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Turner v. Bowersox

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

March 5, 2018

ANTONIO TURNER, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the pro se petition of Missouri state prisoner Antonio Turner, filed on January 15, 2015, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 6, 2010, following a two-day trial, a jury convicted Petitioner of first degree robbery and armed criminal action related to an incident on March 9, 2008. He was sentenced on May 14, 2010, to concurrent terms of 20 years for the robbery and three years for the armed criminal action. Petitioner's convictions and sentences were affirmed on direct appeal. Petitioner's motion for state post-conviction relief was denied following an evidentiary hearing, and this denial was affirmed on appeal.

         For federal habeas relief, Petitioner claims that his constitutional rights were violated in the following ways: (1) the oral sentence did not conform to the written sentence; (2) there was insufficient evidence to support the convictions; (3) defense counsel was ineffective for failing to secure the testimony of a correctional officer (Charles Boon) who escorted Petitioner to a lineup; (4) defense counsel was ineffective for failing to object to the prosecutor's comments during closing argument comparing Petitioner to a used car salesman and stating that the jury should not find Petitioner credible in light of his five prior felony convictions; and (5) defense counsel was ineffective for failing to object to the prosecutor's comments in closing argument suggesting that Petitioner's gun was loaded when there was no evidence that it was, and according to Petitioner, it was not.

         Respondent argues that habeas relief should be denied because Petitioner's first claim was procedurally defaulted, and, in any event, the state courts' adjudication of that claim and all remaining claims was legally and factually reasonable.[1] For the reasons set forth below, habeas relief will be denied.

         BACKGROUND

         Indictment and Trial

         Petitioner was charged by indictment with the crimes of conviction, as well as with being a prior and persistent offender, having pled guilty in 2005 to possession of a controlled substance, and in 1996 to two counts of first-degree robbery and two counts of armed criminal action. At trial, Mohammad Bhatti testified that on the evening of March 9, 2008, he was working on a house he owned in the City of St. Louis. At about 8:00 p.m., when he was putting tools in his truck parked in front of the house, a man he did not know walked up and began talking with him. Bhatti testified that the man stood close to him and he could see his face clearly, and further, that the street lights were working at the time. After asking him how he was doing, the man displayed a rifle from under his coat, pointed it at Bhatti, and demanded all of his money. Bhatti reached into his pocket, pulled out his wallet, and pushed it toward the man. At that point, police offers appeared on the scene and the man ran away. The encounter with the man had lasted two to three minutes. Bhatti testified that the robber was a little taller than himself. Bhatti then identified Petitioner, who is African American, in the courtroom as the perpetrator. He testified that at the end of April 2008, he also identified Petitioner in a live lineup.

         On cross-examination, defense counsel attempted to weaken Bhatti's identification of Petitioner, pointing out that at 8:00 p.m. in the beginning of March it would have been dark outside, that Petitioner was 5' 10', whereas Bhatti was only 5' 5”, and that Bhatti told the police at the scene that the robber had a medium build, not a big build. Bhatti testified on redirect examination that he would never forget the face of the man who robbed him.

         Police Officer Stephen Slama testified that at the time of the crimes, he was driving in the neighborhood in an unmarked minivan with his partner, looking for a certain individual. As he drove down the street in question, he saw an Asian male talking to a black male whose face Slama saw. Slama then saw the Asian male retrieve his wallet from his pocket and push it toward the black male. Slama testified that he thought a drug transaction was occurring and parked the van, at which point the black male's back was toward him. He heard the black male yell, “Give me your money or I'll kill you, ” and saw him grab the victim's wallet. Slama exited the van and announced “police, ” at which point the black male immediately fled. Slama identified Petitioner as the black male. Slama began chasing Petitioner, who had dropped a rifle as he fled. He testified that Petitioner did not appear to have a limp or have any trouble running. Slama did not have a radio or bullet-proof vest and so stopped chasing Petitioner. Slama testified that after he had exited his vehicle, he saw Petitioner's face for several seconds. He testified that it was dusk, but there were streetlights and he saw Bhatti and Petitioner clearly.

         Slama testified that he radioed in a description of the robber as 5' 10” to 5' 11”, 25 to 30 years old, medium complected, and stocky, wearing a puffy coat. A few weeks later, while Slama was at the city jail for an unrelated matter, he saw Petitioner and recognized him at the person who had robbed Bhatti. The prosecutor showed Slama a photo of the live lineup that had been conducted in connection with the robbery and Slama identified the photo of Petitioner as the perpetrator. On cross-examination, Slama acknowledged that he had described the robber as weighing 185 pounds, in addition to being stocky.

         Police Detective Robert Skaggs testified that on April 28, 2008, he interviewed Petitioner about the Bhatti robbery, after reading Petitioner his constitutional rights. Initially, Petitioner denied involvement, but after Skaggs told Petitioner that police had information connecting him to the robbery, Petitioner said, “All right. You got me. Yeah, I did the robbery. You can't - you won't be able to pin it on me.” Skaggs testified that he then put Petitioner in a live lineup and Bhatti identified him immediately without any doubt or hesitation. When Skaggs told Petitioner that he was picked out of the lineup and asked him if he wanted to talk about that, Petitioner said, “No, I guess I'm going back to jail.”

         The only witness for the defense was Petitioner. He testified that he had prior convictions for two counts of first-degree robbery, two counts of armed criminal action, and one count of “possession.” He denied committing the crimes of conviction and making the statements to Skaggs noted above. Petitioner testified that he was 5' 10' and weighed approximately 225 pounds at the time of the robbery. Petitioner testified that he did not remember where he was at the time of the robbery, and that for the past 11 years or so he had trouble with his left knee and could not run, and always limped. The trial transcript indicates that as Petitioner left the stand, he showed the jury his swollen left ankle, and limped back to his seat. The state presented, as a rebuttal witness, the deputy sheriff who had accompanied Petitioner to and from the courtroom multiple times during the trial. He testified that, prior to seeing Petitioner limp as he left the stand, he had never observed him limping or having any problems at all getting around. Defense counsel admitted into evidence medical records from 2000 to 2005 showing that Petitioner had a movable “knot” in his left knee that caused him pain and range of motion problems.[2]

         During closing argument, the prosecutor stated as follows:

What's the thing a person in that situation has to be most concerned with? That the person holding that gun stays calm. Stays happy. Right? Because the one thing you don't want to see in that situation is that person suddenly looking really pissed off or really angry. Because then the last thing Mr. Bhatti would have heard would have been the sound of the gunshot. So he was focused.

         ECF No. 8-1 at 73. Defense counsel objected that this was “clearly improper argument, total and complete speculation, ” ECF No. 81 at 72, and the objection was overruled. Defense counsel did not object to the prosecutor's comments in closing argument comparing Petition to a used car salesman and stating that the jury should not find Petitioner credible in light of his five prior felony convictions. In his own closing argument, defense counsel argued that the State had not proved beyond a reasonable doubt that Petitioner was the perpetrator. During deliberations, the jury asked for Petitioner's medical records and they were provided to the jury.

         After the case was submitted to the jury, the State presented evidence that Petitioner had pled guilty in 2005 to possession of a controlled substance, as charged in the indictment. The Court made a finding beyond a reasonable doubt that Petitioner was a prior offender subject to court sentencing. As noted above, the jury found Petitioner guilty of first-degree robbery and armed criminal action. No jury punishment phase was held; rather, the trial court sentenced Petitioner on May 14, 2010. In pronouncing the sentence in court, the trial court did not state that Petitioner was ...


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