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Haidul v. Steele

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

September 28, 2017

JOHN HAIDUL, JR., Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Factual Background

         The 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 cash.
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. E.D. 2011).

Resp't Ex. U, at 1-2.

         Petitioner 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.

         The 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.

         In the instant petition, Petitioner asserts ten claims of ineffective assistance of trial counsel: (1) failure to call David Holt, Mary Peters, and Steven Shear[1] 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[2] 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.

         II. Legal Standards

         A. Legal Standard for Reviewing Claims Adjudicated on the Merits in State Court

         Federal 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. § 2254(e)(1)).

         In the 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.

         When an 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.

         B. Procedural Default

         To 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)).

         III. Discussion

         A. 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 a Witness

         In 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.

         In 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.

         The 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.

         Moreover, 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?
A: Yes.
Q: It was Monday?
A: Yes.
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 that.
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 ...

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