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Jones v. Steele

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

September 28, 2017

JEROME JONES, Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE

         This 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.

         On 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).

         Petitioner 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 for relief:

(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; and
(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.

         The Court will address the claims in turn.

         DISCUSSION

         I. Ground 1

         As 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 as follows:

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[1] 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 follows:

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.[2] 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 challenges….
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 ...

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