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Ivory v. Cassady

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

April 16, 2018

CHRISTOPHER JAMES IVORY, Petitioner,
v.
JAY CASSADY and JOSH HAWLEY, [[1]]Respondents.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         Petitioner Christopher James Ivory seeks federal habeas relief from a Missouri state court judgment entered after a jury trial.[[2]] See 28 U.S.C. § 2254. With respect to ground 4, Petitioner requests an evidentiary hearing and a “Federal Public Defender.”[[3]] Additionally, Petitioner moves for a Certificate of Appealability (“COA”) with respect to each of four grounds for relief [ECF Nos. 45, 46, 47, 48, and 49]. See 28 U.S.C. § 2253(c)(1). Finally, if the Court grants habeas relief because there is insufficient evidence of the attempted forcible rape (ground 2), Petitioner asks the Court to credit his sentence for the kidnapping offense (Count 2) with the time he has served on the attempted forcible rape offense (Count 1) [ECF No. 50]. Respondents filed a response to the petition, along with exhibits consisting of copies of materials from the underlying state court proceedings (except for the sentencing hearing transcript which Petitioner provided with the filing of his petition).[[4]] Respondents did not respond to: Petitioner's requests for an evidentiary hearing and a “Federal Public Defender” with respect to ground 4, grounds 32 and 33, Petitioner's motions for COAs, and Petitioner's request for credit on his kidnapping sentence.

         After careful consideration, the Court denies the petition because, of the thirty-one grounds for relief before the Court, twenty-six grounds are procedurally barred and may not be considered on their merits, one ground (ground 8) is not cognizable or moot, and the other four grounds (grounds 2, 26, 32, and 33) lack merit. The Court also denies Petitioner's request for an evidentiary hearing and a “Federal Public Defender” with respect to ground 4. Finally, the Court will not issue any COA and, because habeas relief is not granted with respect to ground 2, Petitioner's request for credit on his kidnapping sentence is denied.

         I. Background

         Trial court proceedings

         The State of Missouri charged Petitioner, as a prior offender, [[5]] with committing attempted forcible rape in violation of Missouri Revised Statutes Section 566.030 (Count 1), kidnapping in violation of Missouri Revised Statutes Section 565.110 (Count 2), and second-degree robbery in violation of Missouri Revised Statutes Section 569.030 (Count 3).[[6]] With respect to the attempted forcible rape charge in Count 1, the State specifically alleged Petitioner “demanded [Victim] pull down her pants and then tried to unfasten [Victim's pants] when she refused and straddled her . . . for the purpose of committing . . . forcible rape.”[[7]] For the kidnapping charge in Count 2, the State charged Petitioner with “unlawfully confin[ing Victim] without her consent for a substantial period, for the purpose of terrorizing [Victim].”[[8]] With regard to the second-degree robbery charge in Count 3, the State charged Petitioner with “forcibly st[ealing] a purse in the possession of” Victim.[[9]]

         In August 2010, after obtaining an evaluation of Petitioner's competency to stand trial and finding Petitioner fit to proceed, [[1]] the trial court held a hearing, [[1]] obtained a waiver of counsel signed by Petitioner, and granted Petitioner's motion to represent himself, appointing stand-by counsel for Petitioner “over objection.”[[1]] In appointing an assistant public defender as stand-by counsel for Petitioner, the trial court stated stand-by counsel was appointed “to consult with [Petitioner] during trial only but not to actively participate in the trial.”[[1]]

         Before voir dire began for the November 2010 trial, the parties stipulated that Petitioner had a prior felony conviction, and the trial court concluded “therefore the jury does not have punishment” to decide.[[1]] In response to Petitioner's motion in limine and the trial court's inquiry, the prosecutor advised Petitioner and the trial court that she did not plan to bring up any prior bad act issues, so, unless “the door's opened, ” the prosecutor was not going to introduce or mention prior arrests, prior charges, or prior trials.[[1]] The trial court asked the prosecutor to “approach the bench first before” she brought such information up if she thought she needed to introduce it, and she agreed to do so.[[1]]

         The trial court also considered the parties' pretrial motions, including Petitioner's renewed motion to dismiss for speedy trial violations, which the State opposed and the trial court denied.[[1]] Additionally, the trial court questioned Petitioner about his pro se status.[[1]] In allowing Petitioner to proceed with trial pro se, the trial court concluded that Petitioner fully understood what he was doing by proceeding pro se, had “plenty of time to think about it, ” had received a full hearing in August 2010, had signed a waiver, and had received a “full explanation” about how the trial court would proceed.[[1]]

         During trial, the State presented the testimony of (1) Victim (identified in this case as D.C., who was fifteen years old at the time of the incident)[[2]] (2) two witnesses who heard Victim's screams that someone call the police and who placed the call to 911 (Shamona Burch and Shamira Burch), [[2]] (3) two officers with the St. Louis Metropolitan Police Department (“SLMPD”) who investigated after the SLMPD received the 911 call (Officer Ryan Barone, who spoke with Victim and investigated at the scene, and Officer Reginald Jones, who looked for Petitioner after Officer Barone sent out Petitioner's name and picture), [[2]] and (4), in rebuttal, Erin Duke, a biologist[[2]] with the SLMPD crime lab who tested a blue polo shirt found near the scene of the crime.[[2]] Petitioner testified on his own behalf.[[2]] In addition to presenting testimony, both parties introduced exhibits into evidence, including the blue polo shirt[[2]] and a recording of the 911 call, which was played for the jury after the parties stipulated it was the recording of the 911 call “made in connection with this case.”[[2]]

         The trial court instructed the jury with respect to the charged offenses, as well as stealing from a person, a lesser-included offense for second-degree robbery, which was suggested by Petitioner and not opposed by the State.[[2]] The jury found Petitioner guilty of attempted forcible rape, second-degree robbery, and stealing from a person.[[2]] The trial court denied Petitioner's post-trial motions, including Petitioner's motion for a new trial and motion for acquittal, [[3]] and sentenced Petitioner to consecutive terms of imprisonment of thirty years for attempted forcible rape, fifteen years for kidnapping, and seven years for robbery -- stealing from a person.[[3]]

         Direct appeal

         Petitioner was represented by an attorney in the direct appeal. Petitioner presented four points on appeal.[[3]] First, Petitioner argued the trial court plainly erred by accepting Petitioner's waiver of counsel and permitting him to proceed pro se without first ascertaining whether Petitioner was competent to represent himself after Petitioner demonstrated fundamental misunderstanding about the conduct of a trial.[[3]] Petitioner argued that this error violated his rights to due process and the effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. Second, Petitioner contended there was insufficient evidence to support the attempted forcible rape conviction. He argued that the State did not establish the elements of the crime beyond a reasonable doubt, specifically whether he made a substantial step toward raping Victim or had the purpose to rape Victim.[[3]] He argued that this lack of evidence violated his due process right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments. Third, Petitioner argued that the trial court violated his rights to equal protection, due process, and a fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments by refusing to give the jury his lesser included offense instruction for false imprisonment. According to Petitioner, the kidnapping offense in Count 2 included all the legal and factual elements of false imprisonment; alternatively, the jury may have disbelieved that he had a purpose of terrorizing Victim.[[3]] Fourth and Finally, Petitioner asserted the trial court should not have allowed the prosecutor to comment on, question Petitioner about, or present arguments about Petitioner's invocation of his right to represent himself, which incriminated and attacked Petitioner's character.[[3]] Petitioner argued that by allowing these actions, the trial court plainly erred and violated his rights to due process and to act as his own attorney as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.

         The Missouri Court of Appeals for the Eastern District affirmed the trial court's judgment in an unpublished per curiam order accompanied by a memorandum sent to the parties only setting forth the reasons for the order affirming the judgment. See State v. Ivory, No. ED96414 (Mo.Ct.App. Sept. 18, 2012). In its decision, the Missouri Court of Appeals addressed the merits of points two and three, and reviewed Petitioner's first and fourth points together for plain error and on their merits. Id. The Court of Appeals issued its mandate on November 15, 2012, after the Missouri Supreme Court denied Petitioner's application for transfer.[[3]]

         Post-conviction proceedings

         Petitioner filed a pro se motion for post-conviction relief (“PCR”) in 22nd Judicial Circuit Court for St. Louis City setting forth more than fifty claims for relief and a request for an evidentiary hearing.[[3]] Through appointed counsel, Petitioner filed an amended PCR motion, asserting two claims additional to all claims presented by Petitioner in his pro se PCR motion, as well as a request for an evidentiary hearing.[[3]] Without conducting a hearing, the motion court denied Petitioner's amended motion, specifically addressing each claim in the amended motion, including each claim presented in Petitioner's pro se PCR motion.[[4]]

         Post-conviction appeal

         Through counsel, Petitioner pursued two points in his post-conviction appeal.[[4]] First, petitioner challenged the motion court's denial of his ineffective assistance of counsel claim. Petitioner alleged his direct appeal attorney failed to raise a claim that the trial court erred when it overruled his objections to the State's questioning of him on the witness stand. According to Petitioner, the State forced “him to speculate about why all of the witnesses put this case on him, ” and the prosecutor “call[ed] him a monster.” In summary, he argued that (1) this line of questioning was speculative and argumentative; (2) the trial court erred in overruling his objections to these questions; (3) his direct appeal attorney failed to raise a claim that the trial court erred; and (4) this failure violated his rights to the effective assistance of counsel, to due process, and to access to the courts under the Fifth, Sixth, and Fourteenth Amendments.[[4]]

         Second, Petitioner challenged the motion court's denial of his prosecutorial misconduct claim. Specifically, Petitioner contended that the prosecutor “improperly asked [him] to comment on credibility of witnesses, ” and that such questions were “argumentative [and] forced him to speculate about the witnesses, invaded the province of the jury, and served no probative value.”[[4]] He argues that the questions therefore violated his rights to due process, the effective assistance of counsel and a fair trial under the Fifth, Sixth, and Fourteenth Amendments.

         The Missouri Court of Appeals for the Eastern District affirmed the motion court's judgment. Ivory v. State, No. ED99916, (Mo.Ct.App. Feb. 11, 2014). In its opinion, the court addressed both points on their merits and concluded Petitioner should have pursued his prosecutorial misconduct claim on direct appeal. The Court of Appeals issued its mandate on March 6, 2014. Id. at 9-10.

         Petitioner then filed his pending habeas petition.

         II. Grounds for Relief

         Petitioner sets forth thirty-three grounds for relief in his habeas petition. The Court dismissed two unexhausted grounds (grounds ten and thirty), [[4]] leaving thirty-one grounds before the Court. In his thirty-one grounds for relief, Petitioner asserts:

1.) The substitute information in lieu of indictment charging Petitioner with attempted forcible rape (Count 1) was fatally defective in that it did not (a) include forcible compulsion or a substantial step toward forcible rape, (b) mention the attempt statute, the character of the force used, and what acts by which the Petitioner did not have the consent of Victim, or (c) state that Petitioner acted knowingly. The trial court therefore allegedly lacked jurisdiction and violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
2.) There was insufficient evidence to support the attempted forcible rape conviction because (a) Victim “never stated [Petitioner] straddled her” and (b) Victim testified during cross-examination that (i) Petitioner did not “undo her pants button, her pants never went below her waistline [and] her underwear was never exposed, ” (ii) “none of her clothes were torn, ripped, or came off, ” (iii) Petitioner “never touched her . . . vaginal[], breast, or anal area” (iv) Petitioner's “penis was never exposed, [and Petitioner] never pulled his pants down” and (v) Victim did not tell Petitioner her age. The trial court therefore allegedly violated his due process rights.
3.) The attempted forcible rape verdict director (Instruction No. 5) was fatally defective because it did not state that (a) Petitioner acted knowingly, (b) Petitioner acted without Victim's consent or when Victim refused, (c) Petitioner made a substantial step, (d) a correct definition of forcible rape, or (e) that there was forcible compulsion. The trial court therefore allegedly violated his Fifth and Sixth Amendment rights.
4.) The State knowingly used perjured testimony, in violation of Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments, “by calling a fake witness to testify” as Victim.[[4]]
5.) The trial court violated his Fifth and Sixth Amendment rights, as well as his right to due process, by (a) denying his motions to dismiss for speedy trial violations, (b) failing to make his renewed motion to dismiss for speedy trial part of the legal file, and (c) failing to bring him to court for, or giving him the opportunity to respond to, requests for continuance.
6.) The kidnapping charge in the substitute information was fatally defective in that it did not mention that Petitioner either used forcible compulsion or acted knowingly. The trial court therefore allegedly lacked jurisdiction, and violated his rights under the Fourth, Fifth, and Sixth Amendments.
7.) The evidence was insufficient to support the kidnapping conviction, in violation of his due process rights, because (a) the kidnapping occurred at the same time and place as the attempted forcible rape and kidnapping cannot be merely incidental to another offense, and (b) there was no evidence that Petitioner confined Victim for a substantial period for the purpose of terrorizing her.
8.) There was no probable cause to support the kidnapping charge because the probable cause statement[[4]] (a) indicated that Petitioner removed Victim from one place to another, (b) did not mention either confinement without consent “nor terrorizing, ” and (c) did not mention how Petitioner “allegedly terrorized” Victim. The trial court therefore allegedly lacked jurisdiction and violated his Fourth, Fifth, Sixth, and Fourteenth Amendments rights.
9.) The trial court's sentences are “disproportional to the offenses” and the trial court did not state on the record its reasons for either imposing the sentence or deviating from the presentence recommendation, [[4]] in violation of Petitioner's rights to due process and to be free from cruel and unusual punishment.
10.) This ground for relief is dismissed.
11.) The trial court violated Petitioner's right to due process in violation of the Fifth, Sixth, and Fourteenth Amendments by sentencing Petitioner under Mo. Rev. Stat. Section 556.061. That statutory provision was allegedly not in the “charging instruments” and the trial court did not explicitly limit its application to the kidnapping conviction.[[4]]
12.) The trial court violated the constitutional prohibition against double jeopardy, as protected by the Fifth and Fourteenth Amendments, by convicting Petitioner of and sentencing him for both the attempted forcible rape and the kidnapping offenses. The State wrongly relied on the alleged forcible compulsion and lack of consent to support conviction, although neither element were in the attempted forcible rape charge. The evidence allegedly showed the kidnapping, which “was based solely on confinement and terrorizing, ” was incidental to the attempted forcible rape.
13.) The trial court violated the constitutional prohibition against double jeopardy, as protected by the Fifth Amendment, by convicting him of and sentencing him for both kidnapping and stealing from a person. The evidence demonstrates the latter offense “involves some kind of brief restraint or confinement and terror which was incidental to another offense.” 14.) The trial court violated Petitioner's right to due process by providing the jury with verdict forms submitted by the State only, and no verdict forms submitted by Petitioner, who states he “never submitted verdict forms.” 15.) The trial court violated Petitioner's right to due process because the verdict was read by the court clerk “confusingly and [in a] misleading [manner]” and, although polled, the jurors “may have been confused as to what they agreed to.” 16.) The trial court violated Petitioner's right to due process by denying Petitioner's post-trial motion and petition to confirm the verdict.
17.) The trial court's sentence violated Petitioner's right to due process because the trial court did not enter on the judgment a “charge code” for stealing from a person (Count 3).
18.) The trial court's sentence violated Petitioner's right to due process because, although the trial court found Petitioner was a prior offender (and therefore ineligible for jury sentencing) as charged, the trial court's judgment did not include a finding that Petitioner was a prior offender.
19.) Petitioner's rights to due process and the effective assistance of counsel were violated by the trial court's acceptance of a defective waiver of counsel because Petitioner “was misinformed by the [trial] court regarding the permissible role and active role of standby counsel.”
20.) Petitioner was denied the effective assistance of counsel in violation of the Sixth Amendment by his standby attorney's failure “to give and offer advi[c]e to [Petitioner] before, during and after trial altogether until after judgment and sentence was pronounced.”
21.) The prosecutor and trial court violated Petitioner's Fifth Amendment right to due process when the prosecutor (a) misstated the evidence at trial, (b) described crimes for “which [Petitioner] was not tried . . . in [a] court of law nor found guilty of, ” and (c) “unjustly stat[ed] [Petitioner] committed crimes.”
22.) The substitute information did not state the offense of attempted forcible rape in violation because Count I did not (a) include forcible compulsion or a substantial step toward forcible rape, (b) mention (i) the attempt statute, (ii) the character of the force used, and (iii) what acts by Petitioner did not have the consent of Victim, nor (c) state that Petitioner acted knowingly. The trial court therefore allegedly violated Petitioner's Fourth, Fifth, and Sixth Amendment rights.
23.) The substitute information did not state the offense of kidnapping in violation of Petitioner's Fourth, Fifth, Sixth and Fourteenth Amendments because Count 2 did not mention (a) that Petitioner used forcible compulsion or acted knowingly or (b) how Victim was terrorized.
24.) The court clerk, prosecutor, or trial court committed misconduct by removing from the verdict forms the information regarding who submitted the forms. These actions allegedly violated Petitioner's due process right and rights under the First, Fourth, Fifth, Sixth, and Ninth Amendments.
25.) The trial court allowed the prosecutor to comment on, question Petitioner, and present argument about Petitioner's invocation of his right to represent himself. The trial court therefore allegedly violated Petitioner's rights to due process, to represent himself and to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.
26.) The trial court violated Petitioner's right to a fair trial by overruling his objections to questions that called for speculation and bias in calling Petitioner a “monster.”
27.) The motion court violated Petitioner's constitutional rights by denying Petitioner's post-conviction motion without a hearing because (a) Petitioner's counsel on direct appeal was ineffective for failing to raise a claim, (b) the trial court erred in overruling petitioner's objections “based [on] speculation and being argumentative, ” and (c) the prosecutor's questions “forc[ed Petitioner] to speculate about why all of the witnesses put this case on [him].” The trial court therefore allegedly violated Petitioner's rights to the effective assistance of counsel, due process, and access to the courts.
28.) The prosecutor violated Petitioner's right to due process and his rights under the Fifth and Sixth Amendments during closing argument by (a) vouching for the credibility of the State's witnesses and (b) asking “the jury to speculate on why everyone would be lying” about Petitioner.
29.) The trial court violated Petitioner's rights under the Fourth and Fifth Amendments by denying, without an evidentiary hearing, Petitioner's post-verdict motion to set aside or arrest judgment for the attempted forcible rape offense (Count 1) and kidnapping offense (Count 2).
30.) This ground for relief is dismissed.
31.) The prosecutor violated Petitioner's rights under the Fifth and Sixth Amendments when, during closing argument, the prosecutor (a) “misstat[ed] the evidence of the 911 [call] tape” and (b) “misle[d] the jury to believe that the 911 caller said ‘someone is being raped.”
32.) The trial court violated Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments by sentencing Petitioner for attempted forcible rape as an unclassified felony when the offense “was only charged as a felony.”
33.) The prosecutor violated Petitioner's rights under the Fifth and Fourteenth Amendments by not following an agreement “to preclude the State's admission of prior arrest[s], trials, and investigations of the witness[es], both during voir dire and at trial.”

         Respondents argue the Court may not consider the merits of grounds 1, 3-7, 9, 11-18, 21-24, 28, 29, and 31[[4]] because Petitioner (1) procedurally defaulted those claims by not presenting them to the Missouri Court of Appeals in Petitioner's direct appeal and (2) has not shown either cause and prejudice or a miscarriage of justice to avoid the default. For ground 2, Respondents contend the Missouri Court of Appeals' decision regarding the merits of the claim is not an incorrect or unreasonable application of clearly established federal law, is supported by the record, and is entitled to this Court's deference. Respondents argue that ground 8 is moot due to the jury's verdict finding Petitioner guilty beyond a reasonable doubt. They further argue ground 8 is not cognizable in this habeas proceeding to the extent Petitioner is challenging the trial court's jurisdiction. Respondents further assert that this Court may not consider the merits of grounds 19 and 25 because the Missouri Court of Appeals reviewed them on direct appeal for plain error, and Petitioner has not demonstrated either cause and prejudice or a miscarriage of justice to permit review of their merits. For ground 20, Respondents argue Petitioner defaulted that ground, and this Court may not consider the ground on its merits, because Petitioner did not present it to the Missouri Court of Appeals in his post-conviction appeal, and Petitioner has not shown either cause and prejudice or a miscarriage of justice to permit review of the claim on its merits. With respect to ground 26, Respondents assert the Missouri Court of Appeals' decision in Petitioner's post-conviction appeal regarding the merits of the claim is not an incorrect or unreasonable application of clearly established federal law, is supported by the record, and is entitled to this Court's deference. In response to ground 27, Respondents argue that the claim is defaulted, and may not be considered on its merits, for the reason that the Missouri Court of Appeals in Petitioner's post-conviction appeal held the claim “was not cognizable in a Rule 29.15 proceeding because the alleged misconduct would have been apparent at trial, ” and Petitioner has not established cause and prejudice or a miscarriage of justice to avoid the default. In the alternative, Respondents argue each of the defaulted grounds for relief lacks merit. Respondents did not explicitly respond to grounds 32 and 33.

         III. Discussion

         Respondents argue the Court may not address the merits of any ground for relief, other than grounds 2, 8, and 26, because the claims are procedurally barred. Specifically, Respondents argue that the following grounds are procedurally defaulted: (1) grounds 1, 3-7, 9, 11-18, 21-24, 28, 29, and 31 because Petitioner did not pursue them on direct appeal; (2) grounds 19 and 25 because the Missouri Court of Appeals reviewed them on direct appeal for plain error; and (3) grounds 20 and 27 either because Petitioner did not present the claim in his post-conviction appeal (ground 20) or because Petitioner improperly presented the claim in his post-conviction appeal rather than in his direct appeal (ground 27). The procedural bar prohibiting review of the merits of these defaulted claims occurs because, Respondents assert, Petitioner has not shown either cause and prejudice or a miscarriage of justice to avoid the procedural default. Respondents contend the Court may address the merits of grounds 2 and 26 because Petitioner properly presented them to the Missouri Court of Appeals, which addressed them on their merits. Respondents argue this Court must defer to the Missouri Court of Appeals' decisions regarding the issues presented in grounds 2 and 26 because they correctly and reasonably applied clearly established federal law and are supported by the record. With respect to ground 8, Respondents argue it is either moot or not cognizable in this habeas proceeding. The Court also addresses the merits of grounds 32 and 33, to which Respondents did not respond. Because a number of grounds may be procedurally barred from consideration on the merits, the Court addresses the procedural issues before discussing the merits.

         A. Procedurally barred claims (all grounds except 2, 8, 26, 32 and 33)

         (1) Procedural Default

         (a) Parties' Arguments

         In relevant part, Respondents contend that Petitioner procedurally defaulted all grounds for relief other than grounds 2, 8, 19, 25, and 26 either by failing to present those claims to the Missouri Court of Appeals or by failing properly to present the claim to the Missouri Court of Appeals (ground 27). With respect to grounds 19 and 25, Respondents argue they are procedurally defaulted because the Missouri Court of Appeals reviewed those two grounds for plain error.

         Petitioner summarily responds that “Respondents['] procedural default argument is ambiguous and . . . does not clearly rest on independent and adequate state grounds, ” and, therefore, is not sufficient “to preclude federal collateral review.”[[5]] Petitioner cites a decision of the United States Court of Appeals for the Ninth Circuit, Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002) (en banc), to support his position.[[5]]

         In Valerio, the Ninth Circuit concluded, in relevant part, that the habeas court improperly found procedural default with respect to issues addressed in a state supreme court decision the Ninth Circuit characterized as “ambiguous” and as “not clearly resting on independent and adequate state grounds.” Id. at 773-75. Specifically, the Ninth Circuit noted the state supreme court, which considered as procedurally barred a group of eighteen claims, some of which had been presented to the state courts and some of which had not, without delineating which claims fell into each group, “fail[ed] to specify which claims were barred for which reasons.” Id. at 775. Based on this conclusion, the Ninth Circuit reversed and remanded with instructions for the district court to give the claims, among others, “appropriate consideration.” Id. at 779.

         Assuming arguendo, the Valerio decision may apply to this case, it is distinguishable. All but three of Petitioner's alleged procedural defaults result from Petitioner's failure to present the Missouri Court of Appeals with the relevant issues, and do not result from the manner in which a state appellate court addressed issues presented to it. Therefore, Valerio clearly is inapplicable to the claims defaulted due to Petitioner's failure to present the issues on appeal in the state court proceedings.

         For grounds 19 and 25, Petitioner presented them on direct appeal as issues of plain error and the Missouri Court of Appeals found no plain error.[[5]] Therefore, for grounds 19 and 25 the Missouri Court of Appeals clearly enunciated the basis for its review of those two claims, and Valerio is inapplicable.

         With respect to ground 27, which arises out of alleged prosecutorial misconduct occurring during trial, the alleged procedural default resulted from Petitioner's pursuit of the claim in his post-conviction appeal rather than his direct appeal. The Missouri Court of Appeals in Petitioner's post-conviction appeal unambiguously stated claims of prosecutorial misconduct are not cognizable in a post-conviction proceeding, and must be presented on direct appeal, unless the alleged misconduct “would not have been apparent at trial.”[[5]] Unlike the state court decision considered by the Ninth Circuit in Valerio, the Missouri Court of Appeals clearly specified which issue was barred from consideration (prosecutorial misconduct) as well as why it was barred (Petitioner failed to present it on direct appeal although the alleged misconduct was apparent during trial). Therefore, Valerio does not save grounds 2, 8, 19, 25, 26, and 27 from procedural default.

         Petitioner also argues that procedural default does not apply to his claims because he was unaware of, was not advised about, and “had not read case law about” procedural default principles. Petitioner does not cite any authority supporting this argument. He does not argue that a state actor or other circumstance misled him about the effect of procedural default issues or stopped him from addressing or learning about them. Without more, the Court need not further address this contention because, as discussed in the discussion below, the application of procedural default principles is not contingent on a petitioner's prior awareness or knowledge of procedural default issues. Moreover, Petitioner had an attorney available to him for consultation throughout trial and was otherwise represented by counsel during early pretrial proceedings, proceedings in the post-conviction motion court after he filed his pro se motion, and during his appeals. Any lack of awareness or knowledge by Petitioner about procedural default issues and their consequences does not support a failure to consider their application in this federal habeas proceeding.

         Petitioner further argues that Respondents' use of the word “demonstrates, ” as well as Respondents' use of the word “constitutes, ” (rather than the word “establishes”) is “ambiguous” and “insufficient” to present the argument.[[5]] While Petitioner may disagree with Respondents' word choice, Respondents clearly state their position on procedural default issues with respect to each ground they challenge on the basis of procedural default.

         Finally, Petitioner argues that grounds 1 and 22 (challenging the sufficiency of the attempted forcible rape charge) cannot be procedurally defaulted because “[a] claim that the indictment fails to state an offense may be raised at any time.” (citing United States v. Villarreal, 707 F.3d 942 (8th Cir. 2013)). The Villarreal case, however, was not a federal habeas proceeding challenging the sufficiency of a state criminal charge.[[5]] Instead, Villarreal was a decision in a direct appeal challenging the sufficiency of the underlying federal indictment. Therefore, Villarreal is not helpful here. Assuming arguendo, that a federal habeas petitioner may pursue a challenge to the sufficiency of a state criminal charge, the Court is not persuaded that procedural default principles are inapplicable to such a ground for relief when the habeas petitioner failed to present a Missouri appellate court with the issue before pursuing it in the federal habeas proceeding. Therefore, the Court concludes it may consider the application of procedural default issues to Petitioner's grounds for relief.

         (b) Procedural Default

         “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); 28 U.S.C. § 2241(c)(3) and § 2254(a). Before seeking federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, a habeas petitioner “must first ‘exhaust his state law remedies and fairly present the facts and substance of his habeas claim to the state court.'” Carney v. Fabian, 487 F.3d 1094, 1096 (8th Cir. 2007) (quoting Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006)); accord Nash v. Russell, 807 F.3d 892, 898 (8th Cir. 2015) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004)). “If a petitioner has not presented his habeas corpus claim to the state court, the claim is generally defaulted.” Carney, 487 F.3d at 1096.

         A petitioner must present the claim to the state courts “in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (internal quotation marks omitted) (quoting Beaulieu v. Minnesota, 583 F.3d 570, 573 (8th Cir. 2009)); accord Sawyer v. Whitley, 505 U.S. 333, 338 (1992) (generally, a federal habeas court may not reach the merits of a federal constitutional claim procedurally defaulted due to a petitioner's failure “to follow applicable state rules in raising the claims” in state court). In Missouri state court proceedings, a litigant must raise constitutional claims at the earliest opportunity and preserve them throughout the proceedings. State v. Liberty, 370 S.W.3d 537, 546 (Mo. 2012) (en banc) (citing State v. Wickizer, 583 S.W.2d 519, 523 (Mo. 1979) (en banc)). To satisfy the exhaustion requirement, a state prisoner “must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011) (internal quotation marks omitted) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).[[5]]

         A litigant in Missouri must pursue on direct appeal any allegations of trial court errors or prosecutorial misconduct apparent during trial court proceedings. See, e.g., Tisius v. State, 183 S.W.3d 207, 212 (Mo. 2006) (en banc) (“If the alleged [prosecutorial] misconduct was apparent at trial, then it is an issue for direct appeal, not a [post-conviction] proceeding”); Middleton v. State, 103 S.W.3d 726, 740 (Mo. 2003) (en banc) (alleged error in admission of a letter “constitutes a claim of trial error in admission of [a] document . . . [that] must be raised on direct appeal and [is] not cognizable in a post-conviction motion”); Griffin v. State, 794 S.W.2d 659, 661 (Mo. 1990) (en banc) (a challenge to certain statements by prosecutor during closing argument is an “issue[] that w[as] before the trial court in the course of [the] criminal trial” and subject to review on direct appeal).

         This requirement applies to constitutional claims of trial error, which must be raised on direct appeal unless “exceptional circumstances are shown justifying the failure to raise the issues on direct appeal.” Amrine v. State, 785 S.W.2d 531, 536 (Mo. 1990) (en banc); accord Franklin v. State, 24 S.W.3d 686, 693 (Mo. 2000) (en banc) (“Issues capable of being raised on direct appeal -- even constitutional issues -- may not be raised in post[-]conviction proceedings except where fundamental fairness requires otherwise and only in rare and exceptional circumstances”). “Exceptional circumstances” allowing consideration of a trial error during a post-conviction proceeding exist, for example, when before the direct appeal a petitioner lacks knowledge, due to a state actor's conduct, of the information needed to make the claim. See, e.g., Frazier v. State, 431 S.W.3d 486, 492-93 (Mo.Ct.App. 2014) (allowing consideration during a post-conviction proceeding of an alleged Brady violation because the movant “was unaware of the State's nondisclosure at the time” of the movant's direct appeal).

         However, an attorney's failure to raise a known or apparent error in trial proceedings on direct appeal cannot constitute an “exceptional circumstance.” If that were the case, the “exceptional circumstances” rule would be meaningless: every trial error omitted from a direct appeal could be pursued in a post-conviction proceeding. On the contrary, a post-conviction proceeding “is not a substitute for direct appeal.” State v. Twenter, 818 S.W.2d 628, 636 (Mo. 1991) (en banc). “Matters that properly should have been raised on direct appeal may not be litigated in a post-conviction proceeding.” Id.

         In contrast, a post-conviction proceeding is the exclusive procedure for pursuing an ineffective assistance of counsel claim in a Missouri state court. Mo. S.Ct. Rules 29.15(a), 29.15(k), and 29.15(1); Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006). Granted, a court's decision on a post-conviction motion is subject to appeal, and a litigant may not file successive post-conviction motions. Id. Accordingly, to exhaust an ineffective assistance of counsel claim for a federal habeas proceeding, the claim must be raised in both a post-conviction motion and the post-conviction appeal. See, e.g., Osborne v. Purkett, 411 F.3d 911, 919 (8th Cir. 2005). Any claim that should have been but was not presented in an appeal from a denial of a post-conviction motion is procedurally defaulted. See, e.g., id. at 919 (an ineffective assistance of counsel claim that was in post-conviction motion but not in post-conviction appeal is “now procedurally barred”); Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir. 1997) (finding an ineffective assistance of trial counsel claim defaulted “when [the petitioner] failed to raise it in his post-conviction appeal”).

         Finally, a ground for relief in a federal habeas proceeding is also procedurally defaulted if a state appellate court reviewed the issue for plain error. Clark v. Bertsch, 780 F.3d 873 (8th Cir. 2015). Importantly, where a state court “explicitly invokes a state procedural bar rule as a separate basis for decision” and alternatively reaches the merits of a federal claim, the adequate and independent state ground doctrine applies.” Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989).

         In grounds 1, 3-7, 9, 11-18, 21-24, 28, 29, and 31, Petitioner pursues claims based on alleged trial court errors and alleged prosecutorial misconduct occurring during trial proceedings. Petitioner did not present the Missouri Court of Appeals during Petitioner's direct appeal with any of the claims Petitioner now pursues in these grounds for relief. Each of these grounds presents issues that were apparent during the proceedings in the trial court. Therefore, these grounds are procedurally defaulted.

         Petitioner presented the issues of trial court error he pursues in grounds 19 and 25 to the Missouri Court of Appeals as issues of plain error in points one and four of his direct appeal.[[5]]The Missouri Court of Appeals resolved those issues based on plain error review.[[5]] Grounds 19 and 25 are, therefore, procedurally defaulted. See Clark, supra. Due to the Missouri Court of Appeals' explicit recognition of its plain error review, the fact the Missouri Court of Appeals alternatively reviewed those issues on their merits does not preclude this Court from considering those grounds as procedurally defaulted. See, e.g., Harris, 489 U.S. at 264 n. 10.

         Finally, Petitioner did not present in his post-conviction appeal the ineffective assistance of standby counsel claim that he pursues in ground 20. Additionally, Petitioner did not present in his direct appeal, but did pursue in his post-conviction appeal, his claim of prosecutorial misconduct challenging the manner in which the prosecutor, during trial, questioned him about other witnesses' testimony and characterized him as a “monster” (ground 27). The Missouri Court of Appeals concluded the prosecutorial misconduct claim was not properly pursued in a post-conviction proceeding and should have been presented in Petitioner's direct appeal.[[5]]Therefore, both of these grounds are procedural defaulted. See Osborne, 411 F.3d at 919; Sweet, 125 F.3d at 1150; Tisius, 183 S.W.3d at 212. Having found a number of Petitioner's grounds procedurally defaulted, the Court considers whether it may nevertheless consider their merits based on a showing by Petitioner of either cause and prejudice or a miscarriage of justice.

         (2) Cause and Prejudice or a Miscarriage of Justice to Avoid Procedural Default

         Respondents contend Petitioner has not demonstrated either cause and prejudice or a miscarriage of justice sufficient to avoid any of the procedural defaults. Petitioner counters that his attorneys' failure to present issues in his direct and post-conviction appeals provides cause for his defaults.[[6]]

         A federal habeas court may not reach the merits of a federal constitutional claim procedurally defaulted due to a petitioner's failure to follow applicable state rules in raising the claim in state court, unless a petitioner demonstrates either cause and prejudice or a miscarriage of justice. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992); accord Skillicorn v. Luebbers, 475 F.3d 965, 976-77 (8th Cir. 2007) (“Unless a habeas petitioner shows cause and prejudice or that he is actually innocent of the charges, a [federal habeas] court may not reach the merits of procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims”). “Cause for a procedural default exists where ‘something external to the petitioner, something that cannot fairly be attributed to him[, ] . . . impeded [his] efforts to comply with the State's procedural rule.'” Maples v. Thomas, 565 U.S. 266, 281 (2012) (alterations and emphasis in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Notably, “the precise contours of the cause requirement have not been clearly defined.” Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir. 1999). What is established is that a “fail[ure] to raise [a] claim despite recognizing it, does not constitute cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 486 (1986). If a petitioner does not establish cause for the procedural default, a habeas court need not determine whether he demonstrated prejudice. Oglesby v. Bowersox, 592 F.3d 922, 926 (8th Cir. 2010).

         As an alternative to the cause and prejudice exception to procedural default, a petitioner may demonstrate a miscarriage of justice sufficient to avoid the default by presenting new evidence that affirmatively demonstrates he is innocent of the crime for which he was convicted. Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006). Specifically, a petitioner must show both new evidence and “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Osborne, 411 F.3d at 920 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). “Without any new evidence of innocence, . . . a concededly meritorious constitutional violation is not . . . sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim.” Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007) (quoting Schlup, 513 U.S. at 316).

         The only external impediment Petitioner presents as cause for his procedural defaults is his appellate attorneys' failure to pursue the issues in Petitioner's appeals. To establish cause in this context, the attorney's conduct must constitute the ineffective assistance of appellate counsel. Further, if the ineffective assistance of appellate counsel claim is procedurally defaulted, the petitioner must satisfy the cause and prejudice standard for that claim before it may serve as cause for another procedurally defaulted claim. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000). Here the ...


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