United States District Court, E.D. Missouri, Eastern Division
HAROLD R. FORD, III, Petitioner,
IAN WALLACE, Respondent.
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.
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.
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).
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.
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).
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.
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).
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.
30 at 2-3).
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).
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).
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.