United States District Court, E.D. Missouri, Eastern Division
RODNEY L. FOSTER, Petitioner,
JAY CASSADY, Respondent.
ORDER AND REPORT AND RECOMMENDATION
SHIRLEY PADMORE MENS AH UNITED STATES MAGISTRATE JUDGE.
case is before the undersigned on Petitioner Rodney
Foster's First Amended Petition for Habeas Corpus
Pursuant to 28 U.S.C. § 2254, filed through counsel.
(Doc. 53). This case was referred to the undersigned United
States Magistrate Judge for a report and recommendation
pursuant to 28 U.S.C. § 636(b). For the following
reasons, the undersigned recommends that the petition be
Factual and Procedural Background
2010, Petitioner was convicted of one count of robbery in the
first degree, one count of assault in the first degree, and
two counts of armed criminal action, and he was sentenced to
four terms of twenty-eight years' imprisonment, to run
concurrently. Resp't Ex. B, Doc. 10-2, at
68-72. Petitioner directly appealed his
convictions to the Missouri Court of Appeals, raising a
single claim: that the trial court erred in submitting
instructions to the venire panel and jury that violated the
Missouri Approved Instruction, MAI-CR 300.04, in that the
court instructed the jury about matters not referenced in the
instruction. Resp't Ex. C, Doc. 10-3, at 15. The Court of
Appeals affirmed Petitioner's convictions. Resp't Ex.
E, Doc. 10-5. Petitioner filed, through counsel, an amended
motion for postconviction relief under Missouri Supreme Court
Rule 29.15, asserting several claims. Resp't Ex. F, Doc.
10-6, at 10-22. After holding a hearing, the motion court
denied Petitioner's motion. Id. at 35-55.
Petitioner appealed, raising three claims: (1) ineffective
assistance of trial counsel based on trial counsel's
refusal to prepare Petitioner to testify at trial, which
forced Petitioner involuntarily waive his right to testify;
(2) ineffective assistance of trial counsel based on trial
counsel's failure to investigate the existence of a DVD
containing surveillance video from the scene of the crime;
and (3) ineffective assistance of trial counsel based on
trial counsel's failure to present critical mitigating
evidence during sentencing. Resp't Ex. H, Doc. 10-8, at
11-13. The Missouri Court of Appeals affirmed the motion
court's denial of the claims. Resp't Ex. J, Doc.
February 2, 2015, acting pro se, Petitioner filed a
petition for a writ of habeas corpus under 28 U.S.C.§
2254. (Doc. 1). On April 24, 2015, Respondent filed a
response. (Doc. 10). On August 26, 2016, Petitioner filed a
Reply. (Doc. 34). On April 6, 2017, Petitioner filed a motion
for leave to amend his petition, along with a proposed
amended petition including four proposed grounds for relief.
(Docs. 44 & 45). Following briefing on the motion for
leave to amend, on August 2, 2016, the undersigned entered a
report and recommendation recommending that the motion for
leave to amend be granted in part and denied in part. (Doc.
50). On August 25, 2017, the district court adopted the
undersigned's recommendation and ordered that Petitioner
could assert three grounds in the amended petition: (1)
actual innocence, (2) ineffective assistance of counsel based
on counsel's advice to Petitioner not to testify, and (3)
ineffective assistance of counsel based on failure to
investigate surveillance video of the crime scene. (Doc. 51).
On September 22, 2017, Petitioner filed his First Amended
Petition, in which he asserted those three grounds. (Doc 53).
On December 6, 2017, Respondent filed a response. (Doc. 57
& 58). On January 19, 2018, Petitioner filed a
Reply. (Doc. 61).
Standard for Reviewing Claims Adjudicated on the Merits in
habeas review exists only “as ‘a guard against
extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal.'” Woods v. Donald, 135 S.Ct. 1372,
1376 (2015) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). Accordingly,
“[i]n the habeas setting, a federal court is bound by
AEDPA [the 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) (citing 28 U.S.C. § 2254).
Under AEDPA, a federal court may not grant relief to a state
prisoner with respect to any claim that was adjudicated on
the merits in the state court proceedings unless the state
court's adjudication of a claim “(1) 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; or (2)
resulted in a decision that 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). A state court decision is “contrary to”
clearly established Supreme Court precedent “if the
state court arrives at a conclusion opposite to that reached
by [the United States Supreme] Court on a question of law or
if the state court decides a case differently than [the
United States Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000). A state court decision involves
an “unreasonable application” of clearly
established federal law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts
of a particular prisoner's case.” Id. at
407-08; see also Bell v. Cone, 535 U.S. 685, 694
(2002). “Finally, a state court decision involves an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it
is shown that the state court's presumptively correct
factual findings do not enjoy support in the record.”
Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.
2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39
(2006) (noting that state court factual findings are presumed
correct unless the habeas petitioner rebuts them through
clear and convincing evidence) (citing 28 U.S.C. §
preserve a claim for federal habeas review, a state prisoner
must present that claim to the state court and allow that
court the opportunity to address the claim. Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state
procedural rules, any claims not properly raised before the
state court are procedurally defaulted.” Id.
The federal habeas court will consider a procedurally
defaulted claim only “where the petitioner can
establish either cause for the default and actual prejudice,
or that the default will result in a fundamental miscarriage
of justice.” Id. (citing Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v.
Groose, 75 F.3d 408, 41 (8th Cir. 1996) (en banc)). To
demonstrate cause, a petitioner must show that “some
objective factor external to the defense impeded [the
petitioner's] efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To establish prejudice, a petitioner must
demonstrate that the claimed errors “worked to his
actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S. 152, 170 (1982).
Lastly, in order to assert the fundamental miscarriage of
justice exception, a petitioner must “‘present
new evidence that affirmatively demonstrates that he is
innocent of the crime for which he was convicted.'”
Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011)
(quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir.
Ground One: Actual Innocence
Ground One, Petitioner asserts that his “right to due
process of law under the Fifth and Fourteenth Amendments to
the United States Constitution was violated when the trial
court overruled his Motions for Judgment of Acquittal, failed
to grant his Motion for New Trial, and in entering his
judgment and sentence in that Petitioner is actually innocent
of the crimes charged.” 1stf Am. Pet'n, Doc. 53, at
4. In support of this claim, Petitioner asserts that his
trial, appellate, and post-conviction counsel “failed
to effectively present evidence through the testimony of
witnesses and cross examination and conduct investigation
that would have proved Petitioner's innocence.”
Id. Specifically, Petitioner alleges that although
he repeatedly informed his trial counsel at what residence he
had last seen the victim, and that although he informed trial
counsel regarding his alibi, trial counsel failed to
investigate the residence, failed to obtain cell phone or
other records to establish his whereabouts, and failed to
cross-examine the victim regarding his memory and other
undersigned previously noted in its report and recommendation
on Petitioner's motion for leave to amend, the nature of
the claim being asserted in Ground One is not entirely clear
from the First Amended Petition. Although the first sentence
of Ground One appears to indicate that it is an actual
innocence claim, the other assertions in Ground One, viewed
broadly, could relate to multiple claims, including actual
innocence, insufficiency of the evidence, ineffective
assistance of trial counsel, ineffective assistance of
appellate counsel, and/or ineffective assistance of
post-conviction counsel. However, in Petitioner's reply
to the response to the motion for leave to amend, and again
in Petitioner's reply to the response to the First
Amended Petition, both filed through counsel, Petitioner made
it clear that he is asserting a claim of actual innocence.
Thus, the undersigned will treat this as a claim asserting
first argues that Ground One should be denied as untimely
because it was filed outside the period specified in the
statute of limitations and does not relate back to the date
of the original petition. Respondent made the same argument
in opposing Petitioner's Motion for Leave to Amend, and
the undersigned analyzed that argument and rejected it,
finding that the claim in Ground One did relate back to the
original petition. The district court adopted the conclusions
of the undersigned. Thus, this issue has already been
resolved in Petitioner's favor, and Respondent's
argument is without merit.
undersigned next addresses the merits of this claim. In the
habeas context, a claim of “actual innocence” may
be either a “gateway claim, ” in which a
petitioner asserts his actual innocence as a way to overcome
procedural default of another claim, or a “freestanding
claim, ” in which a petitioner asserts his actual
innocence as an independent basis for habeas relief. See,
e.g., Hayes v. Bowersox, No. 4:12-CV-224- JMB,
2016 WL 659081, at *15 (E.D. Mo. Feb. 18, 2016) (discussing
both types of claims). It appears likely that Petitioner is
likely attempting to assert a freestanding claim rather than
a gateway claim. However, because he does not expressly state
which type of claim he is asserting and does not cite any
case law relevant to this claim, the undersigned considers
“gateway claim” of actual innocence, which has
long been recognized by the Supreme Court, permits a federal
habeas court to address the merits of procedurally defaulted
claims where a petitioner has proven that he is actually
innocent of the crime of which he was convicted. See
Schlup v. Delo, 513 U.S. 298, 324-28 (1995). See
also Nash v. Russell, 807 F.3d 892, 898-99 (8th Cir.
2015); Burton v. Dormire, 295 F.3d 839, 846 (8th
Cir. 2002). To establish a gateway claim of actual innocence,
“a petitioner must satisfy a two-part test.”
Nash, 807 F.3d at 899 (citing Amrine v.
Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001). First,
“the ‘allegations of constitutional error must be
supported with new reliable evidence not available at
trial.'” Id. (quoting Amrine, 238
F.3d at 1029). Second, the petitioner must show that
“it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence.”
Id. The Eighth Circuit has found that
“evidence is new only if it was not available at trial
and could not have been discovered earlier through the
exercise of due diligence.” Amrine, 238 F.3d
at 1029; accord Nash, 807 F.2d at 899; Kidd v.
Norman, 651 F.3d 947, 953 (8th Cir. 2011).
the gateway claim of actual innocence has long been
recognized, the Supreme Court has “not resolved whether
a prisoner may be entitled to habeas relief based on a
freestanding claim of actual innocence.” McQuiggins
v. Perkins, 569 U.S 383, 392 (2013) (citing Herrera
v. Collins, 506 U.S. 389, 404-05 (1993)). The Eighth
Circuit has recognized that “if the Supreme Court were
to grant relief on this type of claim, ‘the threshold .
. . would be extraordinarily high [and] would require more
convincing proof than the gateway standard.'”
Nash, 807 F.3d at 899 (quoting Dansby v.
Hobbs, 766 F.3d 809, 816 (8th Cir. 2014)). “[O]n a
freestanding claim of actual innocence, it is not sufficient
that a petitioner shows even that it is ‘more likely
than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.'”
Dansby, 766 F.3d at 816 (quoting Schlup,
513 U.S. at 327). “The ‘extraordinarily high'
threshold, if recognized, would be even higher.”
Id. (quoting House v. Bell, 547 U.S. 518,
555 (2006). See also Hayes, 2016 WL 659081, at *15
(“Because Hayes cannot meet the gateway standard of
actual innocence, he certainly cannot satisfy any possible
freestanding standard that might be applied to his
case.”); Johnson v. Kelley, No.
5:15-CV-00138-KGB-JTR, 2016 WL 10519110, at *9 (E.D. Ark.
Dec. 15, 2016) (“Johnson has failed to establish a
gateway actual innocence claim. A fortiori, his
freestanding actual innocence claim also fails.”),
report and recommendation adopted, 2017 WL 5180807
(E.D. Ark. Nov. 8, 2017).
has not alleged the facts necessary to establish either a
gateway claim of actual innocence or the more demanding
freestanding actual innocence claim (even assuming the latter
were recognized). Petitioner does not allege that he has
discovered any new evidence of his innocence, nor does he
allege that any of that evidence was not available at trial.
Although Petitioner alleges that his trial counsel should
have investigated “cellphone or other records to
establish Petitioner's whereabouts” and should have
investigated a residence where Petitioner had last seen the
victim, he does not allege that he has any of this evidence
now, that any of this evidence was not available at trial, or
that any of this evidence could not have been discovered
earlier through the exercise of due diligence. In addition,
although he asserts that his trial counsel should have
cross-examined the victim regarding the victim's memory
or other issues, he does not allege the existence of any
evidence that was not available at trial that would have
enabled such cross-examination. Petitioner also has not shown
that any of this evidence shows “that it is more likely
than not that no reasonable juror would have convicted
him” had such evidence been presented at trial. See
Schlup, 513 U.S. at 327. Thus, Petitioner cannot
establish actual innocence either as a gateway claim or a
freestanding claim, and the undersigned recommends that
Petitioner's actual innocence claim be denied.
Ground Two: Ineffective Assistance of Counsel-Petitioner'
Ground Two, Petitioner asserts that his trial counsel was
ineffective because his trial counsel encouraged Petitioner
not to testify at trial. Petitioner asserts that he was a
necessary witness in his own defense to show that he was not
in fact the assailant, that he wanted to testify in his own
defense, and that it was unreasonable to encourage him not to
testify. Petitioner also argues that if he had been permitted
to testify, the result in his case would have been different.
parties appear to presume that this claim was raised in state
court and denied on the merits. However, a review of the
record shows that the claim Petitioner raised in state court
was different from the one raised here-it was not a claim
that trial counsel made an unreasonable decision to encourage
Petitioner not to testify, but instead was a claim that trial
counsel failed and refused to prepare Petitioner to testify,
thereby forcing Petitioner to involuntarily waive his right
to testify and denying him his constitutional right to
testify on his own behalf. In the interest of clarity and
completeness, the undersigned will presume that Petitioner
intends to raise both claims here and will address each
Ground 2A: Ineffective Assistance of Trial Counsel-Refusal to
Prepare Petitioner to Testify and Consequent Denial of
Petitioner's Right to Testify
undersigned first considers the claim that Petitioner's
trial counsel was ineffective because he failed and refused
to prepare Petitioner to testify, thereby forcing Petitioner
to involuntarily waive his right to testify and denying him
his right to testify on his own behalf. This claim was raised
in Petitioner's motion for post-conviction relief and in
the appeal from the denial of that motion. See
Resp't Ex. F, Doc. 10-6, at 12, 14-15; Resp't Ex. H,
Doc. 10-8, at 14-17. The state courts considered that claim
and denied it on the merits. Resp't F, Doc. 10-6, at
41-42; Resp't Ex. J, Doc. 10-10, at 3-4.
criminal defendant has a federal constitutional right to
testify on his or her own behalf at his or her trial.
Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). The
defendant “has the ultimate authority to make certain
fundamental decisions regarding the case, [including] whether
to . . . testify in his or her own behalf.” Jones
v. Barnes, 463 U.S. 745, 751 (1983). “Because the
right to testify is a fundamental constitutional guarantee,
only the defendant is empowered to waive the right.”
United States v. Bernloehr, 833 F.2d 749, 751 (8th
Cir. 1987). A defendant's waiver of the right to testify
must be made voluntarily and knowingly. Frey v.
Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998). See