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Bass v. Payne

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

August 3, 2018

CORDELL G. BASS, Petitioner,
STANLEY PAYNE,[1] Respondent.



         This matter is before the Court on the petition of Petitioner Cordell G. Bass (“Petitioner”) for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Respondent has filed a response in opposition. The parties have consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

         I. Procedural Background

         Petitioner is presently incarcerated at the Eastern Reception Diagnostic and Correctional Center pursuant to the sentence and judgment of the Circuit Court of St. Louis City. Petitioner was charged in the Circuit Court of the City of St. Louis with one count of forcible rape, two counts of forcible sodomy, one count of kidnapping, and one count of assault. (Legal File, ECF No. 13-3, at 13-15) In the Indictment, the State charged Petitioner as a prior and persistent offender based on Petitioner pleading guilty to two felonies in May 1996 in two separate cases: Trafficking in the Second Degree (Cause No. 22951-0004243A) and Unlawful Use of a Weapon (Cause No. 22951-0002436). (Id. at 15-17) On July 12 and 13, 2010, a jury trial was held, and Petitioner testified. (ECF Nos. 13-1 and 2, at 203-13) On July 13, 2010, a jury convicted Petitioner of kidnapping and assault but acquitted him of the forcible rape and sodomy charges. (ECF No. 13-3, at 51-55) The trial court sentenced Petitioner as a prior and persistent offender to two concurrent sentences of eighteen years on each count. Id. at 60-63. On direct appeal, Petitioner challenged the trial court's denial of his motion for judgment of acquittal at the close of the evidence, arguing that the State failed to prove beyond a reasonable doubt he kidnapped C.H. (ECF No. 13-4) The Missouri Court of Appeals affirmed Petitioner's convictions on direct appeal on September 27, 2011. State v. Bass, 349 S.W.3d 473 (Mo.Ct.App. 2011) (ECF No. 13-6).

         Petitioner filed a pro se motion for post-conviction relief under Missouri Rule 29.15. (ECF No.13-7, at 4-16) After appointment of counsel, Petitioner requested an evidentiary hearing and filed an amended post-conviction relief motion in which he alleged the following ineffective assistance of counsel claims: (1) counsel failed to object when the State introduced evidence that Petitioner initially refused to make a statement when questioned by police; (2) counsel failed to object when the State cross-examined him about his prior criminal convictions beyond the permitted scope; and (3) counsel stipulated that Petitioner was a prior and persistent offender. (Id. at 29-44) On June 6, 2014, the motion court denied Petitioner's amended motion and his request for an evidentiary hearing. (Id. at 47-60)

         In his appeal from the denial of post-conviction relief, Petitioner raised the same ineffective assistance of counsel claims that he raised in his amended post-conviction motion. (ECF No.13-8) On March 10, 2015, the Missouri Court of Appeals affirmed the denial of post-conviction relief. State v. Bass, 457 S.W.3d 394 (Mo.Ct.App. 2015) (ECF No. 13-10, at 1-13) Petitioner timely filed this petition for relief pursuant to 28 U.S.C. § 2254 on June 11, 2015. (ECF No. 1)

         II. Factual Background - Trial Evidence

         In the evening of September 29, 2007, C.H., the state's witness, was waiting at the bus stop at Grand and Broadway. (ECF No. 13-2, Tr. II, at 14-16) Petitioner drove to the bus stop and C.H. asked Petitioner for a ride. Id. at 16-19. C.H. testified that she recognized Petitioner having seen him around the Walnut Park neighborhood but she did not know his name. Id. After entering his car, Petitioner drove C.H. against her will to a remote location and directed her to perform oral intercourse. Id. at 20-23. After realizing Petitioner was not armed, C.H. attempted to get out of the car by scratching, kicking, and biting Petitioner. Id. at 23-24. C.H. exited the car, and Petitioner followed and grabbed C.H. by her hair and started hitting her face against the car and biting her right arm. Id. at 24-25, 36. Petitioner placed his penis in C.H.'s rectum and then in her vagina. Id. at 26-27. After C.H. attempted to run away, Petitioner started hitting her with his belt. Id. at 29. After C.H. picked up a rock and hit Petitioner with it, C.H. ran and hid under a truck. Id. at 29. After looking for C.H. and not being able to find her, Petitioner drove away. Id. at 29-30.

         After escaping from Petitioner, C.H. testified that she contacted the police and was taken to the hospital to have a rape test collected. Id. at 34-36, 107-14. Plaintiff received two sutures for her fractured right eye. Id. at 34-35, 113.

         Petitioner testified that although he did not know C.H., he approached C.H. after he saw her sitting on a bench at a filling station, and she agreed to ride with him. Id. at 204-06. After driving a few feet away, Petitioner stopped and exited his car to urinate. As he returned to his car, Petitioner testified that he noticed C.H. rummaging through his arm rest so he hit her several times and punched her in the face, pulled her out of the car, threw C.H to the ground, and then drove away. Id. at 206-07, 209. Petitioner denied that he raped and sodomized C.H. Id. at 210.

         C.H. provided a description of Petitioner to the police, but the police were not able to locate Petitioner until 2009. Id. at 39-40, 74. The DNA analysis showed that Petitioner's DNA was present on C.H.'s nail clippings and on the swab from the bite marks on C.H.'s forearm. Id. at 189-90.

         III. Legal Standard

         When a claim has been adjudicated on the merits in state court proceedings, habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court's determination:

(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 ...

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