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Mosley v. Wallace

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

April 24, 2018

DEVIN MOSLEY, Petitioner,
v.
IAN WALLACE, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the petition of Devin Mosley for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent Ian Wallace has filed a response in opposition. The case was referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b).

         I. Procedural Background

         Petitioner Devin Mosley is presently incarcerated at the Southeast Correctional Center pursuant to the sentence and judgment of the Circuit Court of the City of Saint Louis. On September 30, 2011, a jury convicted petitioner of two counts of second-degree murder, under § 565.021, Mo. Rev. Stat., one count each of first-degree and attempted first-degree robbery, under § 569.020, Mo. Rev. Stat., and one count of armed criminal action for each of the four underlying crimes, under § 571.015, Mo. Rev. Stat. Verdicts [Doc. # 6-4 at 48-55]. The trial court sentenced petitioner to consecutive terms of imprisonment totaling life, plus life, plus thirty-five years, based on the jury's recommendations following the penalty phase. Penalty Phase Verdicts and Judgment [Doc. # 6-4 at 80-87 and 104-10]. The Missouri Court of Appeals affirmed petitioner's convictions on direct appeal on February 13, 2013. State v. Mosley, No. ED97797 (Feb. 13, 2013) [Doc. # 6-5]. Petitioner's motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 was denied following an evidentiary hearing. Conc. of Law & Order [Doc. # 6-6 at 15-25, 56-66]. On February 3, 2015, the Missouri Court of Appeals affirmed the denial of post-conviction relief. Mosley v. State, No. ED100915 (Feb. 3, 2015) [Doc. # 6-9]. Petitioner timely filed this petition for relief pursuant to 28 U.S.C. § 2254 on May 18, 2015.

         II. Factual Background

         Late on June 1, 2008, two men entered Maggie O'Brien's pub in the City of St. Louis. Only five people were in the pub that evening: the manager, Mike Dolan; the bartender, Brett Ramsey; a patron, Ian Evans; and musicians Rocky Santhoff and Caelin Graber. The two men, later identified as petitioner and his cousin Derrick Anthony, [1] were dropped off in front of the pub. They came in to the bar, used the restroom, purchased a beer, and left. They returned about thirty minutes later with guns. Evans was seated at the bar. Anthony walked up behind him and put a gun to his head and yelled, “Let's go.” At the same time, petitioner walked to the stage where Santhoff and Graber were playing. Petitioner pointed his weapon at Santhoff and tried to pull him off the stage. When Santhoff did not immediately comply, petitioner reached past him and smacked Graber in the head with his gun. Petitioner and Anthony herded everyone to the bar area and told them to get down on the floor. Dolan had been in the manager's office. He entered the bar with his hands in the air and went to the cash register and opened it. He then ran into the kitchen, with Anthony in pursuit. There were two gunshots from the kitchen. Petitioner was still holding the others at gunpoint on the floor of the bar. He yelled at them to interlace their fingers behind their heads and stay on the ground. He reached down and took Santhoff's wallet from his back pocket. Within moments, the alarm for the back door went off and the phone began to ring. Petitioner became very agitated. He alternately shouted to Anthony that they needed to leave and threatened to kill the people on the floor. The witnesses testified that petitioner fired one shot, the heat of which they could feel as they lay on the floor. After that, it became quiet.

         The witnesses testified that the next voice they heard was Dolan's as he came into the bar. He told them that the robbers were gone and they could get up from the floor. He also said that he had been shot and asked Ramsey to call for help. He then lay down on the dining room floor. He was still alive when the paramedics arrived, but died later at the hospital. Anthony fled from Maggie O'Brien's and made his way to Children's Hospital, where he died from a gunshot wound to the chest. See Appellant's Brief [Doc. # 6-2 at 7].

         Petitioner was arrested on a tip made to the police[2]and positively identified in a lineup by Ramsey, Evans, and Santhoff.[3] Resp. Brief [Doc. # 6-3 at 9]. Petitioner told the investigators that he was in the bar area holding people at gunpoint when he heard two shots from the kitchen. When he heard the kitchen door open, he fired his weapon and accidentally shot Anthony in the chest. Appellant's Brief [Doc. # 6-2 at 8]. A recording of his statement to the police was played for the jury. Transcript at 508 [Doc. # 6-1 at 134].

         After deliberation, the jury found petitioner guilty of one count of attempted first-degree robbery of Dolan (Count I), one count of second-degree murder in the death of Dolan (Count III), one count of first-degree robbery of Santhoff (Count V), and one count of second-degree murder in the death of Anthony (Count VII).[4] In addition, the jury found petitioner guilty of one count of armed criminal action for each of the above felonies (Counts II, IV, VI, and VIII). Verdicts and Instructions [Doc. # 6-4 at 48-52; 61-71]. During the penalty phase, the prosecutor called six victim impact witnesses: Michael Dolan's parents and the four people who had been present in the bar at the time of the robbery. The defense did not call any witnesses. Trans. at 684-703 [Doc. # 6-1 at 178-83]. The jury recommended sentences of life imprisonment for each felony murder conviction and related count of armed criminal action, twenty years for first-degree robbery and its related count of armed criminal action, and fifteen years for attempted robbery and its related count of armed criminal action. The trial court adopted the jury's recommendations and imposed the sentences for the murders and robberies consecutively, for a total of two life sentences plus thirty-five years.

         III. Legal Standard

         When a claim has been adjudicated on the merits in state court proceedings, habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court's determination:

(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 law if “it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005). “The state court need not cite or even be aware of the governing Supreme Court cases, ‘so long as neither the reasoning nor the result of the state-court decision contradicts them.'” Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early v. Packer, 537 U.S. 3, 8 (2002)). “In the ‘contrary to' analysis of the state court's decision, [the federal court's] focus is on the result and any reasoning that the court may have given; the absence of reasoning is not a barrier to a denial of relief.” Id. See also Wilson v. Sellers, --- S.Ct. ---, No. 16-6855, 2018 WL 1800370, at *3 (Apr. 17, 2018) (holding that, when the last state court to decide a claim does not explain its reasoning, the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale).

         A decision involves an “unreasonable application” of clearly established law if “the state court applies [the Supreme Court's] precedents to the facts in an objectively unreasonable manner, ” Payton, 544 U.S. at 141; Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 406. “Federal habeas relief is warranted only when the refusal was ‘objectively unreasonable, ' not when it was merely erroneous or incorrect.” Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).

         When reviewing whether a state court decision involves an “unreasonable determination of the facts, ” state court findings of “basic, primary, or historical facts” are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007) (citations omitted); 28 U.S.C. § 2254(e)(1). Erroneous findings of fact by the state courts do not ensure the grant of habeas relief. Rather, the determination of these facts must be unreasonable in light of the evidence of record. Sittner v. Bowersox, No. 4:12 CV 1156 CDP, 2017 WL 5518025, at *3 (E.D. Mo. Nov. 17, 2017) (citing Collier, 485 F.3d at 423).

         IV. Discussion

         Petitioner asserts twelve grounds for relief. In Ground One, he argues that there was insufficient evidence to support his conviction for second-degree murder in the death of Derrick Anthony. In Ground Two, he argues that trial counsel rendered ineffective assistance during the penalty phase by failing to call a mitigation witness on his behalf. These claims were fully presented to the state court. In the remaining ten claims, petitioner asserts that post-conviction counsel was ineffective in failing to raise multiple challenges to trial counsel's performance. Petitioner concedes that these claims were not raised in the state courts but argues that his procedural default is excused under Martinez v. Ryan, 566 U.S. 1 (2012). The Court need not address whether Martinez applies because these claims fail on their merits.

         Ground 1: Sufficiency of Evidence for Second-Degree Murder

         Petitioner argues that there was insufficient evidence that his accidental shooting of Anthony, as charged in Count VII, occurred during the commission of another crime.

         Challenges to the sufficiency of the evidence arise under Jackson v. Virginia, 443 U.S. 307, 324 (1979), in which the Supreme Court held that a state prisoner is entitled to habeas relief if “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” The Jackson “standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Id. at 324 n.16. A federal habeas corpus court faced with a factual record that supports conflicting inferences “must presume that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.

         The Supreme Court has stated that Jackson claims face a high bar in federal habeas proceedings because they are ...


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