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Powell v. Morriss

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

July 16, 2018

ANTONIO POWELL, Petitioner,
v.
KELLY MORRISS, [1]Respondent.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Doc. 6). After reviewing the case, the Court has determined that Petitioner is not entitled to relief. As a result, the Court will DENY the Petition and DISMISS the case.

         I. BACKGROUND

         On November 15, 2011, Petitioner was convicted by a jury in the Circuit Court of St. Louis City, of one count of trafficking in drugs in the second degree (Doc. 7-5 at 4). On January 12, 2012, the Circuit Court sentenced Petitioner to a term of fifteen years in the custody of the Missouri Department of Corrections (Id.). Petitioner appealed the judgment on September 25, 2012, raising two claims:

(1) The trial court erred by allowing the State to make an adverse inference about “Barbra Johnson” not being called as a witness for the defense; and
(2) The trial court erred by ordering jurors to continue to deliberate after the jurors explicitly told the court, by note, that they would be unable to come to a unanimous decision even after further deliberation.

(Doc. 7-2). On March 12, 2013, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence on direct appeal (Doc. 7-6; State v. Powell, 393 S.W.3d 617 (Mo.Ct.App. 2013)).

         On June 27, 2013, Petitioner filed a pro se motion for post-conviction relief (Doc. 7-7 at 5-10). On October 14, 2013, with the assistance of counsel, Petitioner filed an amended motion for post-conviction relief (Id. at 14-23). On March 5, 2014, without an evidentiary hearing, the motion court denied Petitioner's amended motion (Id. at 24-27). On July 7, 2014, Petitioner, with the assistance of counsel, filed an appeal raising one claim:

(1) The motion court clearly erred in denying Petitioner's request for relief without a hearing because he alleged facts not conclusively refuted by the record which, if proven, would entitle him to relief in that he was denied his right to effective assistance of counsel because trial counsel failed to object to an erroneous jury instruction which did not comply with the Notes on Use.

(Doc. 7-8). On February 10, 2015, the Missouri Court of Appeals for the Eastern District affirmed the motion court's denial of the motion (Doc. 7-10; Powell v. State, 454 S.W.3d 417(Mo.Ct.App. 2015)).

         On June 24, 2015, Petitioner filed his Petitioner under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody raising the following three grounds for relief:

(1) The trial judge made coercive statements to the jury when he directed the jury to continue deliberations (Doc. 1 at 5);
(2) Trial counsel was ineffective for failing to object to the judge's allegedly coercive statements and for failing to argue that the drugs in evidence did not weigh enough to satisfy the charge of trafficking drugs in the second degree (Id. at 6); and
(3) Petitioner did not receive an “evidentiary hearing for this case, I was brought to trial after being held in the department ...

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