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Swopes v. Norman

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

May 25, 2018

LARON SWOPES, Petitioner,
v.
JEFF NORMAN, [1] Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the Petition of Laron Swopes for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b).

         I. Procedural History

         Swopes is incarcerated at the South Central Correctional Center in Licking, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of St. Louis City, Missouri. (Doc. 11-4 at 179.)

         On January 16, 2009, a jury found Swopes guilty of one count of first-degree assault, one count of armed criminal action, two counts of third-degree assault, and one count of unlawful use of a weapon. (Doc. 11-1 at 647.) The court sentenced him to a term of imprisonment of fifteen years for the first-degree assault count; a consecutive term of thirty years' imprisonment on the armed criminal action count; a concurrent term of fifteen years' imprisonment for the unlawful use of a weapon count; and two one-year sentences for the third-degree assault counts, which were deemed completed due to time served. Id.

         In his direct appeal of his convictions, Swopes first argued that the trial court plainly erred in accepting inconsistent verdicts. (Doc. 11-2 at 10.) He next argued that the trial court erred when it overruled his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to support his conviction for unlawful use of a weapon. Id. at 11. Finally, Swopes argued that the statute under which he was convicted was unconstitutional. Id. at 12. On June 7, 2010, the Missouri Court of Appeals affirmed the judgment of the trial court. (Doc. 11-5.)

         Swopes filed a pro se motion for post-conviction relief under Rule 29.15. (Doc. 11-6 at 5-19.) After appointment of counsel, an amended post-conviction relief motion and request for evidentiary hearing was filed. Id. at 29-49. The amended motion raised the following ineffective assistance of trial counsel claims: (1) counsel failed to object to inadmissible evidence of uncharged crimes during the penalty phase of his trial; (2) counsel failed to cross-examine Marvin Hardie, a penalty phase witness; (3) counsel failed to object to testimony during the penalty phase that Swopes associated with documented gang members; and (4) counsel failed to object to improper argument during the sentencing phase. Id. The motion court denied Swopes' amended motion and his request for an evidentiary hearing. Id. at 50-55.

         In his appeal from the denial of post-conviction relief, Swopes argued that trial counsel was ineffective in failing to object to inadmissible evidence that members of a gang to which Swopes had admitted belonging had been arrested for various crimes. (Doc. 11-7.) The Missouri Court of Appeals affirmed the decision of the motion court. (Doc. 11-9.)

         Swopes filed the instant Petition on September 1, 2015, in which he raises the following grounds for relief: (1) the trial court erred in allowing evidence regarding Swopes' gang affiliation during the sentencing phase; (2) the trial court erred in allowing testimony from a minor during the sentencing phase regarding a crime for which he was not convicted; (3) the trial court erred in not instructing the jury as to a lesser included offense; and (4) the verdicts were inconsistent. (Doc. 1.)

         On November 9, 2015, Respondent filed a Response to Order to Show Cause. (Doc. 11.) Respondent argues that Grounds One, Two, and Three are procedurally defaulted, and all of Swopes' claims fail on their merits.

         II. Facts[2]

         On May 24, 2007, a grand jury indicted Swopes on four counts of assault in the first degree, four counts of armed criminal action, and one count of unlawful use of a weapon. Swopes was tried by a jury January 13-16, 2009. In the light most favorable to the verdicts, the following facts were adduced at trial:

         Prior to December of 2006, Maranda Moody (Maranda) lived in the neighborhood near the intersection of Arlington and Theodosia streets in St. Louis. During the late afternoon of April 5, 2007, Maranda returned to this neighborhood with her two small children, her brother Antonio Moore (Antonio), and Antonio's girlfriend Britnee Heard (Britnee). Antonio, who was driving the car, stopped in front of his friend Ray's house and proceeded to speak with Ray on his front porch. Britnee remained in the passenger seat, and Maranda remained in the back seat directly behind the driver's seat. Maranda's children, one four years old and the other two weeks old, were seated beside Maranda in the back seat of the car.

         While Antonio was speaking with Ray, Maranda spotted her friend Kameka standing across the street, and called out for Kameka to come and see her new baby. As Kameka and Maranda yelled back and forth with each other, someone shouted at Maranda to “shut the F up.” Maranda volleyed back with her own “shut the F up” and stepped out of the car to walk toward Kameka. Maranda was positioned on the driver's side of the car near the rear gas cap when she saw Swopes and his friends grouped together across the street. Swopes then specifically engaged Maranda, telling her to shut up. Maranda again responded by telling Swopes to shut up and by calling him “dirty.” Swopes then pulled a gun from his waistband, pointed it directly at Maranda, who was still standing immediately in front of the car, and fired the weapon twice. Both bullets missed Maranda. Swopes marched closer to Maranda and fired a third shot, once more missing her. Swopes continued toward Maranda until he was face-to-face with her, at which point he said: “[Y]ou got your kids in the car? I'll smoke you girl.”

         Antonio saw the confrontation arise from Ray's porch, and he walked down to diffuse the situation. After firing the three shots at Maranda, however, Swopes turned his attention to Antonio. Swopes handed his gun to a friend, removed another gun from his waistband, handed that gun to the friend as well, and attacked Antonio with his fists. Swopes' friends joined in the fight, beating up Antonio until he managed to scramble back into the car and escape with Maranda, Britnee, and Maranda's two small children.

         At the close of all of the evidence, the jury rendered their verdicts and assessed punishment. The jury found Swopes guilty of assault in the first degree (Count I) and armed criminal action (Count II) in connection with his actions as to Maranda. The jury acquitted Swopes of assault in the first degree (Count III) and armed criminal action (Count IV) in connection with his actions as to Britnee. Swopes was found guilty of two lesser included charges of assault in the third degree (Counts V and VII), but was acquitted of armed criminal action (Counts VI and VIII), in connection with his actions as to Maranda's two small children.

         III. Standard of Review

         A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

         (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(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 ...

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