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Hunter v. Russell

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

March 23, 2018

MARTEZ HUNTER, Petitioner,
v.
TERRY RUSSELL, Respondent.

          MEMORANDUM

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court upon the amended petition of Missouri state prisoner Martez Hunter, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.

         I. BACKGROUND

         Petitioner Hunter was accused of committing a series of armed robberies and carjackings in the City of St. Louis between June 8 and June 9, 2009. (Doc. 18-5 at 2). On July 23, 2010, a jury in the Circuit Court of the City of St. Louis convicted him of twelve counts of first-degree robbery, thirteen counts of armed criminal action, and one count of attempted robbery. On September 9, 2010, the trial court sentenced petitioner to concurrent terms of thirty years imprisonment for each robbery, thirty years for each armed criminal action, and fifteen years for the attempted robbery. Petitioner subsequently filed a direct appeal, moved for post-conviction relief, and appealed the denial of his post-conviction relief. He filed the instant petition for a writ of habeas corpus in this Court on March 19, 2015.

         II. PETITIONER'S ALLEGED GROUNDS FOR RELIEF

         Petitioner raises four grounds for relief, each comprised of several parts:

(1) Petitioner's trial counsel rendered constitutionally ineffective assistance by failing to present petitioner's alibi and advising him not to testify at trial; failing to investigate and discredit victim Larry Bradley's testimony; and failing to call petitioner's girlfriend at the time, Shontay Grissom, as a witness.
(2) The trial court erred in denying petitioner's motion to suppress, admitting testimony and exhibits regarding in-court and out-of-court identifications, and admitting testimony regarding petitioner's statements to police.
(3) The trial court erred in admitting certain photographic evidence; allowing the state to use a police report to refresh the testimony of a witness, over petitioner's objection; admitting testimony of Demarco Moorehead regarding items stolen from Larry Belcarist, over petitioner's objection; and overruling petitioner's objections to the state's closing argument.
(4) The trial court erred in sustaining the state's objection to defense counsel's argument that the state had not shown petitioner acted alone in the armed criminal action counts and by permitting extensive argument by the state that it need not prove petitioner actually used a weapon to convict him as a principal for armed criminal action.

(Doc. 1).

         Respondent contends that the arguments in Ground 1 are procedurally barred, and that one that was addressed by the state courts was not decided contrary to established federal law; Grounds 2 and 3 are procedurally barred and are meritless; and Ground 4 must be denied because the decision of the Missouri Court of Appeals denying it was not contrary to or an unreasonable application of clearly established federal law. (Doc. 18).

         III. EXHAUSTION OF REMEDIES AND PROCEDURAL BAR

         Although petitioner filed his original and amended habeas petitions in this court within the one-year limitations period, Congress requires that state prisoners exhaust their state law remedies for such grounds.[1] See 28 U.S.C. § 2254(b)(1)(A). A state prisoner has not exhausted his remedies “if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).

         It is not sufficient for a petitioner simply to have no remaining procedure for bringing a claim to the state court. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). Rather, a petitioner must have fairly presented the substance of each federal ground to the trial and appellate courts. Id. To preserve issues for federal habeas review, a state prisoner must fairly present his grounds for federal habeas relief first to state courts during direct appeal or during post-conviction proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1996). “If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default”. Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)).

         A petitioner may overcome the procedural bar if he can demonstrate legally sufficient cause for the default and actual prejudice resulting from it, or demonstrate that failure to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To establish cause for a procedural default, petitioner must “show that some objective factor external to the defense impeded” his “efforts to comply with the State's procedural rule.” Id. at 753. To establish actual prejudice, petitioner “must show that the errors of which he complains worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (internal citations omitted).

         As discussed above, petitioner filed a direct appeal, a motion for post-conviction relief, and an appeal of the denial of his motion for post-conviction relief. Petitioner raised Ground 4 on direct appeal and the Ground 1 sub-argument about calling Ms. Grissom as a witness in his motion for post-conviction relief and subsequent appeal. Hunter v. State, 453 S.W.3d 865, 866 (Mo.Ct.App. 2015); State v. Hunter, 368 S.W.3d 189 (Mo.Ct.App. 2012).

         Petitioner has not shown that he exhausted his remedies regarding the remainder of Ground 1, Ground 2, or Ground 3 in Missouri state court proceedings. He argues he did not do so because he was firmly relying on the points that were raised for relief, based on his own belief and on the advice of counsel and because he was unaware of any opportunity to raise additional claims at that stage (Doc. 1 at 8, 21, 22, 30) and because his attorney failed to discover and raise these issues. (Doc. 1 at 8, 21, 22, 30; Doc. 27 at 2). Petitioner argues that there is a reasonable probability he would have prevailed on appeal had his attorney raised these issues. (Doc. 27 at 2). As discussed below, this argument is without merit. Petitioner has not presented any legally sufficient reason why he failed to raise these grounds in state court, nor has he demonstrated actual prejudice arising from the default or that this court's failure to consider these grounds would result in a miscarriage of justice. Accordingly, petitioner's Grounds 1-3, with the exception of his argument as to Ms. Grissom, are procedurally barred.

         Nevertheless, if this court concludes that the procedurally barred grounds are without merit, Congress has authorized it to consider them and to dismiss them. 28 U.S.C. § 2254(b)(2). The undersigned has considered all of petitioner's federal grounds and concludes that they are without merit.

         IV. STANDARD OF REVIEW

         For petitioner's Grounds 4 and part of 1, which were adjudicated by a Missouri court, the Antiterrorism and Effective Death Penalty Act (AEDPA) requires that habeas relief may not be granted by a federal court on a claim that has been decided on the merits by a 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 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)(1)-(2).

         A state court's decision is contrary to clearly established federal law if it “arrives at a conclusion opposite to that reached by [the] Court on a question of law or . . . decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Thaler v. Haynes, 130 S.Ct. 1171, 1174 (2010) (per curiam) (citations omitted). This standard is difficult to meet, because habeas corpus “is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (citation omitted). A state court's decision involves an “unreasonable application” of clearly established federal law if “the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Thaler, 130 S.Ct. at 1174.

         A state court's factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1); Wood v. Allen, 130 S.Ct. 841, 845 (2010). Review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). Clear and convincing evidence that factual findings lack evidentiary support is required to grant habeas relief. 28 U.S.C. § 2254(e)(1); Wood, 130 S.Ct. at 845.

         For the remainder of petitioner's Grounds, which were not adjudicated on the merits by a state court, the pre-AEDPA standard for habeas review governs. Gingras v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008) (“Because [petitioner's] apparently unexhausted claim was not adjudicated on the merits, we likely should apply the pre-AEDPA standard of review, rather than the deferential standard of 28 U.S.C. § 2254(d).”) (internal citations and quotations omitted). Under the pre-AEDPA standard, the habeas petitioner must show a “reasonable probability that the error complained of affected the outcome of the trial, or that the verdict likely would have been different absent the now-challenged [defect].” Robinson v. Crist, 278 F.3d 862, 865-66 (8th Cir. 2002).

         V. DISCUSSION

         A. Ground 1

         In Ground 1, petitioner alleges that his trial counsel rendered constitutionally ineffective assistance by failing to present his alibi and advising him not to testify at trial; failing to investigate and discredit victim Larry Bradley's testimony; and failing to call petitioner's girlfriend at the time, Shontay Grissom, as a witness.

         1. Failure to Present Petitioner's Alibi and Advising Him Not to Testify

         Petitioner argues that his alibi was never presented and that he felt pressured to make a rushed decision not to testify. Petitioner does not describe what his alibi or testimony would have been, and the only details provided about his discussion with counsel on the issue of his testifying are that it occurred immediately after the presentation of the state's evidence under pressured circumstances, that “petitioner was provoked by counsel not to testify, ” and that defense counsel “used acting with another as a defense[, ] neglecting petitioner's witness, alibi and testimony as a defense [] trial strategy.” (Docs. 1 at 9; 27 at 3).

         In Strickland v. Washington, the Supreme Court determined that the right to effective assistance of counsel arises from the Sixth and Fourteenth Amendments. 466 U.S. 668 (1984). Under Strickland, a petitioner is entitled to federal habeas corpus relief upon a showing that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686.

         Petitioner must prove two elements to prevail on a claim of ineffective assistance of counsel. First, he must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. There is a strong presumption that counsel has rendered constitutionally effective assistance. Id. at 690. Counsel's strategic choices made after thorough investigation are virtually unchallengeable. Strickland, 466 U.S. at 690-91. Additionally, decisions following reasonable, but less thorough, investigation are to be upheld to the extent that they are supported by reasonable judgment. Id.

         Second, petitioner must demonstrate actual prejudice by counsel's deficient performance. Id. at 687. “[A] court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Id. at 696.

         A criminal defendant has a constitutional right to testify on his own behalf, and only the defendant is empowered to waive that right. Rock v. Arkansas, 483 U.S. 44, 49-62 (1987); Francis v. Miller, 557 F.3d 894, 903-04 (8th Cir. 2009).

         At the close of the state's evidence, the trial court questioned petitioner regarding his decision not to testify in his own defense. (Doc. 18-1 at 243-45). Petitioner stated under oath that after discussing the issue with trial counsel he had decided not to testify. Id. He stated that his attorney had explained to him his right to testify and that he understood both this right and the fact that the decision to testify was his alone to make. Id. Petitioner also stated he understood that if he decided not to testify, the court would instruct the jury not to draw a negative inference from this. Id. At sentencing, petitioner again stated that he had discussed his right to testify with his attorney and had decided against testifying based on this discussion. Id.

         Petitioner has not alleged any facts that contradict his sworn testimony in the state court. He has not demonstrated that his attorney was incompetent, nor has he demonstrated that had his attorney presented his alibi, the verdict would have been different. He has also not demonstrated that his decision not to testify affected the outcome of the trial. Accordingly, this claim is denied.

         2. Failure to Investigate and Discredit Victim Larry Bradley's Testimony

         Petitioner argues that his counsel was incompetent in failing to investigate and discredit victim Larry Bradley's testimony. Petitioner alleges that at deposition, Bradley testified he had seen three suspects occupying a car as it approached his truck to rob him. The rear passenger was wearing a white t-shirt and brandishing a chrome handgun. Petitioner alleges that once the police apprehended possible suspects, Bradley was brought to the scene to make identification. Bradley identified one person wearing a plain gray t-shirt, which he believed to be an item in his gym bag that had been stolen, which petitioner alleges Bradley identified by a kitchen stain. Petitioner argues that had the t-shirt been presented to the jury they would have seen no stain. Petitioner alleges this would have discredited Bradley's testimony. Id. He argues that counsel's failure to do so fell below the standard of reasonably effective assistance required by the constitution.

         In his direct examination at trial, Bradley testified that he was robbed at gunpoint by three individuals, identifying one of them as petitioner. (Doc. 18-1 at 149-56). His testimony about the shirt is as follows:

Q. Was there something different about what he was wearing when you saw him on the street that night at the arrest location?
A. Yes. I noticed he was wearing a different shirt.
Q. And what color was that shirt?
A. The shirt he was wearing was ...

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