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Giammanco v. Wallace

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

July 2, 2018

DONALD GIAMMANCO, Petitioner,
v.
IAN WALLACE, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         This case is before the Court on the petition of Donald Giammanco for writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] 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. Exh. I).

         In his 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.

         Background

         The 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 the bank.
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, 2010.
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 4, 2010.
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 speedy trial.
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. 2011).
[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).

         Discussion

         In his petition for writ of habeas corpus, Giammanco raises six grounds for relief:

         (1) 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;

         (2) Trial counsel was ineffective in failing to file a motion to dismiss based on a violation of Giammanco's right to a speedy trial;

         (3) Trial counsel was ineffective in failing to file a motion to dismiss based on a violation of the Double Jeopardy Clause;

         (4) 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;

         (5) 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

         (6) 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.

         I. Procedurally Defaulted Claims

         State 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).

         Here, 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).

         Ground One: Denial of Due Process Based on Trial Court's Failure to Intervene During Prosecutor's Cross-Examination of Giammanco

         In 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.

         Ground Six: Ineffective Assistance of Appellate Counsel

         In 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 ...


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