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Smith v. Villmer

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

July 20, 2018

EDDIE SMITH, Petitioner,
v.
TOM VILLMER, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         Petitioner filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 [Doc. No.1] on May 14, 2015. On July 16, 2015, Respondent filed his Response to the Court's Order to Show Cause Why Relief Should Not be Granted [Doc. No. 10], based upon the Petition filed on May 14, 2015. Pursuant to Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts, this Court has determined that there are no issues asserted that give rise to an evidentiary hearing and therefore one is not warranted. For the reasons explained below, the Response to the Order to Show Cause Why Relief Should not be Granted is well taken and the petition will be denied.

         Procedural Background

         Petitioner was charged with one count of enticement of a minor and one count of attempted statutory rape in the first degree. The matter was tried and a jury found Petitioner guilty of both counts.

         Thereafter, Petitioner took appeal to the Missouri Court of Appeals. There he asserted four points of error by the trial court: 1) failure to exclude evidence of text messages sent to individuals (including messages sent to an officer pretending to be D.P.) other than D.P. because only the texts sent to D.P. were relevant; 2) submitting verdict directors that allowed the jury to find him guilty based on messages sent to an officer pretending to be D.P.; 3) overruling his objections to the admission of the text messages and D.P.'s cell phone because an inadequate foundation had been laid and the messages had been tampered with by deleting certain messages; and 4) denying Smith's motions for continuance. There was no assertion of a due process violation, or that the deletion of certain text messages represented the destruction of exculpatory evidence related to the claim of inadmissibility of the text messages. The Missouri Court of Appeals affirmed the conviction for enticement of a child. It, however, reversed the conviction for attempted statutory rape in the first degree, concluding that the evidence only supported the lesser-included offense of statutory rape in the second degree. The case was remanded for resentencing on the lesser-included offense of statutory rape in the second degree.

         The relevant amended State post-conviction motion filed by Petitioner pursues three claims: 1) trial counsel was ineffective for failing to allege that Petitioner's conviction for both offenses violated the Double Jeopardy Clause; 2) appellate counsel was ineffective for not challenging the denial of the motion to suppress evidence and motion to suppress statements on direct appeal; and 3) trial counsel was ineffective for advising Smith to waive his right to jury sentencing after the remand of the attempted statutory rape count for resentencing. Curiously enough, Petitioner did not assert any claim that trial or appellate counsel was ineffective for not presenting evidence in support of an entrapment defense. On appeal of the unfavorable post-conviction motion ruling it was only alleged that trial counsel was ineffective for not raising the double jeopardy issue and that appellate counsel was ineffective for not challenging the denial of the motion to suppress.

         Standard of Review

         The 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 the statute's effective date of April 24, 1996. When reviewing a claim that has been decided on the merits by a state court, AEDPA limits the scope of judicial review in a habeas proceeding as follows:

An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim -
(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).

         In construing AEDPA, the United States Supreme Court, in Williams v. Taylor, held that:

Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts. Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from ...

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