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Ford v. Wallace

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

November 21, 2017

HAROLD R. FORD, III, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on state prisoner Harold R. Ford, Ill's action pursuant to 28 U.S.C. § 2254. This case was referred to United States Magistrate Judge David D. Noce for report and recommendation on all dispositive matters and for final disposition on all non-dispositive matters, pursuant to 28 U.S.C. § 636(b). Judge Noce issued a Report and Recommendation of Magistrate Judge dated May 23, 2017 (Doc. 30). Judge Noce recommended that Harold R. Ford's Petition for a Writ of Habeas Corpus (Doc. 11) be denied. Petitioner Ford filed timely Objections, arguing that the Court granted petitioner leave to add claims of actual innocence to his petition but then failed to consider these claims in its Report (Doc. 34). Petitioner did not object to any of Judge Noce's recommendations with respect to Grounds One through Six.

         This Court must conduct a de novo review of any portion of the Magistrate Judge's opinion to which specific objections are made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c); see also Fed. R. Civ. P. 72(b).

         The Court concurs in Judge Noce's detailed statement of the facts in this case and will repeat only relevant facts here. Based on de novo review and for the reasons set forth below, the Court adopts the Report and Recommendation in part and declines to adopt it in part.

         I. Background

         Petitioner's habeas claims are brought under 28 U.S.C. § 2254. (Doc. 11). Petitioner filed his first amended petition on May 15, 2015, alleging six grounds for habeas relief (Doc. 11). In November 2015, petitioner sought leave of Court to add a supplemental claim of actual innocence, describing the grounds for this claim as the failure of his post-conviction counsel to raise certain arguments in post-conviction proceedings. (Doc. 21). Judge Noce issued an Order on December 18, 2015, stating "that petitioner's motion to add a claim of actual innocence (Doc. 21), based upon the current record of this action is GRANTED." (Doc. 24). On August 29, 2016, petitioner filed a "Reply to Response to Order Show Cause, " which did not reply to Respondent's filing, but instead contained two new grounds for habeas relief, styled Grounds 7 and 8. (Doc. 29). These grounds are premised on facts and exhibits that were not in the record at the time of Judge Noce's December 18, 2015 Order. (Doc. 29).

         In Ground 7, petitioner alleges that he was denied effective assistance of counsel when the trial court denied his counsel's motion to continue the trial setting. (Doc. 29 at 6-17). His counsel sought a continuance in order to obtain cell phone records relevant to petitioner's defense, specifically the phone records of Shamica Brison, who testified that she witnessed the shooting petitioner was convicted of, and then reported the murder by calling 911. (Doc. 29 at 6). Petitioner alleges that the cell phone records show Ms. Brison did not call 911. Id. Petitioner claims that this allegation shows he is actually innocent of the murders, as it impeaches Ms. Brison's testimony and identification.

         In Ground 8, petitioner alleges a Brady violation on similar grounds. He claims he was denied a fair trial and due process of law because the prosecution knowingly used Ms. Brison's false testimony or knowingly failed to disclose to petitioner false testimony that was used to convict him. (Doc. 29 at 17).

         Judge Noce's Report and Recommendation addressed Grounds 7 and 8 in the following manner:

[O]n August 29, 2016, plaintiff raised two additional grounds, labeled "Ground 7" for ineffective assistance of counsel and "Ground 8" for another Brady violation, in his reply to respondent's response to the order to show cause. (ECF No. 29). This court did not grant petitioner leave to file these additional claims. They were, moreover, filed nearly a year out of time, with no explanation or mitigating argument; and they are therefore not cognizable.

         (Doc. 30 at 2-3).

         Petitioner raises three objections to the Report and Recommendation. (Doc. 34). First, petitioner argues that Judge Noce granted him leave to add a claim of actual innocence to the petition, and the Report and Recommendation is inconsistent with the Court's Order of December 18, 2015. (Doc. 34 at 1, 3). Second, petitioner argues that failure to consider his seventh and eighth grounds will result in a fundamental miscarriage of justice, because he made a showing based on new evidence that he is actually innocent. (Doc. 34 at 2). Third, petitioner argues that he provided several reasons to overcome any possible procedural default. (Doc. 34 at 3).

         II. Discussion

         "A document filed pro se is to be liberally construed." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). Although plaintiffs additional grounds were filed as a reply and not an amended or supplemental pleading, and although they rely on allegations and exhibits not in the record at the time of the December 18, 2015 Order allowing the filing of additional claims "upon the current record of this action, " on de novo review, the Court will liberally construe these grounds as permitted by court order and fully address them on the merits. See 28 U.S.C. § 2254(b)(2) (authorizing district courts to consider and dismiss procedurally barred grounds on the merits).

         A. Procedural Default

         State prisoners must exhaust their state law remedies before raising their claims in federal habeas corpus proceedings. 28 U.S.C. § 2254(b)(1)(A). A petitioner must have fairly presented the substance of each federal ground to state trial and appellate courts. See Anderson v. Harless, 459 U.S. 4, 6 (1982). Petitioner has not shown that he has raised Grounds 7 and 8 in any previous motion or filing in a Missouri state court; instead, he appears to have done so for the first time in this federal habeas proceeding. See Ford v. State, 448 S.W.3d 875 (Mo.Ct.App. 2014); State v. Ford, 351 S.W.3d 236, 236 (Mo.Ct.App. 2011). The Court's Order permitting petitioner to amend his petition does not mean that additional grounds raised are exempt from federal habeas law requirements. Any additional grounds must still comply with federal habeas procedure, and petitioner's Grounds 7 and 8 fail to do so, as he has not yet raised these claims in state courts.

         B. Actual ...


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