United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Petition of Chad
Mergelmeyer for a Writ of Habeas Corpus under 28 U.S.C.
is currently incarcerated at the Jefferson City Correctional
Center in Jefferson City, Missouri, pursuant to the Sentence
and Judgment of the Circuit Court of Warren County, Missouri.
(Respt's Ex. C at 82-83.)
12, 2009, a jury found Petitioner guilty of involuntary
manslaughter of the Petitioner's brother,
Gary. (Respt's Ex. B at 161.) The court
sentenced him as a persistent offender to twenty years'
imprisonment. Id. at 168.
raised two points on direct appeal of his conviction.
(Respt's Ex. D.) He first argued that the trial court
abused its discretion in sustaining the State's
objections to defense counsel's attempted questioning of
potential jurors about Petitioner's alleged admissions to
driving the vehicle involved in the accident which resulted
in Gary's death. Id. He next argued that the
trial court erred in overruling his objection and in
admitting into evidence his statements made to Sgt. Chris
Patton before he was informed of his Miranda rights.
Id. On October 12, 2010, the Missouri Court of
Appeals affirmed the judgment of the trial court.
(Respt's Ex. F.)
filed a pro se motion for post-conviction relief
under Rule 29.15 on January 26, 2011. (Respt's Ex. G at
4-14.) After appointment of counsel, Petitioner filed an
amended post-conviction relief motion under Rule 29.15 and
request for an evidentiary hearing, in which he raised the
following claims: (1) he was denied due process because the
prosecutor engaged in misconduct when he failed to disclose
the Victim Impact Statement of Petitioner and Gary's
mother, Donna Mergelmeyer, and used the statement against him
at trial; (2) he was denied due process because the
prosecutor engaged in misconduct when he asked Mrs.
Mergelmeyer questions about her family's lack of support
for Petitioner despite sustained objections; (3) he was
denied effective assistance of counsel because trial counsel
failed to object when the State presented evidence of Mrs.
Mergelmeyer's filing and settlement of a wrongful death
action; and (4) he was denied due process of law and
effective assistance of counsel because Petitioner was
improperly prevented from cross-examining Mrs. Mergelmeyer
about who had told her Petitioner was driving. (Respt's
Ex. G at 15-35.) On November 30, 2012, the motion court
denied Petitioner's amended motion and request for an
evidentiary hearing. Id. at 36-44.
raised the following points on appeal from the denial of
post-conviction relief: (1) he was denied due process when
the prosecution failed to disclose Mrs. Mergelmeyer's
victim impact statement and used the statement against him at
trial; (2) he was denied effective assistance of counsel
because trial counsel failed to object to evidence of Mrs.
Mergelmeyer's wrongful death settlement; and (3) he was
denied effective assistance of counsel because appellate
counsel failed to assert on direct appeal that the trial
court erred in not allowing him to cross-examine Mrs.
Mergelmeyer about who had told her that Petitioner was
driving. (Respt's Ex. H.) The Missouri Court of Appeals
affirmed the decision of the motion court. (Respt's Ex.
filed the instant habeas action on January 30, 2013, raising
the following grounds for relief: (1) the prosecutor engaged
in misconduct when he failed to disclose Mrs.
Mergelmeyer's Victim Impact Statement and used such
statement against Petitioner at trial, constituting a
discovery and Brady violation; (2) the prosecutor
engaged in misconduct when he asked Mrs. Mergelmeyer about
her family's lack of support for Petitioner and her
speculation about whether Petitioner was driving despite
sustained objections; (3) trial counsel was ineffective in
failing to object when the State presented evidence of Mrs.
Mergelmeyer's filing and settlement of a wrongful death
action; and (4) the trial court erred in not allowing him to
ask Mrs. Mergelmeyer on re-cross about who told her that
Petitioner was driving. He also argues in Ground Four that
trial counsel was ineffective for not making an offer of
proof and that appellate counsel was ineffective for not
challenging the limitations on the re-cross examination on
appeal. (Doc. 1.)
October 20, 2014, Respondent filed a Response to Order to
Show Cause, in which he argues that Grounds One, Two, and
parts of Ground Four are procedurally defaulted; the Petition
is untimely; and all of Petitioner's claims fail on their
merits. (Doc. 8.)
Court's summary of the facts below is taken from the
decision of the Missouri Court of Appeals affirming the
denial of post-conviction relief. (Respt's Ex. J at 2-3.)
On April 16, 2008, Petitioner and his brother, Gary
Mergelmeyer (“Gary”), were involved in a
one-vehicle accident resulting in Gary's death. Prior to
being taken to the hospital, Petitioner was placed under
arrest for drunk driving. Petitioner was subsequently charged
with one count of first-degree involuntary manslaughter. The
State of Missouri alleged that Petitioner was under the
influence of alcohol when he operated the motor vehicle, and
through criminal negligence, caused the death of his
case proceeded to a jury trial on June 11 and 12, 2009. At
trial, Petitioner claimed he was not the driver of the truck
involved in the accident, but that his brother Gary was the
driver. The State presented substantial evidence that
Petitioner was the driver, including the following: evidence
that Gary did not have a driver's license and those who
knew him had not seem him drive in years; an accident
reconstructionist who testified that the circumstances of the
crash indicated Petitioner was the driver; and a Missouri
State Highway Patrol trooper who testified that Petitioner
admitted he was driving the truck during an interview with
the trooper the night of the accident.
State also presented the testimony of Petitioner and
Gary's mother, Donna Mergelmeyer. Mrs. Mergelmeyer
testified that following Gary's death, she had been in
contact with the prosecutor's victim advocate and had
filled out a victim impact statement. She further testified
that she accepted a $25, 000 wrongful death settlement from
Petitioner's insurance company because it was her
understanding that Petitioner was driving the night of the
jury found Petitioner guilty of first-degree involuntary
argues that the instant Petition is untimely. Petitioner has
not responded to Respondent's argument regarding the
timeliness of the Petition.
to 28 U.S.C. § 2244(d), Petitioner had one year from the
date his judgment of conviction became final within which to
file a petition for writ of habeas corpus in federal court.
Where, as here, a Missouri petitioner does not seek transfer
to the Missouri Supreme Court after direct appeal, his
judgment becomes final upon expiration of the time within
which to seek such discretionary review, that is, fifteen
days after the court of appeals issues its opinion.
Gonzalez v. Thaler, 565 U.S. 134 (2012); Mo. S.Ct.
R. 83.02. Thus, Petitioner's judgment of conviction
became final on October 27, 2010, fifteen days after the
Missouri Court of Appeals affirmed his conviction on direct
examining whether the instant Petition was timely filed, it
is important to note that the one-year limitations period was
tolled during the pendency of Petitioner's
post-conviction proceedings. 28 U.S.C. § 2244(d)(2).
Petitioner filed his pro se motion for post-conviction relief
on January 26, 2011. (Respt's Ex. G at p.) Because the
statute ran ninety-one days from the conclusion of direct
review to the filing of the post-conviction motion,
Petitioner had two hundred seventy-five days of
“untolled” time remaining to file his Petition.
The statute began to run again on October 23, 2013, the date
of the issuance of the mandate in Petitioner's
post-conviction relief proceedings. See Payne v.
Kemna, 441 F.3d 570, 572 (8th Cir. 2006).
Petitioner's deadline to file the instant petition was
July 25, 2014, two-hundred-seventy-five days after the
mandate was issued.
the Petition mailed on August 11, 2014-seventeen days after
the deadline-was untimely filed.
argues that Grounds One, Two, and parts of Ground Four are
procedurally defaulted, because Petitioner did not properly
raise them in the State court proceedings.
avoid defaulting on a claim, a federal habeas petitioner 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 a federal writ of habeas corpus.
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.
did not raise the claims that the State asked improper
questions to Mrs. Mergelmeyer (Ground Two) or the claim that
the trial court erred in connection with the re-cross of Mrs.
Mergelmeyer (Ground Four) in his appeal from the denial of
post-conviction relief. When appellate review of a
post-conviction motion is available, failure to include a
claim made to the motion court 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);
Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993). As
a result, these claims are procedurally defaulted.
raised the claim contained in Ground One regarding the
alleged discovery violation in the post-conviction
proceedings, but did not raise it on direct appeal. The
Missouri Court of Appeals found that the claim was not
cognizable on post-conviction review because Petitioner knew
of the alleged discovery violation during trial and he should
have raised the claim in his direct appeal. (Respt's Ex.
J at 5.) “Federal courts may not grant habeas relief
based on procedurally defaulted claims if the state
court's reason for finding default rests on adequate and
independent state grounds.” Wooten v. Norris,
578 F.3d 767, 777 (8th Cir. 2009) (citation omitted). The
Missouri Court of Appeals' rejection of Petitioner's
post-conviction claim of a discovery and Brady
violation was based solely on a state procedural rule,
specifically, the requirement that claims of Brady
violations must be raised on direct appeal. See Ivory v.
State, 422 S.W.3d 503, 507 (Mo.Ct.App. 2014) (citation
omitted) (“Generally, claims of prosecutorial
misconduct are to be brought up on direct appeal and are not
cognizable in a Rule 29.15 proceeding.”).
that have not been fairly presented to the state courts are
procedurally defaulted and may not give rise to federal
habeas relief unless the petitioner establishes “cause
for not presenting the claim on post-conviction appeal and
prejudice from the failure, or a fundamental miscarriage of
justice-meaning that he is actually innocent.”
Storey v. Roper, 603 F.3d 507, 523-24 (8th Cir.
2010), citing Schlup v. Delo, 513 U.S. 298, 324
Petitioner does not allege cause and prejudice nor does he
make a showing of actual innocence. Accordingly,
Petitioner's defaulted grounds for relief cannot be
resurrected from procedural default.
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 ...