United States District Court, E.D. Missouri, Eastern Division
SEARL L. DUNN, Petitioner,
JASON LEWIS, Respondent.
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE 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 Petitioner Searl L. Dunn. (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. 5). After reviewing the case, the Court has
determined Petitioner is not entitled to relief. As a result,
the Court will DENY the Petition and
DISMISS the case.
November 7, 2012, Petitioner was convicted by a jury on one
count of the unclassified felony of Attempted Enticement of a
Child in the Circuit Court of the County of St. Louis. (Docs.
9 at 378; 9-1 at 20, 74-76.) On December 17, 2012, the
Circuit Court sentenced Petitioner, a prior offender, to a
term of thirty years in prison to be served concurrently with
any and all sentences Petitioner was serving in the Missouri
Department of Corrections. (Doc. 9 at 384.) Petitioner
appealed the judgment, raising two claims:
(1) The trial court erred in overruling Petitioner's
motion for judgment of acquittal at the close of all evidence
and imposing judgment and sentence against him for the
unclassified felony of attempted enticement of a child
because none of the communications made by Petitioner to B.S.
were sufficient to constitute a substantial step toward the
enticement of a child; the State failed to prove
Petitioner's purpose in making these communications was
to entice B.S. to engage in sexual conduct.
(2) The trial court abused its discretion in admitting
references in the interrogation video to Petitioner viewing
pornography on the internet because these statements were
more prejudicial than probative since many people find
pornography greatly offensive, and statements that Petitioner
watches pornography on the internet were not necessary to
establish any element of the charged offense and
inappropriately colored the way the jurors viewed the rest of
the evidence in the case.
(Doc. 6-1 at 20-21.) On October 22, 2013, the Missouri Court
of Appeals affirmed Petitioner's conviction and sentence
on direct appeal. (Doc. 6-3; State v. Dunn, 411
S.W.3d 872 (Mo. Ct.App. 2013).)
December 6, 2013, Petitioner filed a Motion to Vacate, Set
Aside or Correct the Judgment or Sentence under Missouri
Supreme Court Rule 29.15. (Doc. 9-2 at 3.) On March 18, 2014,
with the assistance of counsel, Petitioner filed an Amended
Motion to Vacate, Set Aside or Correct the Judgment or
Sentence and Request for Evidentiary Hearing. (Id.
at 4, 10- 25.) The post-conviction relief court, without
conducting an evidentiary hearing, denied Petitioner's
post-conviction motion on July 7, 2014. (Doc. 9-2 at 26-30.)
Petitioner filed an appeal raising the following one issue:
(1) The motion court clearly erred in denying
Petitioner's Rule 29.15 motion for post-conviction relief
without an evidentiary hearing because trial counsel was
ineffective for failing to request that the court instruct
the jury on entrapment since under Missouri law, an
entrapment is perpetuated if a law enforcement officer, for
the purpose of obtaining evidence of the commission of an
offense, solicits, encourages, or otherwise induces another
person to engage in illegal conduct when he was not ready or
willing to engage in such conduct; and had the jury had the
option of finding that the police solicited, encouraged, or
otherwise induced Petitioner to engage in conduct when he was
not ready and willing to engage in such conduct, there is no
reasonable likelihood the jury would have so found here.
(Doc. 6-4 at 16.) On August 11, 2015, the Missouri Court of
Appeals affirmed the dismissal of Petitioner's
post-conviction relief motion. (Doc. 6-6; Dunn v.
State, 467 S.W.3d 406, 407 (Mo.Ct. App. 2015).)
February 4, 2016, Petitioner filed his Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody. (Doc. 1.) Petitioner raises the following six
grounds for relief:
(1) The trial court erred in failing to grant
Petitioner's motion for judgment of acquittal because the
state failed to prove the elements of the crime since there
was no substantial step toward enticement (Doc. 1 at 16);
(2) The trial court abused its discretion in admitting
references in the interrogation video to Petitioner's
viewing of pornography on the internet because those
statements were more prejudicial than probative (id.
(3) The motion court erred in denying Petitioner's Rule
29.15 post-conviction claim that trial counsel was
ineffective for failing to request the court to instruct the
jury on entrapment (id. at 17-18);
(4) The trial court erred in overruling Petitioner's
motion to strike for cause Juror 35, Mary Eagan-Grapsas, for
cause (id. at 18-19);
(5) Trial counsel was ineffective for failing to investigate
and call Officer Carey, who would have testified Petitioner
was originally investigated for the offense of
“harassment” (id. at 19-20); and
(6) The accumulation of errors in Petitioner's case
violated his right to due process (id. at 20).
filed a Response to Order to Show Cause on March 28, 2016.
(Doc. 6.) Petitioner did not file a reply.
the habeas setting, a federal court is bound by the
AEDPA to exercise only limited and deferential
review of underlying state court decisions.”
Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003).
Under this standard, a federal court may not grant relief to
a state prisoner unless the state court's adjudication of
a claim “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 “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).
court decision is contrary to clearly established Supreme
Court precedent if “the state court arrives at a
conclusion opposite to that reached by [the] Court on a
question of law or . . . decides a case differently than
[the] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). A state court decision is an unreasonable application
of clearly established federal law if it “correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case.” Id. at 407-08. Finally, a state court
decision involves an unreasonable determination of the facts
in light of the evidence presented in the state court
proceedings only if it is shown that the state court's
presumptively correct factual findings do not enjoy support
in the record. 28 U.S.C. § 2254(e)(1); Ryan v.
Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
Grounds 4 and 5 are procedurally defaulted and may not give
rise to federal habeas relief. To 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. 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. “[T]he
existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective
factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule.”
Murray v. Carrier, 477 U.S. 478, 488 (1986).
concedes he failed to raise Grounds 4 and 5 before the state
courts. (Doc. 1 at 19, 20.) Citing Martinez v. Ryan,
566 U.S. 1 (2012), Petitioner suggests his procedural default
of these claims should be excused because of direct appeal
counsel's and post-conviction counsel's
ineffectiveness in failing to present them. (Id.)
The Supreme Court created a “narrow exception”
and held in Martinez v. Ryan that:
under state law, claims of ineffective assistance of trial
counsel must be raised in an initial review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
566 U.S. at 9, 17. However, Martinez does not apply
in this instance.
4: Trial Court's Error in Overruling Petitioner's
Motion to Strike Juror 35 for Cause
argues that direct appeal counsel was ineffective in failing
to present Ground 4. (Doc. 1 at 19.) However, the narrow
Martinez exception only applies to ineffective
assistance of trial counsel claims, and it is not extended to
ineffective assistance of appellate counsel claims.
Davila v. Davis, 137 S.Ct. 2058, 2070 (2017);
see also Dansby v. Hobbs, 691 F.3d 934, 937 (8th
Cir. 2012) (ineffective assistance of post-conviction counsel
cannot constitute “cause” to excuse a procedural
default of a claim of ineffective assistance of appellate
counsel under narrow Martinez exception). Therefore,
Martinez cannot be used to establish cause to excuse
the procedural default of Ground 4, as Petitioner cannot
raise an ineffective assistance of appellate counsel claim at
this stage. As such, the Court will deny Ground 4 as
5: Trial Counsel's Failure to Investigate and Call
the remaining procedurally defaulted claim, Ground 5, the
Court finds that Martinez does not apply. First, the
Court finds that post-conviction counsel did not provide
Petitioner with ineffective assistance of counsel. Petitioner
states he included this Ground in his original pro
se Rule 29.15 motion and notes post-conviction counsel
failed to present it in the amended motion. (See
Doc. 1 at 19-20.) He does not provide the Court with any
suggestion of purported ineffectiveness other than
counsel's alleged failure to present the issue in the
post-conviction amended motion. (Id.) However, the
presumption of effective assistance of counsel can generally
only be overcome when the ignored issues are clearly stronger
than those presented. Link v. Luebbers, 469 F.3d
1197, 1205 (8th Cir. 2006). In this case, upon review of the
record and addressed in more detail below, the Court finds
that post-conviction counsel determined that the claim
presented in the amended motion was the most meritorious and
one that could be supported. Therefore, “applying a
heavy measure of deference to counsel's judgments,
” post-conviction counsel's decision not to include
Ground 5 in the amended motion “falls within the wide
range of reasonable professional assistance” under
Strickland's deferential ...