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Bice v. Lewis

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

February 20, 2018

GARY BICE, Petitioner,
v.
JASON LEWIS, Respondent.

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE.

         This matter is before[1] the Court on Petitioner Gary Bice's pro se Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody (Doc. No. 1). Respondent filed a response (Doc. No. 13). On June 29, 2015, Bice filed a pro se “motion for retrial” and “motion to oppress [sic] statements” (Doc. Nos. 17, 18), which the Court construed as supplements to his ' 2254 petition (Doc. No. 19). Respondent filed a response to Bice's supplemental claims on September 8, 2015 (Doc. No. 22). Because this Court has determined that Bice's claims are inadequate on their face and the record affirmatively refutes the factual assertions upon which his claims are based, the Court decides this matter without an evidentiary hearing.[2]

         I. Background

         The Missouri Court of Appeals summarized the evidence regarding this case as follows:[3]

L.U. (“Child”) was born in 2000, and she was about seven years old when she met Defendant. In 2009, Child moved with her mother to live with Defendant and Defendant's girlfriend in Cape Girardeau. Child spent a lot of time with Defendant while her mother was at work. Before she moved to Defendant's residence, Defendant had reached beneath her clothes and touched her on her bottom.
After Child began living with Defendant, he reached beneath her clothes and touched her “boobs” with his hands. Defendant also touched Child's “pee-pee” under her clothes with his tongue on one occasion and touched it with his hands “[a] bunch of times.” On one occasion, Defendant put his fingers inside her “pee-pee.” Defendant bought her toys and candy and told her that if she kept her “mouth shut he would keep buying them.” Before Defendant would touch her, he would tell her to “take off [her] shorts and put on a long T -shirt.” One day when she was in the car with her mother going to McDonalds, she told her that Defendant was touching her. Mother then “went straight to the police.”

(Respondent's Exhibit E at 3.) On May 18, 2011, a Stoddard County jury found Bice guilty of three counts of statutory sodomy in the first degree involving a child less than twelve years old. The trial court accepted the jury's verdicts and sentenced Bice as a prior and persistent offender to three concurrent 28-year terms of imprisonment. (Respondent's Exhibit D at 11.)

         Bice filed a direct appeal contending the trial court abused its discretion in denying his motion for a mistrial when a detective testified that he had offered Bice a polygraph test. Bice argued the detective's testimony created “a risk that jurors assumed” Bice either took the offered test and the results were against him, or that Bice refused to take the test because he knew he was guilty. The Missouri Court of Appeals for the Eastern District, finding no abuse of discretion, affirmed Bice's convictions and sentence. State v. Bice, No. S.D. 31458 (Mo. App. S.D. June 14, 2012).

         Bice filed a timely Rule 29.15 motion for post-conviction relief, claiming his trial counsel was ineffective for (i) failing to investigate and seek a suppression hearing challenging the voluntariness of his statements and confession to police because his mental illness made it impossible for him to knowingly waive his right to remain silent; and (ii) failing to present expert testimony and documentary evidence at trial in support of his claim that his confession was not voluntary. The motion court denied the motion without an evidentiary hearing. (Respondent's Exhibit F at 14-46). The Missouri Court of Appeals for the Eastern District affirmed the circuit court's denial of the motion. Bice v. State, No. S.D. 33051 (Mo. App. S.D. Oct. 31, 2014).

         On March 4, 2015, Bice filed the instant ' 2254 petition in which he raises the following four grounds:

(1) trial counsel was ineffective for not allowing Bice to testify and for “lack of skill in handling [his] mental condition”;
(2) trial counsel was ineffective for failing to challenge the prosecutor's decision to withdraw his offer for Bice to take a lie detector test;
(3) trial counsel was ineffective for failing to withdraw Bice's statement as involuntary; and
(4) police did not inform Bice of his Miranda rights at the time of his arrest.

         In his supplements to his § 2254 petition, Bice claims he is entitled to a retrial because his trial counsel prevented him from taking a lie detector test and from testifying on his own behalf (Doc. No. 18). He also claims his statement to the police was involuntary and that his trial counsel was ineffective for failing to suppress evidence of this statement at trial (Doc. No. 17).

         II. Standard of review

         Pursuant to 28 U.S.C. § 2254, a district court “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[I]n a § 2254 habeas corpus proceeding, a federal court's review of alleged due process violations stemming from a state court conviction is narrow.” Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995).

         Federal courts may not grant habeas relief on a claim that has been decided on the merits in State court unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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