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Moore v. Lewis

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

March 5, 2018

MONTRELL MOORE, Petitioner,
v.
JASON LEWIS, et al., [1] Respondent.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Petition of Montrell Moore for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Petition is fully briefed and ready for disposition.

         I. Procedural History

         Petitioner Montrell Moore is currently incarcerated at the Southeast Correctional Center ("SECC") pursuant to the judgment and sentence of the Circuit Court of St. Louis City, Missouri. (Resp't's Ex. 3 pp. 95-100) On August 11, 2010, a jury found Petitioner guilty of second-degree murder, abuse of a child resulting in death, endangering the welfare of a child in the first degree, possession of a controlled substance, possession of marijuana under 35 grams, and possession of drug paraphernalia. (Resp't's Ex. 6 p. 1; Resp't's Ex. 3 pp. 7, 83-88) On September 10, 2010, the court sentenced him to consecutive terms of life imprisonment on the murder and child abuse resulting in death convictions; consecutive terms of 7 years' imprisonment on the endangering the welfare of a child and possession of a controlled substance counts; and concurrent one year terms of imprisonment on the marijuana and drug paraphernalia counts. (Resp't's Ex. 3 pp. 95-100) Petitioner filed a direct appeal, and on December 13, 2011, the Missouri Court of Appeals affirmed the judgment of the trial court. (Resp't's Ex. 6) Petitioner then filed Motions to Vacate, Set Aside, or Correct Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp't's Ex. 10 pp. 29-33, 41-48) Appointed counsel filed an amended Rule 29.15 motion on July 16, 2012. (Id. at pp. 50-72) On May 14, 2013, the motion court denied Petitioner's motion for post-conviction relief. (Id. at pp. 79-86) On May 13, 2014, the Missouri Court of Appeals affirmed the judgment of the motion court. (Resp't's Ex. 13) On December 15, 2014, Petitioner filed the present petition for habeas relief in federal court.

         II. Factual Background[2]

         In June of 2009, Petitioner was living with his girlfriend, L.C., and her two children, S.B. and R.W., ages 2 and 9 respectively. On June 26, 2009, L.C. gave S.B. a bath and then took him downstairs around 11:00 p.m. where he slept on a sectional couch. During the night, L.C. heard S.B. whining so she went downstairs to check on him. Petitioner was in the kitchen and told L.C. that nothing was wrong with S.B. During the night, S.B. awoke and was fussy and loud. In the morning, L.C. woke up around 4:30 a.m. to get ready for work. She tucked in S.B., told him to go back to sleep, and left for work around 5:00 a.m. L.C.'s fifteen-year-old sister, T.C., was staying there to help with S.B. She slept on the opposite end of the couch from S.B. and awakened to knocks at the door from paramedics. Around 8:00 a.m., Petitioner called L.C. to inform her that S.B. had been taken to the emergency room because his face was peeling. Petitioner said that he found S.B. drinking a cleaning fluid. When S.B. arrived at the hospital, S.B. was not breathing and was in complete cardiopulmonary arrest. The ER physician found a burn on S.B.'s face that was consistent with scalding from a very hot liquid and found no indication that S.B. had ingested a chemical cleaning fluid. The doctor also found a bruise on S.B.'s face and large bruises in the shape of hand prints, finger prints, and fist marks along S.B.'s rib cage.

         When the hospital workers informed Petitioner that S.B. could not be resuscitated, Petitioner started hitting the walls and apologizing. When L.C. arrived at the hospital, S.B. had already passed away. L.C. hit Petitioner and asked what he did to her son. Petitioner again apologized. However, he provided inconsistent stories as to how S.B. was injured. He finally admitted that he struck S.B. several times with his hand, and he wrote an apology letter to L.C. from jail. The medical examiner found extensive injuries on S.B., including a blunt force injury on his forehead, broken ribs on both sides, punctured lungs, bruising on his heart, a tear in the liver, and a lacerated spleen and kidney. Cause of death was ruled as abdominal blunt force trauma. Moore v. State, 431 S.W.3d 15, 17-18 (Mo.Ct.App. 2014).

         III. Petitioner's Claims

         In his Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, Petitioner raises six claims for federal habeas relief. Petitioner argues in Ground One that the trial court erred in not striking juror 837 for cause because the juror was biased. In Ground Two, Petitioner asserts that the trial court erred in allowing witness testimony regarding prior child abuse of S.B. because it improperly showed a propensity for child abuse. Ground Three alleges that the trial court erred by admitting autopsy photos. In Ground Four, Petitioner contends that the trial court erred in denying Petitioner's motion for a new trial because the charges of second degree murder and abuse of a child resulting in death violated the ban on double jeopardy. Petitioner asserts in Ground Five that trial counsel was ineffective for failing to call a potential witness, Tayrean Smith. Finally, in Ground Six, Petitioner contends that trial counsel was ineffective for failing to present theory that S.B.'s injuries were caused by someone else.

         IV. Legal Standards

         Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus . .. only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, a federal court may not grant habeas relief unless the claim adjudicated on the merits in state court '"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.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. § 2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual findings presumed to be correct where fairly supported by the record).

         "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With regard to the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Bucklew v. Luebbers 436 F.3d 1010, 1016 (8th Cir. 2006); Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.

         To preserve a claim for federal habeas review, a petitioner must present the claim to the state court and allow that court the opportunity to address petitioner's claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation omitted). "Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted." Id. A federal court will consider a defaulted habeas 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.

         V. Discussion

         In the instant case, Respondent concedes that Petitioner timely filed his petition and properly raised his claims in state court. Thus, Petitioner's claims are exhausted and are not procedurally barred from federal review.

         A. Ground One

         Petitioner argues in ground one that the trial court erred in not striking juror 837 for cause because the juror was biased. Specifically, Petitioner contends that the juror repeatedly made statements during voir dire that demonstrated bias against Petitioner, depriving him of a fair trial. Petitioner raised this ground on direct appeal. The Missouri Court of Appeals addressed Petitioner's claim and found that the trial court did not abuse its discretion in failing to strike the venireperson for cause. (Resp't's Ex. 6 p. 8) The Moore court extensively quoted the voir dire transcript, wherein the juror indicated that she and three female cousins had been abused by an uncle. (Id. at pp. 4-8) She stated that she would have difficulty listening to the evidence due to her experience as a mother and the fact that a minor was involved. (Id. at pp. 5-6) However, the juror also stated that her experience would not affect her ability to listen to the evidence and be fair to both sides. (Id. at pp. 5-7) The Missouri Court of Appeals addressed Petitioner's claim that the trial court erred in failing to strike the venireperson because she demonstrated an inability to remain impartial and found:

Here, venireperson Raymond consistently stated that she would be able to be fair to both sides and listen to all the evidence before reaching a decision. Nevertheless, Moore claims that the trial court had a duty to independently examine venireperson Raymond. However, "the court only has a duty to make an independent inquiry when the [venireperson] is equivocal about [her] ability to be fair and impartial." Garvey, 328 S.W.3d at 415. After reviewing the context of the entire examination of venireperson Raymond, we fail to find she equivocated about her ability to be fair and impartial. Although her answers indicated that she may find the trial hard to handle and emotionally difficult, she continuously gave assurance that she would be impartial and base her decision on the evidence presented. Accordingly, the trial court did not abuse its discretion in failing to strike venireperson Raymond for cause. Point one is denied.

(Id. at pp. 7-8)

         "The issue of an individual juror's partiality is a question of 'historical fact' for the trial court, and is entitled to 'special deference.'" Reynolds v. Russell, No. 4:14 CV 1060 CDP, 2015 WL 7273322, at *4 (E.D. Mo. Nov. 18, 2015) (quoting Patton v. Yount, 467 U.S. 1025, 1036, 138 (1984)). '"Under 28 U.S.C. § 2254(d), a habeas court must, of course, afford this determination the presumption of correctness due a state court's factual findings.'" Id. (quoting Logan v. Lockhart, 994 F.2d 1324, 1326-27 (8th Cir. 1993)). '"The question for this court, then, is whether the state court's conclusion that the juror would be impartial is fairly supported by the record.'" Id. (quoting Logan, 994 F.2d at 1327). Petitioner has the burden of showing "with clear and convincing evidence . . . that the state court incorrectly resolved the factual issue of [Petitioner's] bias." McFarland v. Wallace, No. 4:12CV290 RWS, 2015 WL 1347001, at *25 (E.D. Mo. Mar. 19, 2015).

         Here, the state court found that Plaintiff was unequivocal in stating that she could remain fair and impartial and would base her decision on the evidence presented. (Resp't's Ex. 6 pp. 7-8) Because Petitioner has not presented clear and convincing evidence to the contrary, the Court "must accept the state court's factual finding that [Ms. Raymond] was not actually biased." Sanders v. Norris,529 F.3d 787, 791 (8th Cir. 2008) (citing 28 U.S.C. ...


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