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Childs v. Jones

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

January 2, 2018

ROBERT T. CHILDS, Petitioner,
v.
KENNY JONES and KAYLA LOCH[1], Respondents.

          REPORT AND RECOMMENDATION

          NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Background

         In 2010, a grand jury indicted Childs on a charge of Tampering in the First Degree.[2] 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.

         Viewed 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.

         Between 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.

         The 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.

         Meanwhile, 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.

         Officers 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.

         Childs' 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. 1.]

         II. Standard of Review

         “The 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 unexpired sentence).

         In 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).

         For 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).

         A state 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)).

         A state 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. Id.

         III. Discussion

         Childs 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.

         A. Defaulted Grounds

         First, 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).

         1. Prior and Persistent Offender Status

         Childs 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 ...


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