United States District Court, E.D. Missouri, Eastern Division
ROBERT T. CHILDS, Petitioner,
KENNY JONES and KAYLA LOCH, Respondents.
REPORT AND RECOMMENDATION
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the undersigned on Petitioner Robert
Childs' Petition for Writ of Habeas Corpus. [Doc. 1.]
Respondent filed a response. [Doc. 9.] This matter was
referred to the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1). [Doc. 5.] For the
reasons set forth below, the undersigned recommends that the
Petition be denied.
2010, a grand jury indicted Childs on a charge of Tampering
in the First Degree. The indictment charged Childs as a prior
and persistent offender, listing two prior felonies: Unlawful
Use of a Weapon- Carrying a Concealed Weapon (Cause
0922-CR-2192) and Unlawful Possession of a Weapon (Cause
0922-CR00692). Both of these guilty pleas were dated
September 30, 2009. No other convictions or guilty pleas were
listed in the indictment.
in the light most favorable to the verdict, the evidence
adduced at trial is as follows: On the morning of January 3,
2010, Jasmine Fisher was in her green 1997 Toyota Camry in
front of her home in the City of St. Louis. Fisher was
preparing to leave for work when she realized she left her
security badge in her house. Fisher went back into her home
for about thirty seconds, leaving the keys in the ignition.
When she returned outside, her car was missing. Fisher then
called the police and reported the car stolen.
7:00 p.m. and 8:00 p.m. that night, St. Louis Metropolitan
Police officers Stephen Walsh and Matthew Karnowski,
plainclothes officers with the Anti-Crime Task Force, were
working the 5000 block of Davison Avenue. The officers saw a
car matching the description on the department's
“hot sheet” of stolen cars. A check with the
dispatcher confirmed the car was still considered stolen. The
car appeared unoccupied, so the officers watched the car from
their unmarked vehicle, waiting to see if someone got in.
Although the officers never saw anyone get in the car, the
car suddenly drove off. The officers then followed the car
and made a radio call to put out a description of the car and
get help in apprehending it.
officers initially lost sight of the car, but again saw it
near Thrush and Lillian. Other Anti-Crime Task Force
detectives were at that location and attempted to deploy
spike strips to stop the car. The car came into contact with
the strips, but the strips failed to stop the car. Shortly
thereafter, the car stopped, a passenger got out, and the
driver continued on. At this point, the officers again lost
sight of the car.
Officer Alexander Vogelzang, a uniformed patrol officer in
the area, was stopped on an unrelated matter on Ferris
Avenue, a one way street, when he saw Fisher's vehicle
turn the wrong way onto Ferris. The car quickly drove
directly toward Officer Vogelzang. At that time Officer
Vogelzang identified Childs, whom he knew from numerous
encounters in the area, as the driver and sole occupant of
the car. Vogelzang witnessed Childs jump the car onto the
curb and drive through front yards of several houses along
Ferris Avenue to maneuver around Officer Vogelzang's
patrol car. Officer Vogelzang then made a radio call giving a
description of the vehicle. After that call, Officer Walsh
called Officer Vogelzang's cell phone to ask if he saw
the driver, and Vogelzang told him the driver was Childs.
Walsh and Karnowski later found the car in the 4300 block of
Darby. The car was parked and unoccupied, with the keys
inside. After the car was photographed and checked
(unsuccessfully) for fingerprints, the officers called Fisher
to come and pick up her car. When Fisher retrieved her car,
she noticed some clothing in the back seat that did not
belong to her, including a pair of pants. In the back pocket
of the pants, Fisher found an ID card with Child's name
and address on it. The next day, Childs was arrested at the
address on the ID card found in Fisher's car.
First Degree Tampering trial was held on January 24-25, 2011.
The jury returned a guilty verdict. The Court sentenced
Childs as a prior and persistent offender to ten years.
Childs is currently on parole. Childs filed a direct appeal
and a motion for post-conviction review, which were both
denied. Childs filed this action on December 19, 2014. [Doc.
Standard of Review
writ of habeas corpus stands as a safeguard against
imprisonment of those held in violation of the law. Judges
must be vigilant and independent in reviewing petitions for
the writ, a commitment that entails substantial judicial
resources.” Harrington v. Richter, 562 U.S.
86, 91 (2011). “In general, if a convicted state
criminal defendant can show a federal habeas court that his
conviction rests upon a violation of the Federal
Constitution, he may well obtain a writ of habeas corpus that
requires a new trial, a new sentence, or release.”
Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013). The
Anti-Terrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254 (AEDPA) applies to all petitions for
habeas relief filed by state prisoners after this
statute's effective date of April 24, 1996. Lindh v.
Murphy, 521 U.S. 320, 326-29 (1997). Childs is no longer
incarcerated, but is under the supervision of the Missouri
Department of Probation and Parole. A person currently
released on parole is in custody for purposes of § 2254.
See Jones v. Cunningham, 371 U.S. 236, 241-42 (1963)
(a person placed on parole is still in custody under an
conducting habeas review pursuant to 28 U.S.C. § 2254, a
federal court is limited to deciding whether a claim that was
adjudicated on the merits in state court proceedings (1)
resulted in a decision that is “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
at the State court proceedings.” 28 U.S.C. §
2254(d). A determination of a factual issue made by a state
court is presumed to be correct unless the petitioner
successfully rebuts the presumption of correctness by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
purposes of § 2254(d)(1), the phrase “clearly
established federal law refers to the holdings, as opposed to
the dicta, of [the Supreme] Court's decisions as of the
time of the relevant state court decision.” Lockyer
v. Andrade, 538 U.S. 63, 71-72 (2003). “In other
words, clearly established federal law under §
2254(d)(1) is the governing legal principle or principles set
forth by the Supreme Court at the time the state court
renders its decision.” Id. To obtain habeas
relief, a habeas petitioner must be able to point to the
Supreme Court precedent which he thinks the state courts
acted contrary to or unreasonably applied. Buchheit v.
Norris, 459 F.3d 849, 853 (8th Cir. 2006).
court's decision is “contrary to” clearly
established Supreme Court precedent “if the state court
either ‘applies a rule that contradicts the governing
law set forth in [Supreme Court] cases' or
‘confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and
nevertheless arrives at a result different from [the]
precedent.'” Penry v. Johnson, 532 U.S.
782, 792 (2001) (citing Williams v. Taylor, 529 U.S.
362, 405-406 (2000)).
court decision is an unreasonable application of clearly
established Supreme Court precedent if it correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case. Id. (citing Williams, 529 U.S. at
407-408). “A federal habeas court making the
unreasonable application inquiry should ask whether the state
court's application of clearly established federal law
was objectively reasonable.” Penry, 532 U.S.
at 793. “A state court decision involves ‘an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings, ' 28
U.S.C. § 2254(d)(2), only if it is shown that the state
court's presumptively correct factual findings do not
enjoy support in the record.” Evanstad v.
Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A
“readiness to attribute error is inconsistent with the
presumption that state courts know and follow the law.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
AEDPA's highly deferential standard demands that state
court decisions be given the benefit of the doubt.
brings five claims for review. First, he asserts that the
trial court erred by allowing a “non-fair” juror
to serve on the jury. Second, he asserts that the state
failed to properly plead and prove all of the prior felony
convictions. His remaining three grounds for relief allege
ineffective assistance of trial counsel. Childs asserts that
his trial attorney was ineffective for the following reasons:
(1) failing to file a motion for trial continuance, (2)
failing to obtain photographs to show that Officer
Vogelzang's testimony about him driving through yards on
Ferris Avenue was not truthful, and (3) failing to object to
the introduction of police reports at his sentencing.
the undersigned will address Childs' defaulted claims
regarding his status as a prior and persistent offender and
his claims regarding trial counsel's failure to seek a
continuance. A state prisoner seeking federal habeas relief
must first exhaust the remedies available in the courts of
the state, thereby affording those courts the first
opportunity to address and correct alleged violations of the
prisoner's federal rights. Walker v. Martin, 562
U.S. 307, 315 (2011).
Prior and Persistent Offender Status
did not preserve his claim that the state did not adequately
plead and prove his status as a prior and persistent
offender. The Eighth Circuit Court of Appeals has held that
“a federal habeas court cannot reach an otherwise
unpreserved and procedurally defaulted claim merely because a
reviewing state court analyzed that claim for plain
error.” Clark v. Bertsch, 780 F.3d 873, 874
(8th Cir. 2015) (citing Hayes v. Lockhart, 766 F.2d
1247, 1253 (8th Cir. 1985)). The Missouri Court of Appeals
noted that this claim was not properly preserved for review
and reviewed it for plain error. This court is barred from
reviewing Childs' claim if the state court finds that his
claim is defaulted under state law, even if the state court
reviewed his claim under plain error review. Hayes,
766 F.2d ...