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Irving v. Griffith

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

October 20, 2017

ANTWONE D. IRVING, Petitioner,
v.
CINDY GRIFFITH and JOSH HAWLEY, [1] Respondents.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE

         Petitioner Antwone D. Irving seeks federal habeas relief from a Missouri state court judgment entered after a jury trial. See 28 U.S.C. § 2254. As part of his request for relief, Petitioner asks for discovery and an evidentiary hearing. For the reasons set forth below, the Court denies Petitioner's requests for discovery and an evidentiary hearing, and denies the petition.[2]

         I. Background

         Charges and pretrial proceedings

         The State charged Petitioner by indictment with committing first-degree burglary (Count I) and forcible sodomy involving a minor (“Victim”) (Count II).[3] Prior to trial, the trial court scheduled a hearing to determine the admissibility of statements made by the minor victim and her minor brother to their mother, a nurse, a Children's Advocacy Center (“CAC”) employee, and two police detectives.[4] After the two-day hearing, [5] the trial court granted the “State's request to allow the statements into evidence with the understanding that the [minor victim] and her brother will testify in person.”[6]

         Shortly before trial the State filed a superseding indictment charging Petitioner with committing (1) one count of first-degree burglary of an inhabitable structure for the purpose of committing forcible sodomy on a person younger than twelve years old and while a person not participating in the crime was in the structure (Count I); (2) two counts of forcible sodomy for having deviate sexual intercourse with a child less than twelve years old, “by placing his hand on” her vagina (Count II) and “by placing his hand on” her anus (Count IV) by use of forcible compulsion; and (3) two alternative counts of first-degree statutory sodomy for the same conduct alleged in Counts II and IV without the allegation of “use of forcible compulsion” (Counts III and V).[7] Less than a week before trial began, the State filed an information in lieu of indictment charging Petitioner with committing on May 4, 2008, the same five offenses charged in the superseding indictment, plus a sixth count charging Petitioner as a prior and persistent offender.[8]

         Finally, on the first day of trial, the State filed an amended information in lieu of indictment deleting reference to “the victim less than twelve years of age” in Count I and substituting “penetrating [Victim]'s anus with his finger” for “placing his hand on” Victim's anus in Counts IV and V.[9] After discussing the amended information with the parties at the start of the second day of trial, the trial court allowed the amendment over Petitioner's objection.[10]

         Before submitting the case to the jury, the State nolle prossed the alternative first-degree statutory sodomy counts and the remaining counts were re-numbered.[11] The remaining three counts, which were submitted to the jury, were first-degree burglary (Count I), forcible sodomy involving Victim's vagina (Count II), and forcible sodomy involving Petitioner's penetration of Victim's anus with his finger (Count III).[12]

         Trial[13]

         The trial court admitted during trial a number of the State's exhibits, including a DVD recording of Victim's interview by a CAC employee, which was played for the jury, [14] and an anatomical drawing of a female that Victim used during her CAC interview.[15] The State also presented Victim's testimony[16] and the testimony of several adult witnesses to whom Victim disclosed Petitioner's physical conduct toward Victim within ten days after the incident.[17]

         Victim testified that Petitioner walked inside her home without invitation and, while sitting and holding her tight with his legs around her hips, “feeled on [her] hiney” or “on [her] behind” with his hand.[18] Victim stated she did not remember what Petitioner was doing when he touched her bottom.[19]

         Victim's mother testified to statements Victim made in response to her questions as they went to the hospital after the incident.[20] Specifically, Victim told her mother Petitioner “had touched her” “on her bottom, ” and “he had stuck his finger up her butt” and then “he smelled it after he touched her.”[21]

         Cara Schuermann, a nurse at the hospital, testified that she spoke with Victim the day of the incident.[22] Schuermann stated that Victim told her Petitioner “touched her in the private area and put his finger in her butt.”[23]

         Megan Marietta, a CAC forensic interviewer, interviewed Victim, then six years old, and her brother, then seven years old, separately at the CAC approximately ten days after the incident.[24] During her CAC interview, Victim circled the representation of buttocks on the back view of the anatomical drawing of a female and named that area the “behind.”[25] According to Marietta, Victim “demonstrated” to Marietta during the interview that Petitioner inserted “two fingers into her private part and into her behind.”[26]

         Petitioner did not testify and rested without presenting evidence.[27] Petitioner unsuccessfully moved for judgment of acquittal at the close of the State's evidence and at the close of all the evidence.[28]

         The trial court instructed the jury on each of the three counts: first-degree burglary (Count I), forcible sodomy involving Victim's vagina (Count II), and forcible sodomy involving Victim's anus (Count III), and provided lesser included offense instructions for each count.[29] In relevant part, the instruction for the forcible sodomy offense charged in Count III required the jury to find, beyond a reasonable doubt, that Petitioner “penetrated [Victim]'s anus with his finger” and the conduct constituted “deviate sexual intercourse, ” which the instruction defined.[30]The jury found Petitioner guilty of first-degree burglary and both forcible sodomy offenses.[31]

         Petitioner filed a motion for acquittal or, in the alternative, for a new trial (“motion for new trial”).[32] Before sentencing Petitioner, the trial court denied Petitioner's motion for new trial, including his request for an evidentiary hearing.[33] The trial court imposed a five-year term of imprisonment for the first-degree burglary conviction to run consecutive to the concurrent life without the possibility of parole sentence imposed for each of the two forcible sodomy convictions.[34]

         Direct Appeal

         In his timely direct appeal, Petitioner presented two points.[35] First, Petitioner argued the trial court violated his right to due process under the Fourteenth Amendment by allowing during trial and over Petitioner's objection, a change in one of the forcible sodomy charges through the amendment of the information to charge penetration, rather than contact, with Victim's anus.[36]

         In his second point, Petitioner contended the trial court violated his Fourteenth Amendment right to due process by sentencing Petitioner to life without the possibility of parole, rather than life without parole for thirty years, for each of the forcible sodomy offenses.[37] The Missouri Court of Appeals affirmed the judgment.[38]

         Post-Conviction Motion Proceeding

         Following his direct appeal, Petitioner timely filed a pro se motion for post-conviction relief (“PCR motion”) presenting five claims of ineffective assistance of trial counsel, one claim of trial court error, two claims that his counsel on direct appeal provided ineffective assistance, and one claim that cumulatively all the alleged errors violated Petitioner's constitutional rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.[39] Through appointed counsel, Petitioner filed an amended PCR motion, including a request for an evidentiary hearing.[40] In his amended PCR motion, Petitioner set forth one claim, that his attorney on direct appeal provided ineffective assistance of counsel in violation of the Sixth Amendment and violated Petitioner's Fourteenth Amendment right to due process and a fair trial by not pursuing on appeal an argument that “the state did not establish beyond a reasonable doubt that [Petitioner]'s finger penetrated [Victim's] anus.”[41] The motion court denied Petitioner's request for an evidentiary hearing[42] and concluded Petitioner was not entitled to post-conviction relief.[43]

         Post-Conviction Appeal

         Petitioner presented one point in his timely post-conviction appeal.[44] In affirming the motion court's judgment, the Missouri Court of Appeals summarized Petitioner's point on appeal:

[Petitioner] argues the motion court clearly erred in denying his post-conviction motion because he was denied his rights to due process of law, access to the courts, and to effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution . . . in that appellate counsel was ineffective for failing to assert error in the trial court's denial of [Petitioner]'s motions for judgment of acquittal at the close of the State's evidence and at the close of all of the evidence on Count III for forcible sodomy on the basis that the State failed to present evidence establishing that [Petitioner]'s finger penetrated Victim's anus.[45]

(Footnote added.) The Court of Appeals discussed both the required elements of a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) and relevant Missouri cases; and the required statutory elements of forcible sodomy.[46] In analyzing the sufficiency of the evidence, the Court of Appeals viewed the evidence in the light most favorable to the verdict.[47] The Court of Appeals concluded:

At trial, Victim testified that [Petitioner] “feeled on my hiney and my private parts” with his hand. Victim was six years old at the time of the attack and eight years old at the time of trial. Several witnesses testified Victim had told them that [Petitioner] touched her in, and not on, the anus. [Victim's mother] testified she asked Victim where [Petitioner] had touched her on her bottom and “[Victim] said that he had stuck his finger up her butt.” Schuermann . . . testified Victim told her [Petitioner] had “touched her in the private area and put his finger in her butt.” Marietta, a [CAC] interviewer, testified Victim demonstrated the incident, indicating [Petitioner] ha[d] placed “two fingers into her private part and into her behind.” Marietta testified that Victim demonstrated during the interview that she knew the meaning of “in.”
The jury was instructed to find [Petitioner] guilty on Count III if the State had established beyond a reasonable doubt that [Petitioner] had “penetrated [Victim's] anus with his finger.” The jury found [Petitioner] guilty of forcible sodomy under Count III.[48]

(Footnote added.)

         The Court of Appeals determined that Petitioner failed to demonstrate either prong required to establish the ineffective assistance of counsel because:

[t]he State presented overwhelming evidence from which a reasonable juror could find that [Petitioner] committed forcible sodomy by penetrating Victim's anus with his finger by the use of forcible compulsion and for the purpose of arousing or gratifying his sexual desire. As such, any challenge to the sufficiency of the evidence on appeal would have been without merit.[49]

(Footnote added.) Therefore, Petitioner's appellate attorney acted as a reasonably competent attorney by raising other issues on direct appeal and, because the sufficiency of the evidence challenge lacked merit, Petitioner failed to demonstrate the result of the proceeding would have been different if the attorney had pursued the issue on direct appeal.[50]

         II. Petitioner's Ground for Federal Habeas Relief

         In his timely federal habeas petition, Petitioner seeks relief based on violations of his Fifth, Sixth, and Fourteenth Amendment rights due to his appellate counsel's ineffective assistance in failing to challenge the sufficiency of the evidence underlying the forcible sodomy conviction in Count III.[51] Specifically, Petitioner argues the State did not establish beyond a reasonable doubt the element of penetration of Victim's anus in that Victim testified Petitioner touched “on her hiney” or “behind, ” and counsel's failure to raise the issue on appeal prejudiced him.

         Respondents counter that other witnesses' testimony provided sufficient evidence of penetration and the appellate attorney's failure to raise a meritless issue on appeal did not prejudice Petitioner and did not constitute ineffective assistance under Strickland.[52] Respondents assert the Court of Appeals' decision that Petitioner's appellate counsel provided effective assistance is a correct and reasonable application of clearly established federal law. Additionally, Respondents contend the Court of Appeals' decision is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

         III. Discussion

         A. Le ...


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