United States District Court, E.D. Missouri, Eastern Division
JOHNNY D. SITTNER, Petitioner,
MICHAEL BOWERSOX, Respondent.
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
Johnny Sittner was convicted of statutory rape in the first
degree, statutory sodomy in the first degree, and two counts
of incest. The trial court sentenced Sittner to consecutive
life terms for statutory rape and statutory sodomy and to
consecutive terms of four years for the two counts of incest.
Sittner is incarcerated at the South Central Correctional
Center in Licking, Missouri.
matter is before the Court on his amended petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Sittner
raises twelve grounds for relief. For the reasons stated
below, Sittner's request for federal habeas corpus relief
will be denied.
direct appeal, the Missouri Court of Appeals summarized the
evidence adduced at trial as follows:
On 28-29 April 2009 Sittner was tried before the Honorable
Judge Kenneth Wayne Pratte of charges of first-degree
statutory rape, first-degree sodomy, and two counts of
incest. Prior to trial, a licensed clinical social worker at
the Children's Advocacy Center of East Central Missouri,
Dina Vitoux, performed an extended evaluation of victim S.S.
During this evaluation, S.S. communicated, with considerable
detail, the acts Sittner was alleged to have subjected her
Vitoux was called as a witness and the trial court recognized
her as a witness in the field of child sex abuse and forensic
counseling. Vitoux testified to what she and other experts
used to determine the accuracy of a child's disclosure.
She listed four factors, one of which was an unusual sexual
knowledge for their age. Over objection, Vitoux stated that
S.S. had such unusual knowledge. During a bench conference
prior to defense counsel's cross-examination of Vitoux,
defense counsel requested permission to ask Vitoux questions
regarding the other men who had abused S.S. in order to show
S.S. had an alternative source for her unusual sexual
knowledge. The State argued that this evidence was barred by
the rape shield statute, § 419.015. The court considered
both arguments and determined S.S.'s knowledge was not
overly emphasized, was not used in the State's opening
argument, and from that point forward in the trial that area
was “off limits.” Both the State and Defense
Sittner was convicted by a jury on all of the charges against
(Resp't Ex. 20 at 1-3).
appealed his conviction and sentence before the Missouri
Court of Appeals, arguing the trial court erred in not
allowing Sittner to introduce evidence that other individuals
had sexually abused the victim. Sittner alleged that, because
Dina Vitoux, a licensed clinical social worker, testified
about the significance of unusual sexual knowledge by child
sexual abuse victims in assessing the credibility of their
statements, the State had opened the door to evidence of
alternative sources of sexual knowledge. On September 29,
2009, the Missouri Court of Appeals, Eastern District
affirmed the conviction.
also filed a pro se motion for post-conviction relief
pursuant to Missouri Supreme Court Rule 29.15.
Post-conviction counsel was appointed. In Sittner's
amended post-conviction motion, he alleged that trial counsel
was ineffective for failing to object to Dina Vitoux's
testimony about the factors used to evaluate the accuracy of
a child victim's statements. Sittner further alleged
trial counsel was ineffective for not cross-examining Vitoux
about the source of S.S.'s unusual sexual knowledge. The
motion court denied Sittner's claims without an
appealed the denial of his motion for post-conviction relief.
In his sole point on appeal, Sittner alleged the motion court
erred in denying his claim that trial counsel was ineffective
for not objecting to the testimony by Vitoux. The Missouri
Court of Appeals denied relief in an unpublished opinion
dated November 23, 2010.
March 18, 2011, Sittner filed his first habeas petition in
the Circuit Court of Texas County, Missouri. The Circuit
Court denied this petition. On June 26, 2012, Sittner filed a
motion, and subsequently an amended motion, to re-open his
post-conviction case due to abandonment. Sittner's
amended motion alleged his post-conviction case should be
re-opened as his first post-conviction counsel failed to
include several grounds for relief in his first amended 29.15
motion. The motion court found Sittner did not allege a
recognized ground for reopening a post-conviction case and
denied Sittner relief without an evidentiary hearing; Sittner
appealed and the Missouri Court of Appeals affirmed the
judgment of the motion court.
then filed a second habeas petition in the Circuit Court of
Texas County, Missouri. He asserted five claims of
ineffective assistance of counsel. The Texas County court
found Sittner's claims were defaulted as they had not
been raised in his Rule 29.15 motion. The court then
addressed Sittner's claims ex gratia and found they were
without merit. Sittner also filed a third and fourth habeas
petition in the Missouri Court of Appeals, and the Missouri
Supreme Court, respectively. Both courts summarily denied
filed his original federal habeas petition in this case
asserting the following nine grounds for relief: 1) the trial
court violated Sittner's sixth amendment right to present
defensive evidence by excluding evidence of other individuals
who had abused S.S.; 2) the trial court erred in allowing
Dina Vitoux to testify about S.S.'s credibility; 3) trial
counsel was ineffective for failing to adequately object to
Vitoux's testimony; 4) trial counsel was ineffective for
not cross-examining Vitoux about the potential for other
sources of S.S.'s sexual knowledge; 5) trial counsel was
ineffective for not introducing evidence of S.S.'s
reputation for dishonesty; 6) trial counsel was ineffective
for not calling Sittner's wife, D.S., to testify about
S.S.'s reputation for dishonesty and problems with
discipline; 7) trial counsel was ineffective for not calling
J.S. as a witness; 8) appellate counsel was ineffective for
not raising a claim of plain error related to Vitoux's
testimony about S.S.'s credibility; and 9) appellate
counsel was ineffective for not raising a claim of error
related to social worker Jamie Pinson's testimony
regarding S.S.'s statements.
August 3, 2015, Sittner filed a motion to amend his petition
and a proposed amended petition. In his amended petition,
Sittner renewed the nine grounds set forth in his original
petition and added three new claims. The State contends the
additional grounds for relief alleged in the amended petition
are untimely and must be dismissed. Sittner does not contest
the State's argument and withdraws Grounds 10, 11, and
12. Sittner also withdraws ground seven. Therefore, I will
only consider Grounds 1-6, and 8-9.
response to the eight claims that remain, the State claims
Ground 2 and Grounds 4 through 9 are procedurally defaulted
and Sittner has failed to show cause to excuse his default.
The State further contends that although Grounds 1 and 3 were
properly exhausted, they must be denied on their merits.
habeas relief is available to a state prisoner “only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). See also Williams-Bey v.
Trickey, 894 F.2d 314, 317 (8th Cir. 1990).
order to obtain federal habeas review of a claim raised in a
§ 2254 petition, the petitioner must have first raised
the federal constitutional dimensions of the claim in State
court in accordance with State procedural rules. Duncan
v. Henry, 513 U.S. 364 (1995) (per curiam); Beaulieu
v. Minnesota, 583 F.3d 570, 573 (8th Cir. 2009) (quoting
Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.
1988)). If the petitioner failed to properly present the
claim in State court, and no adequate non-futile remedy is
currently available by which he may bring the claim in that
forum, the claim is deemed procedurally defaulted and cannot
be reviewed by the federal habeas court “unless the
[petitioner] can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991);
see also Martinez v. Ryan, 566 U.S. 1, 10-11 (2012).
the State court adjudicated a claim on the merits, federal
habeas relief can be granted on the claim only if the State
court adjudication “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, ” 28 U.S.C. §
2254(d)(1); or “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)(2). See Williams v. Taylor, 529 U.S. 362,
379 (2000). The federal law must be clearly established at
the time petitioner's State conviction became final, and
the source of doctrine for such law is limited to the United
States Supreme Court. Id. at 380-83.
court's decision is “contrary to” clearly
established Supreme Court precedent when it is opposite to
the Supreme Court's conclusion on a question of law or
different than the Supreme Court's conclusion on a set of
materially indistinguishable facts. Id. at 412-13;
Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001).
A State court's decision is an “unreasonable
application” of Supreme Court precedent if it
“identifies the correct governing legal principle from
[the Supreme Court's] decisions but unreasonably applies
that principle to the facts of the prisoner's
case.” Williams, 529 U.S. at 413. Merely
erroneous or incorrect application of clearly established
federal law does not suffice to support a grant of habeas
relief. Instead, the State court's application of the law
must be objectively unreasonable. Id. at 409-11;
Jackson v. Norris, 651 F.3d 923, 925 (8th Cir.
2011). Finally, when reviewing whether a State court decision
involves an “unreasonable determination of the
facts” in light of the evidence presented in the State
court proceedings, State court findings of basic, primary, or
historical facts are presumed correct unless the petitioner
rebuts the presumption with clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Rice v. Collins, 546 U.S.
333, 338-39 (2006); Collier v. Norris, 485 F.3d 415,
423 (8th Cir. 2007). Erroneous findings of fact do not
ipso facto ensure the grant of habeas relief,
however. Instead, the determination of these facts must be
unreasonable in light of the evidence of record.
Collier, 485 F.3d at 423; Weaver v.
Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001).
federal court is “bound by the AEDPA [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). To obtain habeas relief from a federal
court, the petitioner must show that the challenged State
court ruling “rested on ‘an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.'” Metrish v.
Lancaster, 133 S.Ct. 1781, 1786-87 (2013) (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).
This standard is difficult to meet. Id. at 1786.