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Mergelmeyer v. Cassady

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

September 25, 2017

CHAD MERGELMEYER, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the Petition of Chad Mergelmeyer for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

         I. Procedural History

         Petitioner 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.)

         On June 12, 2009, a jury found Petitioner guilty of involuntary manslaughter of the Petitioner's brother, Gary.[1] (Respt's Ex. B at 161.) The court sentenced him as a persistent offender to twenty years' imprisonment. Id. at 168.

         Petitioner 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.)

         Petitioner 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.

         Petitioner 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. J)

         Petitioner 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.)

         On 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.)

         II. Background Facts

         The 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 passenger, Gary.

         Petitioner's 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.

         The 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 accident.

         The jury found Petitioner guilty of first-degree involuntary manslaughter.

         III. Timeliness

         Respondent argues that the instant Petition is untimely. Petitioner has not responded to Respondent's argument regarding the timeliness of the Petition.

         Pursuant 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 appeal.

         In 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.

         Thus, the Petition mailed on August 11, 2014-seventeen days after the deadline-was untimely filed.

         IV. Procedural Default

         Respondent 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.

         To 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.

         Petitioner 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.

         Petitioner 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.”).

         Claims 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 (1995).

         Here, 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.

         V. 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 ...

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