Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Foster v. Cassady

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

February 5, 2018

RODNEY L. FOSTER, Petitioner,
v.
JAY CASSADY, Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          SHIRLEY PADMORE MENS AH UNITED STATES MAGISTRATE JUDGE.

         This 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 denied.

         I. Factual and Procedural Background

         In 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.[1] 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. 10-10.

         On 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).[2] On January 19, 2018, Petitioner filed a Reply. (Doc. 61).

         II. Legal Standards

         A. Standard for Reviewing Claims Adjudicated on the Merits in State Court

         Federal 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. § 2254(e)(1)).

         B. Procedural Default

         To 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. 2006)).

         III. Discussion

         A. Ground One: Actual Innocence

         In 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 issues. Id.

         As the 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 actual innocence.[3]

         Respondent 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.

         The 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 both possibilities.

         A “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).

         Although 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).

         Petitioner 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.

         B. Ground Two: Ineffective Assistance of Counsel-Petitioner' Trial Testimony

         In 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.

         Both 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 separately.

         1. Ground 2A: Ineffective Assistance of Trial Counsel-Refusal to Prepare Petitioner to Testify and Consequent Denial of Petitioner's Right to Testify

         The 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.

         A 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.