United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
C. HAMILTON, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody filed by Missouri State prisoner Michael Pennell.
(ECF 2). The motion is fully briefed and ready for
March 28, 2012, in the Circuit Court of Ralls County,
Missouri, a jury found Petitioner guilty of two counts of
distribution, delivery, or sale of a controlled substance, in
violation of Mo. Rev. Stat. § 195.211. (ECF 9.4 at
87-88). On March 28, 2012, the trial court sentenced
Petitioner, as a prior and persistent offender, to 20 years
imprisonment for each count with the sentences to be served
concurrently. (ECF 9.4 at 93). On April 23, 2013, the
Missouri Court of Appeals affirmed Petitioner's
conviction and sentence. (ECF 9.3). Petitioner timely filed a
motion for post-conviction relief pursuant to Missouri
Supreme Court Rule 29.15 (ECF 9.10 at 6-19), which was denied
(ECF 9.10 at 74-91). The Missouri Court of Appeals affirmed
the denial of post-conviction relief on March 29, 2016, and
issued the mandate on April 20, 2016. (ECF 9.8 and .9).
§ 2254 Petition, Petitioner raises the following claims
(1) The State violated Petitioner's Fourth Amendment
rights by arresting him without probable cause;
(2) The State violated Petitioner's Fourth, Fifth, Sixth
and Fourteenth Amendment rights “by charging [him] with
a[n] ‘invalid' probable cause affidavit”;
(3) The State violated Petitioner's Fourth, Fifth, Sixth,
and Fourteenth Amendment rights “by charging [him] and
not having jurisdiction”; and
(4) The State violated Petitioner's Fourth, Fifth, Sixth,
and Fourteenth Amendment rights by allowing the district
attorney to charge Petitioner after they had an agreement, in
a previous case, that he would not do so.
PROCEDURAL DEFAULT AND TIMELINESS ANALYSIS
avoid defaulting on a claim, a petitioner seeking habeas
review must have fairly presented the substance of the claim
to the state courts, thereby affording the state courts a
fair opportunity to apply controlling legal principles to the
facts bearing on the claim. Wemark v. Iowa, 322 F.3d
1018, 1020-21 (8th Cir. Cir. 2003) (quotation
marks omitted). A claim has been fairly presented when a
petitioner has properly raised the same factual grounds and
legal theories in the state courts that he is attempting to
raise in his federal petition. Id. at 1021. Claims
that have not been fairly presented to the state courts are
procedurally defaulted. Id. at 1022 (quoting
Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims
that have been procedurally defaulted may not give rise to
federal habeas relief unless the petitioner can demonstrate
cause and prejudice for the default. Id.
United States Supreme Court has held that a state prisoner
can overcome procedural default if he or she can demonstrate
cause and prejudice for the procedural default. Dretke v.
Haley, 541 U.S. 386, 388 (2004). See also Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992) (absent a showing
of cause and prejudice or a miscarriage of justice, a federal
habeas court may not reach the merits of a claim procedurally
defaulted due to a petitioner's failure to follow
applicable state procedural rules in raising the claim in
state court); Coleman v. Thompson, 501 U.S. 722, 750
(1991) (holding that a state habeas petitioner can overcome
procedural default by demonstrating cause for the default and
actual prejudice or demonstrate that default will result in a
fundamental miscarriage-of-justice; Battle v. Delo,
19 F.3d 1547, 1552 (8th Cir. 1994). The United
States Supreme Court has held that because the “cause
and prejudice standard is not a perfect safeguard against
fundamental miscarriages of justice” the Court has
“recognized a narrow exception to the cause requirement
where a constitutional violation has ‘probably
resulted' in the conviction of one who is ‘actually
innocent' of the substantive offense.”
Dretke, 541 U.S. at 393 (citing Murray v.
Carrier, 477 U.S. 478, 496 (1986); Schlup v.
Delo, 513 U.S. 298 (1995)). “[A] habeas petitioner
who wishes to have a procedurally defaulted claim evaluated
on its merits ‘must show by clear and convincing
evidence that but for a constitutional error, no reasonable
juror would have found the petitioner [guilty] under the
applicable state law.'” McCoy v. Lockhart,
969 F.2d 649, 651 (8th Cir. 1992) (citation
innocence is required to meet the miscarriage-of-justice
exception. See Sweet v. Delo, 125 F.3d 1141, 1152
(8th Cir. 1997) (citing Schlup, 513 U.S.
at 316). A “‘bare, conclusory assertion' that
a petitioner is actually innocent is insufficient to excuse a
procedural default.” Sweet, 125 F.3d at 1152
n.9 (citing Weeks v. Bowersox, 119 F.3d 1342,
1352-55 (8th Cir. 1997)). To meet the requisite
standard for a probability of innocence a habeas petitioner
must show that “it is more likely than not that no
reasonable juror would have convicted him in light of
new evidence.” Schlup, 513 U.S. at
327 (emphasis added). See also Osborne v. Purkett,
411 F.3d 911, 920 (8th Cir. 2005). Evidence is
“new” if it was “not available at trial and
could not have been discoverable earlier through the exercise
of due diligence.” Amrine v. Bowersox, 238
F.3d 1023, 1029 (8th Cir. 2001).
for a procedural default exists where ‘something
external to the petitioner, something that cannot fairly be
attributed to him[, ] . . . impeded [his] efforts to comply
with the State's procedural rule.'” Maples
v. Thomas, 565 U.S. 266, 280 (2012) (alterations in
original) (quoting Coleman, 501 U.S. at 753)
(internal quotation marks and citation omitted). “[T]he
precise contours of the cause requirement have not been
clearly defined.” Ivy v. Caspari, 173 F.3d
1136, 1140 (8th Cir. 1999). It has been held that
“novel circumstances and arguments” may
constitute cause to excuse procedural default. McKinnon
v. Lockhart, 921 F.2d 830, 833 (8th Cir.
1990). “[T]he Supreme Court [has] recognized that cause
may exist when the claim raised is so novel that there was no
reasonable basis to have asserted it at the time of a
petitioner's state appeals.” Id. at 833
(citing Reed v. Ross, 468 U.S. 1, 16 (1984)).
However, “[if] the ‘tools were available' for
a petitioner to construct the legal argument at the time of
the state appeals process, then the claim cannot be said to
be so novel as to constitute cause for failing to raise it
earlier.” McKinnon, 921 F.2d at 833
(citing Leggins v. Lockhart, 822 F.2d 764, 766
(8th Cir. 1987)).
regard to the “prejudice” component of
“cause and prejudice, ” as discussed above,
“actual prejudice” is required to overcome the
procedural bar. Zinzer v. Iowa, 60 F.3d 1296, 1299
n.7 (8th Cir. 1995). The Eighth Circuit holds that
the “‘prejudice' component of ‘cause
and prejudice'” necessary to excuse procedural
default is “analytically distinct” from the
prejudice required to establish constitutionally ineffective
assistance of counsel as articulated in Strickland v.
Washington, 466 U.S. 668 (1984). Zinzer, 60
F.3d at 1299 n.7. The “‘actual prejudice'
required to overcome the procedural bar must be a higher
standard than the Strickland” standard.
Id. (citing United States v. Frady, 456
U.S. 152, 165-68 (1982) (holding that to obtain habeas relief
on a defaulted claim, a petitioner must clear a significantly
higher hurdle than would exist on direct appeal).
did not raise the issues of Grounds 1 through 4 either on
direct appeal or in the appeal of his post-conviction relief
motion. As such, the Court finds that he has procedurally
defaulted Grounds 1 through 4. See Coleman, 501 U.S.
at 731-32; Wemark, 322 F.3d at 1020-21. The Court
may, therefore, reach the merits of Petitioner's Grounds
1 through 4 only if Petitioner can make a showing of cause
and prejudice, or demonstrate “that the failure to
consider the claims will result in a fundamental miscarriage
of justice.” Coleman, 501 U.S. at 750.
support of Grounds 1 through 4, Petitioner does assert that
he was innocent of the charges against him. (ECF 1 at 5,
7-10). He supports this claim only with his own declarations;
he does not suggest any new evidence which would support his
assertion of innocence. As stated above, such a bare
assertion of innocence is insufficient to excuse a procedural
default. See Sweet, 125 F.3d at 1152 n.9.
construing Petitioner's Petition, Petitioner also asserts
ineffective assistance of appellate counsel should excuse his
procedural default of Grounds 1 through 4, as he states that
his court appointed lawyer would not raise the issue of
Ground 1 on appeal (ECF 1 at 6); that he did not raise the
issue of Ground 2 on appeal because his “State
appointed counsel was working with the State to violate [his]
rights” (ECF 1 at 7); that State appointed counsel
would not raise the issue of Ground 3 on appeal (ECF 1 at 9);
and that he took Ground 4 “as far as [his] State
appointed attorney would take it” (ECF 1 at 10).
regard to ineffectiveness of counsel as grounds to excuse
procedural default, “[i]neffective assistance of trial
or appellate counsel may be cause excusing a procedural
default.” Williams v. Kemna, 311 F.3d 895, 897
(8th Cir. 2002) (citing Murray v. Carrier, 477 U.S.
478, 491-92 (1986)). “However, in order to urge
ineffective assistance as cause excusing a procedural
default, the federal habeas petitioner must have properly
raised the ineffectiveness claim in state court.”
Williams, 311 F.3d at 897 (citing Edwards v.
Carpenter, 529 U.S. 446, 450-53 (2000); Tokar v.
Bowersox, 198 F.3d 1039, 1051 n.13 (8th Cir.
1999)). Petitioner did argue, before the motion court and the
Missouri appellate court that direct appeal counsel was
ineffective for failing to argue that there was insufficient
evidence to establish that the substance Petitioner delivered
was a controlled substance and for failing to argue that
Petitioner's trial counsel was ineffective for failing to
introduce evidence that the police investigated Petitioner
before he was arrested and charged in the underlying criminal
case. (ECF 9.8).
error that results in a procedural default' is not cause
[to excuse procedural default] unless the attorney's
performance was constitutionally deficient.”
Interiano v. Dormire, 471 F.3d 854, 857
(8th Cir. 2006) (quoting Armstrong v.
Iowa, 418 F.3d 924, 927 (8th Cir. 2005) (additional
citation omitted). The Supreme Court held, in Martinez v.
Ryan, 132 S.Ct. 1309, 1320 (2012), that post-conviction
counsel's failure to present a claim may be cause to for
procedural default where there is a reasonable probability
that, had post-conviction counsel raised the claim,
“the proceedings would have gone differently, ”
but that “[a] finding of cause and prejudice does not
[necessarily] entitle the prisoner to habeas relief. It
merely allows a federal court to consider the merits of a
claim that otherwise would have been procedurally
defaulted.” With these principles in mind, the Court
will address the merits of Petitioner's Grounds 1 through
4. See Martinez, 132 S.Ct. at 1320.
§ 2244(d)(1) establishes a 1-year limitation period on
petitions filed pursuant to § 2254. Petitioner's
§ 2254 Petition is timely filed.
Antiterrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254 (AEDPA), applies to all petitions for
habeas relief filed by state prisoners after this
statute's effective date of April 24, 1996. Lindh v.
Murphy, 521 U.S. 320, 326-29 (1997). In conducting
habeas review pursuant to § 2254 a federal court is
limited to deciding whether decisions of state courts were
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1).
“‘Federal law, as determined by the Supreme
Court,' refers to ‘the holdings, as opposed to the
dicta, of [the Supreme] Court's decisions.'”
Evenstad v. Carlson, 470 F.3d 777, 782-83
(8th Cir. 2006) (quoting Williams v.
Taylor, 529 U.S. 362, 412 (2000)). To obtain habeas
relief, a habeas petitioner must be able to point to the
Supreme Court precedent which he thinks the state courts
acted contrary to or applied unreasonably. Evenstad,
470 F.3d at 783 (citing Buchheit v. Norris, 459 F.3d
849, 853 (8th Cir. 2006); Owsley v.
Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000)). Thus,
where there is no federal law on a point raised by a habeas
petitioner, a federal court cannot conclude either that a
state court decision is “‘contrary to, or
involved an unreasonable application of, clearly established
Federal law' under 28 U.S.C. § 2254(d)(1).”
Evenstad, 470 F.3d at 784. “When federal
circuits disagree as to a point of law, the law cannot be
considered ‘clearly established'” under 28
U.S.C. § 2254(d)(1). Id. at 783 (citing
Tunstall v. Hopkins, 306 F.3d 601, 611
Williams,529 U.S. 362, the Supreme Court set forth
the requirements for federal courts to grant writs of habeas
corpus to state prisoners under § 2254. The Court held
that “§ 2254(d)(1) places a new constraint on the
power of a federal habeas court to grant a state
prisoner's application for writ of habeas corpus with
respect to claims adjudicated on the merits in the state
court.” Id. at 412. The Court ...