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Sittner v. Bowersox

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

November 17, 2017

JOHNNY D. SITTNER, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         This 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.

         Factual Background

         On 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 to.
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 Counsel complied.
Sittner was convicted by a jury on all of the charges against him.

(Resp't Ex. 20 at 1-3).

         Procedural History

         Sittner 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.

         Sittner 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 evidentiary hearing.

         Sittner 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.

         On 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.

         Sittner 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 relief.

         Grounds Raised

         Sittner 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.

         On 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.

         In 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.

         Standard of Review

         Federal 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).

         In 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).

         Where 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.

         A State 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).

         The 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.

         Claims ...


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