WITH PREJUDICE

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is Petitioner Veronica Michelle Davis's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Doc. #1. For the following reasons, the Court denies the Petition, and declines to issue a Certificate of Appealability.

         I. BACKGROUND

         The underlying facts were summarized by the Missouri Court of Appeals:

At the time of trial, Defendant had three minor children, two girls, C. and K., and one boy, J. (collectively, “the children”). Near the end of 2005 or the beginning of 2006, the children were in State custody as Defendant was hospitalized for a drug problem. While the children were in State custody, Defendant began dating Nelson. In November 2006, Defendant told Sheena Petit (“Juvenile Officer”) that Nelson was living in her home. Juvenile Officer asked for Nelson's information so she could run a background check on him. Nelson told Defendant he had been accused of touching his step-daughter. The background check conducted by Juvenile Officer confirmed Nelson was a registered sex offender. Defendant “felt no need for concern with it[, ]” but Juvenile Officer told Defendant that Nelson could not have any contact with the children while they were in State custody. Defendant told Juvenile Officer she would comply with this requirement.
In May 2007, however, Juvenile Officer discovered Nelson was having contact with the children when they were staying with Defendant for weekend visits. Defendant's visits were suspended for some time. Juvenile Officer had strong concerns about the children, especially C., who was about the same age as the victim in Nelson's previous sex offender case. Nonetheless, the children were eventually returned to Defendant on December 17, 2007.
Defendant married Nelson on January 1, 2008. In February 2008, Defendant filed a petition for an order of protection from Nelson. In that petition, she described Nelson's violence towards her. She stated Nelson was “unpredictable” with her and the children. She also stated “I'm afraid he will harm us.” Sometime later, Juvenile Officer saw Defendant and C. at a grocery store. Defendant leaned down to C., pointed to Juvenile Officer and said “You don't ever tell this woman anything.”
In May 2008, Defendant was remanded to the Department of Corrections on another case. In June 2008, Children's Division received a referral indicating that upon her incarceration, Defendant had left the children in Nelson's care. A Children's Division investigator, Jessica Tyrell (“Investigator”), and a sheriff's deputy went to Nelson's residence to investigate. Investigator informed Nelson she had received a referral regarding his care of the children. Nelson advised he had a power of attorney from Defendant and showed Investigator a handwritten, notarized document in which Defendant said she was giving custody of the children to Nelson. Investigator explained the children had been placed in protective custody and removed the children from the home.
After their removal, C. and K. made disclosures of sexual abuse. C. and K. were interviewed at the Lakes Area Child Advocacy Center. In one of those interviews, the interviewer asked C. if she ever told anyone about the abuse. C. replied she had told “you guys.” The interviewer then asked if C. had ever told anyone else. C. said she had told her mother, Defendant. C. also explained Defendant and Nelson had a fight “because I told.” Nelson was subsequently convicted of several sex offenses involving C. and K.
Defendant was charged with two counts of first-degree endangering the welfare of a child. At the time of trial, C. was 10 years old, J. was 9 years old, and K. was 8 years old. C. testified at trial. C. explained Nelson had touched her inappropriately. C. said she did not tell Defendant that Nelson was doing things to her that she did not like, because Defendant told her not to tell her if something happened and that Defendant would kill the children if C. told. The trial court found Defendant guilty as charged. The trial court sentenced her as a prior and persistent offender to two concurrent terms of eight years['] incarceration.

Doc. #7-5, 4-6. Petitioner appealed her conviction to the Missouri Court of Appeals, which affirmed the trial court's judgment on September 16, 2013. Doc. #7-5, at 3-10; State v. Davis, 407 S.W.3d 721 (Mo.Ct.App. 2013). The Missouri Court of Appeals issued its mandate on October 2, 2013. Doc. #1, at 2; Doc. #7-5, at 2.

         On December 12, 2013, Petitioner, proceeding pro se, sought post-conviction relief in Missouri state court. Doc. #7-6, at 8-14.[2] With the assistance of counsel, an amended motion was filed on July 10, 2014, alleging ineffective assistance of counsel. Doc. #7-6, at 15-31. After an evidentiary hearing on June 30, 2015, Petitioner's amended motion was denied. Doc. #7-7; Doc. #7-6, at 31-36. Petitioner appealed to the Missouri Court of Appeals, but later voluntarily dismissed her appeal. Doc. #1, at 6; Doc. #7-8. The Missouri Court of Appeals dismissed the appeal, and issued its mandate on May 4, 2016. Doc. #7-9.

         On April 18, 2017, Petitioner filed a petition for writ of habeas corpus. Doc. #1. She asserts claims based upon alleged ineffective assistance of trial. Doc. #1, at 16. Respondent opposes Petitioner's request for a writ of habeas corpus. Doc. #7. After Petitioner failed to timely file her reply, the Court directed Petitioner to file a reply by no later than September 1, 2017. Doc. #8. On September 1, 2017, Petitioner filed a “Notice.” Doc. #9. Therein, Petitioner's counsel states he “can find no authority to refute claims…about the timeliness of the petition, and does not believe there is a credible argument to be made for equitable tolling….” Id. Thus, Petitioner's counsel believed “the filing of a traverse would be of no additional benefit to the Court.” Id. Petitioner's request for a writ of habeas corpus is now ripe for consideration.

         II. D ...


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