United States District Court, E.D. Missouri, Eastern Division
D. NOCE UNITED STATES MAGISTRATE JUDGE.
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.
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.
PETITIONER'S ALLEGED GROUNDS FOR RELIEF
raises four grounds for relief, each comprised of several
(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
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).
EXHAUSTION OF REMEDIES AND PROCEDURAL BAR
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. 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.
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
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
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).
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.
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.
STANDARD OF REVIEW
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
(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;
(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).
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.
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.
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).
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.
Failure to Present Petitioner's Alibi and Advising Him
Not to Testify
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).
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.
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.
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.
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
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
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.
Failure to Investigate and Discredit Victim Larry
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.
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
A. Yes. I noticed he was wearing a different shirt.
Q. And what color was that shirt?
A. The shirt he was wearing was ...