United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned on the petition of Missouri
state prisoner John Haidul, Jr. (“Petitioner”)
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. (Doc. 1). The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to U.S. § 636(c)(1). (Doc. 6). For the
following reasons, the petition is denied.
Missouri Court of Appeals summarized the facts as follows:
The State charged Petitioner with first-degree robbery. The
trial court conducted a jury trial. At trial, the State
presented evidence from a Commerce Bank teller who stated
that in September 2007 a man she later identified as
[Petitioner] entered the bank and presented her with a note
reading, “This is a robbery. I have a gun. Give me all
your money.” The teller testified that she complied
with the demand, and [Petitioner] left the bank with the
Security camera footage of the robbery, which was broadcast
on the evening news, was admitted into evidence and shown to
the jury. [Petitioner's] babysitter testified that she
recognized [Petitioner] from images on a news channel's
website and called the police. The babysitter further
recounted that she showed the footage to [Petitioner's]
wife, who began crying and responded, “Oh my God,
that's [Petitioner].” The State also presented the
testimony of a City of Florissant police officer who stated
that [Petitioner] was placed under arrest, confessed to
committing the crime, and prepared a written statement to
that effect. [Petitioner's] written confession was
admitted into evidence.
[Petitioner] testified on his behalf at trial and during
cross-examination claimed to be at lunch with a friend named
David Holt (“Holt”) at the time of the robbery.
[Petitioner] acknowledged that Holt would not be testifying.
The jury found [Petitioner] guilty of first-degree robbery.
The trial court sentenced [Petitioner] to a term of twenty
years' imprisonment. On appeal, this Court affirmed the
judgment. State v. Haidul, 334 S.W.3d 920 (Mo. App.
Resp't Ex. U, at 1-2.
filed a pro se motion for post-conviction relief.
Resp't Ex. L, at 4-22. In that motion, he asserted
several claims of ineffective assistance of trial counsel.
Resp't Ex. L, at 12-16. Petitioner subsequently filed,
through counsel, an amended motion for post-conviction
relief, in which he asserted that his trial counsel was
ineffective because he had not contacted David Holt and
called him as an alibi witness at trial. Id. at
26-37. Petitioner also stated in the amended motion that he
was including in the motion his pro se claims.
Id. at 34.
motion court denied Petitioner's request for an
evidentiary hearing as to the claims asserted in his pro
se motion, but held an evidentiary hearing to address
Petitioner's claim that his counsel was ineffective for
failing to call David Holt as a witness. Resp't Ex. K;
Resp't Ex. L, at 114. The court ultimately denied all of
Petitioner's claims. Resp't Ex. L, at 114-39. On
September 30, 2013, Petitioner filed an appeal, through
counsel, asserting on appeal only the claim that trial
counsel was ineffective for failing to call David Holt as a
witness. Resp't Ex. M. On January 10, 2014, Petitioner
filed, through counsel, a document entitled,
“Appellant's Waiver of Counsel and Request to
Proceed Pro Se, With Attached Pro Se Appellant's
Brief.” Resp't Ex. O. The motion requested that
Petitioner be permitted to proceed pro se and that
the court accept his pro se brief. Id. The
motion was accompanied by a pro se brief in which
Plaintiff asserted three claims: (1) ineffective assistance
based on trial counsel's failure to present or use
several pieces of evidence; (2) ineffective assistance of
counsel based on the failure to investigate and call various
defense witnesses; and (3) ineffective assistance of counsel
based on the failure to investigate Petitioner's
assertion that Detective Lewis had denied him the right to
counsel and that he had inhaled toxic mace a few hours before
giving his written confession. Resp't Ex. P, at 8, 38,
43. On January 15, 2014, the Missouri Court of Appeals
granted Petitioner's request to proceed pro se
but denied his request to accept the pro se brief;
it did not state any reasons for its decision. Resp't Ex.
Q. On February 6, 2014, Petitioner filed a motion to file a
reply brief out of time. Resp't Ex. R. On February 14,
2014, the Missouri Court of Appeals denied the motion on the
ground that it was out of time, was not a proper reply brief,
and included several attached documents that had not been
filed as part of the legal file. Resp't Ex. T. The
Missouri Court of Appeals then affirmed the decision of the
motion court on the single claim presented by
Petitioner's post-conviction counsel. Resp't Ex. U.
instant petition, Petitioner asserts ten claims of
ineffective assistance of trial counsel: (1) failure to call
David Holt, Mary Peters, and Steven Shear as defense
witnesses; (2) failure to obtain a photo or Carfax report of
Petitioner's car to refute the State's theory that
Petitioner's car was seen at the scene of the robbery;
(3) failure to obtain transcripts of Detective Lewis'
testimony from a motion to suppress hearing in another case;
(4) failure to contact witnesses whose testimony would have
shown that Petitioner was denied counsel during his
interrogations; (5) failure to object to the testimony of
Cathy Bienkowski that Petitioner had paid her in cash; (6)
failure to contact and depose Petitioner's father about
exculpatory evidence regarding Petitioner's ex-wife; (7)
failure to obtain and present photographs of Richard Michele
and Christopher Knocke and to present Crime Stoppers tips to show
that there were people other than Petitioner who resembled
the robbery suspect; (8) failure to investigate
Petitioner's contention that he was exposed to mace and
denied his asthma inhaler shortly before his confession; (9)
failure to introduce evidence to prove that Petitioner's
ex-wife committed perjury during her dissolution from
Petitioner; and (10) failure to introduce evidence to
undermine the bank teller, Ms. Hernandez's testimony.
Pet'n, Doc. 1. While Petitioner raised eight of these
grounds in his post-conviction motion, Petitioner only raised
part of one of these grounds (Ground One, as it relates to
David Holt) in his post-conviction appeal, filed through
counsel. Resp't Ex. M.
Legal Standard for Reviewing Claims Adjudicated on the Merits
in State Court
habeas review exists only “as ‘a guard against
extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal.'” Woods v. Donald, 135 S.Ct. 1372,
1376 (2015) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). Accordingly,
“[i]n the habeas setting, a federal court is bound by
the AEDPA [the Antiterrorism and Effective Death Penalty Act]
to exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327
F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254).
Under AEDPA, a federal court may not grant habeas relief to a
state prisoner with respect to any claim that was adjudicated
on the merits in the state court proceedings unless the state
court's adjudication of a 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; or (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). A state court decision is “contrary to”
clearly established Supreme Court precedents “if the
state court applies a rule that contradicts the governing law
set forth in [the Supreme Court's] cases” or
“if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[the Supreme Court's] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Brown
v. Payton, 544 U.S. 133, 141 (2005). A state court
decision involves an “unreasonable application”
of clearly established federal law if it “correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case.” Williams, 529 U.S. at 407-08; see
also Bell v. Cone, 535 U.S. 685, 694 (2002).
“Finally, a state court decision involves an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it
is shown that the state court's presumptively correct
factual findings do not enjoy support in the record.”
Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.
2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39
(2006) (noting that state court factual findings are presumed
correct unless the habeas petitioner rebuts them through
clear and convincing evidence) (citing 28 U.S.C. §
instant case, each of Petitioner's claims is based on an
assertion that his counsel was ineffective. The Sixth
Amendment guarantees a criminal defendant the right to
effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). To show
ineffective assistance of counsel, Petitioner must show both
that “[his] counsel's performance was
deficient” and that “the deficient performance
prejudiced [his] defense.” Id.at 687; see
also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904
(8th Cir. 2014). To show deficient performance, Petitioner
must show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. “Judicial
scrutiny of counsel's performance must be highly
deferential, ” and Petitioner bears a heavy burden in
overcoming “a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance” and “might be considered
sound trial strategy.” Id. at 689 (citation
and internal quotation marks omitted). To demonstrate
prejudice, a 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. “An error
by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment.”
Id. at 691.
ineffective assistance claim has been addressed by the state
court, this Court must bear in mind that “[t]aken
together, AEDPA and Strickland establish a
‘doubly deferential standard' of review.”
Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012)
(quoting Cullen v. Pinholster, 563 U.S. 170, 190
(2011)). In the context of a habeas claim, it is not
sufficient for a petitioner to “show that he would have
satisfied Strickland's test if his claim were
being analyzed in the first instance, ” Bell,
535 U.S. at 698-99. “Rather, he must show that the
[state court] applied Strickland to the facts of his
case in an objectively unreasonable manner.”
Id. at 699.
preserve a claim for federal habeas review, “a state
habeas petitioner must present that claim to the state court
and allow that court an opportunity to address his
claim.” Moore-El v. Luebbers, 446 F.3d 890,
896 (8th Cir. 2006) (citing Coleman v. Thompson, 501
U.S. 722, 731-32 (1991)). “Where a petitioner fails to
follow applicable state procedural rules, any claims not
properly raised before the state court are procedurally
defaulted.” Id. The federal habeas court will
consider a procedurally defaulted claim “only where the
petitioner can establish either cause for the default and
actual prejudice, or that the default will result in a
fundamental miscarriage of justice.” Id.
(citing Sawyer v. Whitley, 505 U.S. 333, 338-39
(1992)). To demonstrate cause, a petitioner must show that
“some objective factor external to the defense impeded
[the petitioner's] efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To establish prejudice, a petitioner must
demonstrate that the claimed errors “worked to his
actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982);
accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir.
1999). Lastly, in order to assert the fundamental miscarriage
of justice exception, a petitioner must “present new
evidence that affirmatively demonstrates that he is innocent
of the crime for which he was convicted.” Murphy v.
King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting
Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
Claim Properly Presented at Each Step of the State
Post-Conviction Process: Ground One (Part A)-Ineffective
Assistance of Counsel Based on Failure to Call David Holt as
Ground One (Part A), Petitioner argues that his trial counsel
was ineffective because she failed to contact David Holt and
call him as an alibi witness. Petitioner asserts that he had
lunch with Mr. Holt on the day of the bank robbery and that
he informed his trial counsel of that fact. Petitioner also
suggests that Mr. Holt could have been a witness to
Petitioner's physical description at the time of the
robbery. This claim was presented in Petitioner's amended
motion for post-conviction relief and in his appeal from the
denial of that motion, and the state courts denied the claim
on the merits.
denying this claim, the Missouri Court of Appeals found that
Petitioner had not established either prong of
Strickland. It stated:
We . . . find that [Petitioner] does not establish that his
trial counsel employed unreasonable trial strategy. Counsel
testified that she did not consider Holt a good witness
because of the uncertainty surrounding his potential
testimony. Counsel also indicated that [Petitioner] did not
tell her Holt's last name or ask her to contact him. In
light of counsel's explanation and the strong presumption
that a decision to not call a witness is a matter of trial
strategy, we do not find that [Petitioner] has shown that his
counsel's performance was deficient under the first prong
of Strickland v. Washington.
Moreover, [Petitioner] does not show that counsel's
failure to call Holt prejudiced his defense, as is required
under the second prong of Strickland. Holt's
testimony at the evidentiary hearing would not have supported
[Petitioner]'s alibi, but would have been detrimental to
his defense. Additionally, we note that the State's case
against [Petitioner] was strong. The State presented
overwhelming evidence of [Petitioner]'s guilt: the jury
saw security camera footage of the robbery, heard from
eyewitnesses, and learned [Petitioner] had confessed to the
crime. As such, we find that [Petitioner] did not suffer any
prejudice and the result of the proceeding would not have
been different had Holt testified. Point I is denied.
Resp't Ex. U, at p. 5.
Missouri Court of Appeals' adjudication of the claim was
not objectively unreasonable under Strickland. The
court's finding regard to the first prong of
Strickland (deficient performance) is supported by
Petitioner's trial counsel's testimony that although
Petitioner had told her that there was a friend of his that
he had supposedly had lunch with on the day of the robbery,
her notes indicate that the friend was not certain what day
he actually had lunch with Petitioner and that there was
uncertainty about it. Resp't Ex. K, at 12-13. It was not
unreasonable for Petitioner's trial counsel not to
contact a witness who was uncertain about Petitioner's
whereabouts at the time of the crime.
even assuming, arguendo, that Petitioner could
establish the first prong of Strickland, the record
makes it clear that Petitioner was not prejudiced by his
trial counsel's failure to contact Mr. Holt or call him
as a witness. Mr. Holt's testimony at the evidentiary
hearing shows that Mr. Holt did not remember having
lunch with Petitioner on the date of the robbery (a Monday):
Q: So, not to interrupt you, he called, he said remember that
time we went to lunch?
Q: It was Monday?
Q: How did you respond?
A: My response was John, we really shouldn't-well.
Q: I am sorry, at this time were you sure, let me ask you
A: I was positive of when he was talking about, not the date,
but when he was talking about we had lunch, I was positive.
Q: At that time you weren't sure ...