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Henley v. Cassady

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

June 19, 2018

SCOTT HENLEY, Petitioner,
v.
JAY CASSADY, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Scott Henley's Pro Se Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [4].

         I. BACKGROUND

         Petitioner Scott Henley (“Petitioner”) was convicted by a jury of forcible rape in violation of Missouri Revised Statute § 566.030 and robbery in the second degree in violation of Missouri Revised Statute § 569.030. He was sentenced to thirty-five-years imprisonment for forcible rape and a consecutive ten-year sentence for robbery. His conviction was affirmed by the Missouri Court of Appeals, Eastern District of Missouri. Petitioner filed a timely motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. After a hearing, his motion was denied. The judgment was affirmed on appeal.

         The Missouri Court of Appeals for the Eastern District of Missouri described the facts of Petitioner's conviction as follows:

Victim, a sixty-nine year old widow, lived alone next door to her son. On July 17, 2005, she returned from a community event to her home at around 9:00 p.m. She fell asleep watching television in her living room. At around midnight she awoke, and went upstairs to bed. Defendant saw her turn off the porch light and approached the house and knocked on the door. Victim, hearing the knock, went downstairs to the door, wearing a robe over a t-shirt and undergarments. She opened the door without checking, assuming it would be her son or the tenant of her rental property, who often brought her rent over late in the evening.
Upon opening the door she was confronted by Defendant, a stranger, who claimed he had just been robbed and needed to use the phone. Her suspicions aroused, she attempted to shut the door, but Defendant forced his way in. He told her to get on the couch or he would shoot or kill her. She contemplated fighting him, but doubted she could succeed, due to an ageing knee replacement, and was worried that to do so would make him angry. He got on top of her, on the couch, and ripped the clothes off her, which included a “maxipad” as she suffered from incontinence, leaving the robe underneath her. She tried to talk to him, to stop him from raping her. Victim was particularly concerned as she suffered from a delicate medical condition and was not sure what would happen if he attempted to penetrate her. Her attempts were to no avail and he had sexual intercourse with her. He then went over to her purse on the kitchen table and removed some currency, around $40. He left the house, wiping the doorknob as he left, stating “do you think I'm a fool or something?” When she was able to gather herself, Victim called 911.
At the hospital, Victim was examined by Jennifer Staggs (“Nurse”), who was experienced in examining rape victims. She found marks on her arms that were consistent with the bra being pulled off, as well as bruises on her inner thighs consistent with her legs being forced apart. There were no signs of trauma in the genital area, but a DNA sample was obtained from the semen that was present on the vaginal swab. The DNA was consistent with Defendant's genetic profile and led detectives to question Defendant.

ECF No. 32-5, pgs. 4-5.[1] Petitioner was convicted by a jury and sentenced to consecutive terms of thirty-five-years imprisonment and ten-years imprisonment. Petitioner now challenges his convictions.

         II. STANDARD

         “A state prisoner who believes he is incarcerated in violation of the Constitution or laws of the United States may file a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254.” Osborne v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). In order for a federal court to grant an application for a writ of habeas corpus brought by a person in custody or by order of a state court, the petitioner must show the state court decision:

(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 determination of a factual issue made by a state court is presumed to be correct unless the petitioner successfully rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         A state court's decision is “contrary to” clearly established Supreme Court precedent “if the state court either ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or ‘confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the] precedent.'” Penry v. Garth, 532 U.S. 782, 792 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405-406 (2000)). An unreasonable application of clearly established Supreme Court precedent is found where the state court identifies the correct governing legal principle, but unreasonably applies that principle to the facts of the case. Ryan v. Clark, 387 F.3d 785, 790 (8th Cir. 2004). Finally, a state court decision may be considered an unreasonable determination of the facts “only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record.” Id.

         III. DISCUSSION

         Petitioner asserts six claims in his petition for writ of habeas corpus. First, he claims there was insufficient evidence to convict him of robbery in the second degree. He asserts the state did not offer evidence to support he used force to accomplish the robbery, which is one of the necessary elements of robbery in the second degree. Second, he contends the trial court erred in failing to declare a mistrial when a state witness offered inadmissible opinion evidence. Third, he argues the trial court abused its discretion by overruling his objection and allowing the state to argue in its rebuttal members of the jury should consult with the lawyers on the jury to evaluate Petitioner's argument in the trial's penalty phase. Fourth, he states his counsel was ineffective, because his lawyer failed to investigate the defense of not guilty by mental disease or defect and failed to present such evidence during the guilt phase of trial. Fifth, he claims ineffective assistance of counsel, because his lawyer failed to adduce mitigation evidence and advise him of his right to present mitigation evidence during the penalty phase of trial, such as his mental illness, low IQ and lack of prior convictions. Finally, he contends his counsel was ineffective, because his lawyer waived closing argument during the guilt phase of trial without consulting him. The Court will address each claim as follows.

         A. Claim One - Insufficient Evidence Supporting Robbery Conviction

         In his first claim, Petitioner argues there was insufficient evidence to support his conviction of robbery in the second degree. Specifically, Petitioner states the State provided no evidence he used force to accomplish the robbery, despite force being a required element of the crime. Instead, Petitioner asserts the evidence showed he only took $40-60 from the victim's house, force was only used in committing the rape, not the robbery, and by the time of the robbery, the violence was over and he used no further threats.

         Petitioner raised this argument in his direct appeal. The Missouri Court of Appeals held this claim of error was without merit. It stated “the evidence showed Defendant forced his way into the house, committed an act of forcible rape upon Victim, took currency from the Victim's purse and then left the house.” The question the Missouri Court of Appeals then turned to was “whether the force used to commit the act of rape carries over to the taking of the currency from the Victim's purse.” It determined “the evidence showed Defendant used force in perpetrating the rape” and, based on both the evidence and legal precedence in Missouri, “Defendant's use of force in raping Victim was sufficient evidence to support his conviction of robbery in the second degree by preventing and overcoming Victim's resistance.” The evidence supporting the finding of force in perpetrating the rape included “the torn bra and the bruises on Victim's arms and legs.”

         Under a § 2254 claim that asserts insufficient evidence to convict, it is necessary to consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “Under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.” Id. at 323. There is also a presumption “the findings of fact made by a state court are correct unless the petitioner rebuts that presumption by clear and convincing evidence.” Evans v. Luebbers, 371 F.3d 438, 441 (8th Cir. 2004). Petitioner has not rebutted this presumption.

         The evidence relied upon by the Missouri Court of Appeals satisfies the Jackson v. Virginia standard - any reasonable juror could find by the torn bra and bruises Petitioner used force to perpetrate the rape and this force overcame the resistance of the victim during the commission of the robbery, one of the necessary elements of second degree robbery. This claim will be denied.

         B. Claim Two - Failure to Declare a Mistrial

         In his second claim, Petitioner asserts the trial court erred when it failed to grant a mistrial after one of the state's witnesses offered inadmissible opinion evidence. Specifically, the prosecutor asked the state witness, “Is there always trauma in the genital area in a person that presents themselves as a sexual assault victim?” to which the witness replied, “No, there is not always trauma. Usually, there is no trauma.” The trial court instructed the jury to disregard the statement “Usually, there is no trauma” instead of granting a mistrial. Petitioner asserts the trial court erred in failing to grant a mistrial, because he was offering a consent defense and was prejudiced by this statement.

         Petitioner raised this argument on direct appeal. In Petitioner's direct appeal, the Missouri Court of Appeals determined:

The trial court cured any potential prejudice by instructing the jury to disregard that statement. In addition, the excluded statement “[u]sually there is no trauma” added little to the admitted part of the statement “[n]o, there is not always trauma” because that statement sufficiently answered the prosecutor's question and explained the absence of genital trauma. Moreover, Defendant's guilt was established overwhelmingly by the evidence including the torn clothing, the DNA samples, and the bruising on the arms and legs. As a consequence, Defendant did not suffer any prejudice from the trial court's refusal to grant a mistrial.

ECF No. 32-5, pg. 9. It then denied this point of appeal and held it was without merit. This determination is not contrary to clearly established Federal law nor is it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Additionally, in his federal habeas corpus claim before this court, Petitioner fails to identify any federal constitutional or statutory violation that occurred because of the failure to grant a mistrial, which is required to have a cognizable federal claim. 28 U.S.C. § 2254(a). This claim will be denied.

         C. Claim Three - Abuse of Discretion in Allowing ...


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