United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE.
matter is before 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
Missouri Court of Appeals summarized the evidence regarding
this case as follows:
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.)
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).
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.
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
(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.
supplements to his Â§ 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).
Standard of review
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).
courts may not grant habeas relief on a claim that has been
decided on the merits in State court unless that
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...