United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Kelvin Newlon's Petition
under 28 U.S.C. §2254 for Writ of Habeas Corpus By a
Person in State Custody (ECF No. 1 ("Motion")).
Because this Court has determined that Newlon's claims
are inadequate on their face and the record affirmatively
refutes the factual assertions upon which Newlon's claims
are based, this Court decides this matter without an
August 5, 2010, following a trial by jury in the Circuit
Court of the City of St. Louis, Missouri, Kelvin Newlon
("Newlon") was found guilty of sexual misconduct
involving a child. The incident involved Newlon forcing his
stepdaughter to undress, fondling her, and then masturbating
and ejaculating on her. The court sentenced him to seven
years' imprisonment in the Missouri Department of
to 28 U.S.C. §2254, a district court "shall
entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. §2254(a). "[I]n a
§2254 habeas corpus proceeding, a federal court's
review of alleged due process violations stemming from a
state court conviction is narrow." Anderson v.
Goeke, 44 F.3d 675, 679 (8th Cir. 1995). "[A]n
application for a 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). '"A state
court's decision is contrary to ... clearly established
law if it applies a rule that contradicts the governing law
set forth in [Supreme Court] cases or if it confronts a set
of facts that are materially indistinguishable from a
[Supreme Court] decision ... and nevertheless arrives at a
[different] result."' Cagle v. Norris, 474
F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v.
Esparza, 540 U.S. 12, 15-16 (2003)). The Supreme Court
has emphasized the phrase "Federal law, as determined by
the Supreme Court," refers to "the holdings, as
opposed to the dicta, of this Court's decisions,"
and has cautioned that §2254(d)(1) "restricts the
source of clearly established law to [the Supreme]
Court's jurisprudence." Williams, 529 U.S.
at 412. A State court "unreasonably applies"
federal law when it "identifies the correct governing
legal rule from [the Supreme] Court's cases but
unreasonably applies it to the facts of the particular state
prisoner's case," or "unreasonably extends a
legal principle from [the Supreme Court's] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply." Williams, 529 U.S. at 407. A State
court decision may be considered an unreasonable
determination "only if it is shown that the state
court's presumptively correct factual findings do not
enjoy support in the record." Ryan v. Clarke,
387 F.3d 785, 791 (8th Cir. 2004) (citing 28 U.S.C. §
first claims, Newlon raises the claim of ineffective
assistance of counsel because counsel the trial counsel
followed the trial court's advice about how to
cross-examine the victim about her earlier statements. (ECF
No. 1 at 5).
support an ineffective assistance of counsel claim, a
convicted movant must first show "that his counsel's
performance was deficient, and that he suffered prejudice as
a result." Paul v. United States, 534 F.3d 832,
836 (8th Cir. 2008) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). The movant must
also establish prejudice by showing "there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694; Malcom v. Houston, 518 F.3d 624, 626 (8th Cir.
2008). A reasonable probability is less than "more
likely than not," Kyles v. Whitley, 514 U.S.
419, 434 (1995), but more than a possibility. White v.
Roper, 416 F.3d 728, 732 (8th Cir. 2005). A reasonable
probability "is a probability sufficient to undermine
confidence in the outcome." Strickland, 466
U.S. at 694. "The applicable law here is
well-established: post-conviction relief will not be granted
on a claim of ineffective assistance of trial counsel unless
the petitioner can show not only that counsel's
performance was deficient but also that such deficient
performance prejudiced his defense." United States
v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir. 2005)
presented this claim in his 29.15 litigation. The motion
court found the claim was meritless. See ECF No.
19-6 at 41-44. Newlon, however, did not present this claim on
his post-conviction appeal. (ECF No. 19-8). The Court holds
that Newlon's first ground for relief is defaulted
because he did not brief this claim in his post-conviction
appeal. As a result this claim is barred. Sweet v.
Delo, 125 F.3d 1144, 1151 (8th Cir. l997)("If the
petitioner has "failed to follow applicable state
procedural rules in raising the claims, he is procedurally
barred from raising them in a federal habeas action,
regardless of whether he has exhausted his state-court
remedies.")(internal citation omitted). Likewise,
Newlon's habeas petition does not show good cause and
actual prejudice sufficient to allow this Court to review
this claim. Murray v. Carrier, All
U.S. 478, 492 (1986) (must show good cause
and actual prejudice). Therefore, the Court holds that it is
procedurally barred from reviewing this claim.
the Court holds that Newlon's claim is meritless. The
Rule 29.15 trial court determined this claim was meritless.
(ECF No. 19-6 at 41-44). The Rule 29.15 court noted that
Newlon offered no evidence at his hearing regarding this
claim. (ECF No. 19-6 at 44). The 29.15 court noted that the
trial court "did not preclude counsel from questioning
[the] victim about what she saw or what she said; the Court
told counsel she could not ask [the] victim what other person
wrote down." (ECF No. 19-6 at 44). The 29.15 court
[I]t is mere speculation that questioning the State's
witnesses further would have elicited testimony that [the]
victim said nothing about movant touching himself in front of
her. It is at least as likely they would have confirmed she
told or that the incident never camp up. Pursing this line of
questioning could have led to highly prejudicial testimony
from the State's witnesses.
(ECF No. 19-6 at 44). Newlon failed to demonstrate that a
different strategy would have produced a different result.
"The defendant must show that because of counsel's
error, there is a reasonable probability that the result of
the proceeding would have been different. 'A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.'" Odemv.
Hopkins,382 F.3d 846, 850 (8th Cir. 2004) (quoting
Strickland, 466 U.S. at 694, 104 S.Ct. 2052);
Shaw v. Dwyer,555 F.Supp.2d 1000, 1008 (E.D. Mo.
2008). Newlon has not shown that his ...