United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON UNITED STATES DISTRICT JUDGE
matter is before the Court on Missouri State prisoner Jerome
Jones' pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The motion is fully
briefed and ready for disposition.
November 13, 2009, a jury in the Circuit Court of St. Louis
City, Missouri, found Petitioner guilty of two counts of
murder in the first degree, one count of robbery in the first
degree, one count of assault in the first degree, and four
counts of armed criminal action. On December 18, 2009,
Petitioner was sentenced to life imprisonment without the
possibility of probation or parole on each of the murder
counts, life imprisonment on both the robbery and assault
counts, and thirty years imprisonment on each of the armed
criminal action counts, with all sentences to run
concurrently. The Missouri Court of Appeals affirmed the
convictions and sentence. State v. Jones, 329 S.W.3d
405 (Mo. App. 2011). Petitioner thereafter filed a motion for
post-conviction relief pursuant to Missouri Supreme Court
Rule 29.15, which was denied without an evidentiary hearing.
The Missouri Court of Appeals affirmed the denial of
post-conviction relief. Jones v. State, 436 S.W.3d
244 (Mo. App. 2014).
is currently incarcerated at the Potosi Correctional Center
in Mineral Point, Missouri. In the instant petition for writ
of habeas corpus, Petitioner raises the following two claims
(1) That Petitioner received ineffective assistance of
counsel, in that trial counsel failed to challenge the
race-neutral reasons offered by the State as grounds for
peremptorily striking three African-American venirepersons;
(2) That the trial court erred in overruling Petitioner's
objection to the State's use of a bank robbery
hypothetical to explain the principle of accomplice liability
to the venire panel during voir dire.
Court will address the claims in turn.
stated above, in Ground 1 of his petition Petitioner asserts
he received ineffective assistance of counsel, in that trial
counsel failed to challenge the race-neutral reasons offered
by the State as grounds for peremptorily striking three
African-American venirepersons. (§ 2254 Petition, PP.
6-7). Petitioner raised this claim before the 29.15
post-conviction motion court, and the court denied the claim
2. In order to establish ineffective assistance of counsel, a
movant must establish that:
1) his counsel did not demonstrate the customary skill and
diligence that a reasonably competent attorney would have
provided under the circumstances; and 2) that he was thereby
prejudiced. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct, . 2052, 80 L.Ed.2d 674 (1984); Williams v.
State, 168 S.W.3d 433, 439 (Mo.banc 2005); Wilkes v.
State, 82 S.W.3d 925, 927 (Mo.banc 2002). If movant
fails to satisfy either prong of the test the other need not
be considered. Buckner v. State, 35 S.W.3d 417, 420
(Mo.App.W.D. 2000). Movant must overcome a strong presumption
that counsel's conduct was reasonable and effective to
meet the first prong of the Strickland test.
Zink v. State, 278 S.W.3d 170, 176 (Mo. 2009). If it
is easier to dispose of the ineffectiveness claim on the
ground of lack of sufficient prejudice that course should be
followed. Demonstrating that the alleged error had some
conceivable effect on the outcome of the trial is not
sufficient. Strong v. State, 263 S.W.3d 636, 647
(Mo. banc 2008). To demonstrate prejudice movant must
establish that but for counsel's error there is a
reasonable probability that the outcome of the proceeding
would have been different. Wilkes, supra;
Sidebottom v. State, 781 S.W.2d 791, 796 (Mo.banc
1989). Movant faces a heavy burden in establishing a claim
for ineffective assistance of counsel. Not only must the
movant prove his or her allegations by a preponderance of the
evidence, but the movant must overcome the court's
presumption that counsel is competent. Yoakum v.
State, 829 S.W.2d 685, 687 (Mo.App. 1993)….
4. Movant's final allegation is that his trial counsel
was ineffective for failing to challenge the State's
reasons for its peremptory strikes of the African-American
venire women Sarah Petty, Kenora Dailey and LaToya Foster as
pretexts for racial discrimination. (Tr. 196, 198-99). Trial
counsel challenged all three women pursuant to Batson v.
Kentucky. Movant states that a crucial fact a trial
court should consider is whether there are similarly situated
jurors of a different race whom the prosecutor did not
strike. State v. Weaver, 912 S.W.2d 499, 509 (Mo.
banc 1995). Additionally, the trial court must consider the
degree of logical relevance between the proffered reasons and
the case on trial, the prosecutor's credibility based on
the prosecutor's statements during voir dire and the
court's past experiences with that prosecutor, and the
demeanor of the excluded jurors. State v. Johnson,
220 S.W.3d 377, 388 (Mo.App.E.D. 2007). Movant states that
trial counsel did not respond to the State's reasons for
peremptorily striking venire women Petty and Dailey and
responded only to the State's reasons for peremptorily
striking venire woman Foster by saying he did not see her
make any faces at Ms. Orwick, the prosecuting attorney. (Tr.
201) Movant alleges that although trial counsel later timely
filed a new trial motion alleging the trial court's
decision to overrule his Batson challenges was
error, and appellate counsel raised the assignment of error
on appeal to the Court of Appeals, the appellate court
declined [to] review the error. The Court of Appeals found
that the failure to challenge the state's race neutral
explanations for its peremptory strikes waived the
Batson challenge and preserved nothing for appeal.
State v. Washington, 288 S.W.3d 312, 317
(Mo.App.E.D. 2009) (quoting State v. Taylor, 944
S.W.2d 925, 934 (Mo.banc 1997)). If the defendant fails to
challenge the state's explanation of the peremptory
strike as a pretext and simply relies on general or
conclusory allegations about the state's reasoning, no
effective Batson challenge has been made, and
nothing is preserved for appeal. State v. Williams,
24 S.W.3d 101, 121 (Mo.App.W.D. 2000).
This Court finds that this allegation is without merit and
denied. Claims that trial counsel was ineffective for failing
to raise a Batson challenge at trial are cognizable
in a Rule 29.15 motion. In a proper case failure to object to
improper jury selections methods could constitute ineffective
assistance affecting the fairness of a criminal trial.
State v. Scott, 183 S.W.3d 244, 247-48 (Mo.App.E.D.
2005). However, it is well-settled that post-conviction
relief based on ineffective assistance of counsel is limited
to errors which prejudiced a movant by denying that movant
the right to a fair trial. If it is easier to dispose of an
ineffective assistance claim on the ground of lack of
sufficient prejudice that course should be followed. To
satisfy the prejudice prong of the Strickland
analysis a movant must show there is a reasonable probability
that but for counsel's unprofessional errors, the result
of the proceeding would have been different. Demonstrating
that the alleged error had some conceivable effect on the
outcome of the trial is not sufficient. In order to avail
himself of a presumption of prejudice movant must establish
that the errors complained of resulted in a trial by a jury
that was not fair and impartial. Strong v. State,
supra at 647 citing Strickland, supra. A movant is
entitled to a presumption of prejudice resulting from
counsel's ineffective assistance during the jury
selection process only if the movant can show that a biased
venireperson ultimately served on the jury. Strong,
citing State v. Scott, supra; State v.
Colbert, 949 S.W.2d 932, 944 (Mo.App. 1997). There has
been no allegation that biased venirepersons ultimately
served on the jury in the instant case. As the Missouri
Supreme Court observed in Strong at 648, at most
Movant could only demonstrate that qualified venirepersons
were excluded from the jury. Accordingly, this allegation is
without merit and denied. This Court also notes that failure
to preserve error for appellate review is not cognizable in a
Rule 29.15 motion. Strong, at 646.
(Resp.'s Exh. F, PP.60-61, 73-76). Petitioner advanced
the claim on appeal of the denial of his Rule 29.15 motion,
and the Missouri Court of Appeals denied the claim as
In the course of selecting the jury, the State used its
peremptory strikes to remove three African American women
from the panel. Movant's trial counsel challenged those
strikes pursuant to Batson v.
Kentucky. The State then offered explanations for
why the strikes were race neutral. For each strike, the trial
court asked counsel if he had a response to the State's
explanation. The only response given by trial counsel
addressed the State's allegation that one of the reasons
it struck juror 912 was because she gave the prosecutors
antagonistic looks. Trial counsel stated he did not see the
juror “make…faces” at the prosecutors. The
State then identified a similarly-situated venireperson who
was also stricken because of her antagonistic attitude. The
trial court overruled Movant's three Batson
In his first point on appeal, Movant contends the motion
court clearly erred in denying his claim without an
evidentiary hearing in that trial counsel was ineffective for
failing to respond to the State's alleged Batson
violations during voir dire. Specifically, Movant argues his
counsel failed to challenge the State's race-neutral
reasons for its peremptory strikes of ...