United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
case is before the Court on the petition of Donald Giammanco
for writ of habeas corpus pursuant to 28 U.S.C. §
2254. A state jury convicted Giammanco of seven
counts of first-degree robbery, for which he received a total
sentence of twenty years' imprisonment. His conviction
and sentence were affirmed by the Missouri Court of Appeals.
State v. Giammanco, 351 S.W.3d 247 (Mo.Ct.App. 2011)
(Resp. Exh. E). The Missouri Court of Appeals later affirmed
the denial of his post-conviction motions filed under
Missouri Supreme Court Rule 29.15. Giammanco v.
State, 416 S.W.3d 833, 836-38 (Mo.Ct.App. 2013) (Resp.
petition for habeas corpus, Giammanco asserts six grounds for
relief. Two of his claims, that the trial court should have
intervened sua sponte during the prosecutor's
cross-examination and that Giammanco received ineffective
assistance of appellate counsel, are procedurally barred.
Giammanco's claim that he was deprived of due process
when the post-conviction court arbitrarily applied a state
procedural rule is denied because it is without merit. The
Missouri Court of Appeals addressed Giammanco's final
three claims of ineffective assistance of trial counsel and
denied them on the merits. Because the state appellate
court's decision was not an unreasonable application of
clearly established law and was not based on an unreasonable
determination of the facts, I will deny Giammanco's
petition for writ of habeas corpus.
Missouri Court of Appeals described the factual and
procedural background of this case as follows:
Between February 1, 2008 and September 18, 2008, [Giammanco]
entered seven banks in St. Louis County and handed the
tellers an envelope and a note instructing the tellers to
remove the money from the top and bottom cash drawers, place
the money and note in the envelope, and exclude bait money,
dye packs, or tracking devices. The notes also variously
warned the tellers to comply with [Giammanco's] demands
so that “no one would get hurt, ” everyone would
“go home safe, ” or everyone would “get out
alive.” After handing the tellers the envelope and
note, [Giammanco] placed and maintained his right hand inside
of his jacket or jacket pocket, leading the tellers to
believe that he was armed with a dangerous weapon. After
filling the envelopes with money, the tellers returned the
envelopes to [Giammanco], and [Giammanco] exited the banks.
Police officers arrested [Giammanco] on September 18, 2008,
shortly after he robbed the Commerce Bank at 487 Old Smizer
Mill Road. On that day, Justin Nicholas, a teller, read
[Giammanco's] note and placed approximately $12, 000 in
[Giammanco's] envelope, along with bait money and an
electronic tracker. Patrick Higgins, a bank manager who
observed the exchange and recognized [Giammanco] from news
coverage of the related bank robberies, followed [Giammanco]
out of the bank, recorded his license plate number, and
provided the information to the police. Within minutes,
police officers stopped and arrested [Giammanco] and seized
from [Giammanco's] vehicle a white envelope containing
U.S. currency, bait money, and a tracking device; a note
demanding money; and [Giammanco's] jacket. Approximately
thirty minutes later, Mr. Nicholas identified [Giammanco] as
the man who presented him the note and took the money from
A St. Louis County police officer transported [Giammanco] to
police headquarters in Clayton, where police officers from
various municipalities and an FBI agent interviewed [him].
[Giammanco] admitted to robbing seven banks in St. Louis
County [as well as five banks in St. Charles County].
On October 22, 2008, the State filed an indictment charging
[Giammanco] with four counts of first-degree robbery. Defense
counsel entered an appearance on October 29, 2008, and on
November 12, the trial court continued the matter to February
6, 2009 “by consent, pending federal case.” On
February 11, 2009, the trial court again continued the case
“pending outcome of federal case.” On April 17,
2009, the trial court continued the case until July 17, 2009
for a plea or selection of a trial date.
On June 5, 2009, [Giammanco] pleaded guilty in the U.S.
District Court, Eastern District of Missouri, to twelve
counts of bank robbery, which included the seven offenses at
issue in the instant case. On July 17, 2009, the trial court
continued the case to August 14, 2009, on which date the
court scheduled trial for December 14, 2009. On November 17,
2009, the trial court informed the parties that, due to the
court's scheduling conflict, it was continuing the case
and resetting the trial date “pending case reassignment
to another division.” The following day, the case was
reassigned and, on December 11, 2009, the trial court held a
pre-trial conference and set the case for trial on August 9,
On January 11, 2010, [Giammanco] filed a pro se motion for
speedy trial. At a pre-trial conference on April 23, 2010,
the trial court ordered: “Cause remains set for trial
8-9-10.” [Giammanco] filed a pro se request for
dismissal for cause for violation of double jeopardy on June
In a pre-trial conference on August 9, 2010, the first day of
trial, [Giammanco] moved to terminate counsel “for many
reasons, conflict of interest, differences in strategy to
proceed forward, lack of communication, lack of preparedness,
and many other things . . . .” The trial court denied
the motion on the grounds that it was untimely filed.
[Giammanco] then moved for a continuance, and the trial court
denied the motion. [Giammanco] asserted that the defense
needed time to depose witnesses, including the victim bank
tellers and police officers and detectives who investigated
the case, and alleged “I've asked [trial counsel]
for this numerous times and they just say, no, I'm not
going to do it.” Trial counsel responded, “Judge,
we haven't deposed witnesses because we didn't feel
it was appropriate as far as our strategy in the case.”
The trial court then considered and denied Movant's pro
se motion to dismiss based on violation of the right to
At trial, the State called as witnesses the seven victim bank
tellers; Mr. Higgins, the manager from Commerce Bank on Old
Smizer Road; and six police officers and detectives involved
in the investigation. [Giammanco], defending on the theory
that he did not commit first-degree robbery because he did
not threaten to use a deadly weapon, testified on his own
behalf. [Giammanco] admitted to entering the seven banks and
demanding money, but he denied intending to create the
impression that he possessed a dangerous weapon.
The jury found [Giammanco] guilty of seven counts of
first-degree robbery. The trial court sentenced [him] to
consecutive terms of ten years' imprisonment on counts
one and seven, to run concurrently with
fifteen-year-sentences on counts two through six and [his]
federal sentence of seventy-six months' imprisonment, for
a total sentence of twenty years' imprisonment. This
court affirmed [Giammanco's] conviction and sentence.
State v. Giammanco, 351 S.W.3d 247 (Mo.Ct.App.
[Giammanco] filed a Rule 29.15 motion for post-conviction
relief, which counsel later amended. The motion court found
that the record refuted [Giammanco's] claims and denied
the Rule 29.15 motion without an evidentiary hearing.
Giammanco v. State, 416 S.W.3d at 836-38 (Resp. Exh.
I at 1-5).
petition for writ of habeas corpus, Giammanco raises six
grounds for relief:
Giammanco was denied his Fourteenth Amendment rights to due
process and a fair trial when the trial court failed to
intervene sua sponte in the prosecutor's
improper cross-examination of him;
Trial counsel was ineffective in failing to file a motion to
dismiss based on a violation of Giammanco's right to a
Trial counsel was ineffective in failing to file a motion to
dismiss based on a violation of the Double Jeopardy Clause;
Giammanco was denied effective and conflict-free assistance
of counsel and due process of law because his trial attorneys
represented him on a pro bono basis for the
publicity and intended on exerting as little time, effort,
and money as possible on his defense;
Giammanco was denied due process when his appointed
post-conviction counsel physically attached his pro se
post-conviction motion to the amended motion, rather than
amending all of the pro se claims as well; and
Appellate counsel was ineffective in failing to raise as an
issue on appeal that the trial court wrongfully sentenced
Giammanco to an aggregate sentence of twenty years in prison,
even though the jury recommended maximum sentences of fifteen
years on each of the seven counts.
Procedurally Defaulted Claims
prisoners must fairly present all claims to the state courts.
When a prisoner has gone through all stages of direct appeal
and post-conviction proceedings without presenting a claim to
the state courts, that claim is procedurally defaulted.
Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997).
This means that a federal habeas court cannot hear the claim
unless the prisoner demonstrates “cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or . . . that failure to consider the claim
will result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
respondent argues that Giammanco procedurally defaulted his
first and sixth grounds for relief by failing to present them
to the Missouri courts. If true, this Court may not consider
either claim unless Giammanco can meet one of the two
exceptions to procedural default. To qualify for the first
exception, Giammanco must show cause and prejudice. To
demonstrate cause, he must show that “some objective
factor external to the defense” impeded his efforts to
present the claim to the state courts. Murray v.
Carrier, 477 U.S. 478, 488 (1986). To establish
prejudice, Giammanco must demonstrate that the identified
errors “worked to his actual and substantial
disadvantage, infecting the entire trial with error of
constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). The second exception
requires Giammanco to show that failure to consider the
defaulted claims will result in a fundamental miscarriage of
justice. To meet this standard, he must present new evidence
that “affirmatively demonstrates that he is innocent of
the crime for which he was convicted.” Abdi v.
Hatch, 450 F.3d 334, 338 (8th Cir. 2006).
One: Denial of Due Process Based on Trial Court's Failure
to Intervene During Prosecutor's Cross-Examination of
Ground One, Giammanco alleges that he was denied a
fundamentally fair trial and due process when the trial court
failed to intervene sua sponte in the
prosecutor's improper cross-examination of him. Giammanco
raised this claim on direct appeal. State v.
Giammanco, 351 S.W.3d 247 (Mo.Ct.App. 2011) (Resp. Exh.
E at 5-9). However, because Giammanco failed to properly
preserve this claim of error at the trial court level, the
Missouri Court of Appeals reviewed it for plain error only
and denied it. Giammanco's failure to properly preserve
Ground One for review in the state courts means that it is
procedurally defaulted, and the appellate court's plain
error review does not cure this default. See Clark v.
Bertsch, 780 F.3d 873, 874 (8th Cir. 2015) (“a
federal habeas court cannot reach an otherwise unpreserved
and procedurally defaulted claim merely because a reviewing
state court analyzed the claim for plain error.”).
Therefore, this Court may not consider Ground One unless
Giammanco can establish one of the exceptions to procedural
default. As Giammanco makes no attempt to avoid the
procedural default of this claim, this Court is barred from
considering it. Ground One of Giammanco's § 2254
petition is denied.
Six: Ineffective Assistance of Appellate Counsel
Ground Six, Giammanco alleges that he received ineffective
assistance of appellate counsel. Missouri law requires
defendants to raise all claims for ineffective assistance of
counsel in post-conviction proceedings under Rule 29.15.
Martin v. State, 386 S.W.3d 179, 185 (Mo.Ct.App.
2012) (“Rule 29.15 provides the exclusive procedure by
which a person convicted of a felony may seek relief for
certain claims, including claims of ineffective assistance of
trial and appellate counsel.”). Because Giammanco did
not include this claim in his Rule 29.15 motion, he failed to
present it to the Missouri courts in accordance with state
law and it is procedurally defaulted. Accordingly, this Court
may not consider Ground Six unless Giammanco can establish
cause and prejudice or that the failure to consider it will
result in a fundamental miscarriage of justice.
Giammanco's argument that ineffective assistance of his
post-conviction counsel constitutes cause to excuse the
default is denied. See Davila v. Davis, 137 S.Ct.
2058, 2062-63 (2017) (ineffective assistance of
post-conviction counsel cannot constitute cause to overcome