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Dunn v. Lewis

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

February 21, 2019

SEARL L. DUNN, Petitioner,
v.
JASON LEWIS,[1] Respondent.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. BACKGROUND

         On 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]
(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).)

         On 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).)

         On 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. at 16-17);
(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).

         Respondent filed a Response to Order to Show Cause on March 28, 2016. (Doc. 6.) Petitioner did not file a reply.

         II. DISCUSSION

         “In the habeas setting, a federal court is bound by the AEDPA[3] 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).

         A state 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).

         A. Procedural Default

         Petitioner's 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).

         Petitioner 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:

         Where, 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.

         Ground 4: Trial Court's Error in Overruling Petitioner's Motion to Strike Juror 35 for Cause

         Petitioner 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 procedurally defaulted.[4]

         Ground 5: Trial Counsel's Failure to Investigate and Call Officer Carey

         As for 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 ...


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