United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the Petition of Arthur Reed for
a writ of habeas corpus under 28 U.S.C. § 2254.
currently incarcerated at the Eastern Reception, Diagnostic
and Correctional Center in Bonne Terre, Missouri, pursuant to
the sentence and judgment of the Circuit Court of St. Louis
City, Missouri. (Doc. 15-4 at 129-32.) On July 7, 2009, a
jury found Reed guilty of second-degree burglary, felony
resisting arrest, misdemeanor stealing, first-degree
trespass, and second-degree property damage. (Doc. 15-1 at
86.) The court sentenced him as a prior and persistent
offender to an aggregate sentence of twenty-four years'
imprisonment. Id. at 107.
direct appeal of his convictions, Reed raised four claims:
(1) the evidence was insufficient to support his conviction
for resisting arrest; (2) the trial court plainly erred in
allowing the State to present hearsay testimony; (3) the
trial court erred in overruling Reed's motions for
judgment of acquittal at the close of the State's case
because the State failed to prove beyond a reasonable doubt
that Reed was guilty of burglary and trespassing; and (4) the
trial court erred in denying Reed's motion for a new
trial because the prosecution withheld favorable material
evidence from the defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963). (Doc. 15-2.)
February 8, 2011, the Missouri Court of Appeals affirmed the
judgment of the trial court. (Doc. 15-5.)
filed a pro se motion for post-conviction relief
under Rule 29.15. (Doc. 15-6 at 6-13.) After appointment of
counsel, an amended post-conviction relief motion and request
for evidentiary hearing was filed. (Doc. 15-7 at 3-25). The
amended motion raised the following claims: (1) trial counsel
was ineffective in inducing Reed to give up his right to
testify; (2) trial counsel was ineffective in failing to
introduce the entire 911 tape; and (3) the State failed to
disclose evidence to Reed in violation of Brady.
Id. The motion court denied Reed's amended
motion after holding an evidentiary hearing. Id. at
appeal from the denial of post-conviction relief, Reed argued
that trial counsel was ineffective in failing to play the
entire 911 call. (Doc. 15-8 at 22.) He also argued that the
State committed a Brady violation. Id. at
24. The Missouri Court of Appeals affirmed the decision of
the motion court. (Doc. 15-10.)
filed the instant Petition on December 4, 2015, in which he
raises the following grounds for relief: (1) the evidence was
insufficient to convict him of resisting arrest; (2) the
evidence was insufficient to show he committed second-degree
burglary and the misdemeanor charges of trespassing,
stealing, and property damage; (3) trial counsel was
ineffective for stipulating with the State not to play the
entire 911 call for the jury; (4) the State violated
Brady; (5) the Missouri Supreme Court erred in
denying his State petition for habeas corpus under Missouri
Supreme Court Rule 91; (6) the “cumulative effect of
all the alleged errors” warrants habeas relief; (7)
trial counsel was ineffective for failing to request new
counsel at a post-trial hearing; (8) trial counsel was
ineffective for failing to object to the prosecutor's use
of an evidence envelope at the post-trial hearing; (9) trial
counsel was ineffective for failing to object to the
admission of Reed's clothes and the hammer used in the
burglary; and (10) trial counsel was ineffective for failing
to impeach Officer Tesreau concerning the evidentiary chain
of custody. (Doc. 1.)
filed a Response to Order to Show Cause, in which he argues
that Grounds Five and Six are not cognizable in federal
habeas review; Grounds Seven, Eight, Nine, and Ten are
procedurally defaulted; and all of Reed's claims fail on
their merits. (Doc. 15.) Reed then filed a Traverse, in which
he provides further argument in support of his claims.
August 25, 2008, Jerry Warden saw Reed attempting to enter an
unoccupied home (the first house). When Reed was unable to
force the door open, he entered a second unoccupied home
under renovation (the second house) and left approximately 30
seconds later holding a hammer. Reed then used the hammer to
pry open the door of the first house. Warden called 911 to
report that a heavyset male wearing shorts and a gray
sweatshirt was breaking into homes. Upon police arrival
shortly thereafter, Reed ran from the first house and into
the road, forcing a car to stop abruptly; and fled down an
Matthew Tesreau followed Reed on foot, responding to reports
of Reed's location. Reed began running when he saw
Officer Tesreau, dressed in uniform, despite orders to stop.
Officer Tesreau caught up with Reed and ordered him at
gunpoint to stop because he was under arrest. Reed complied,
and Officer Tesreau holstered his gun and took out his taser.
When Reed refused to follow Officer Tesreau's order to
get on the ground, Officer Tesreau deployed his taser
Tesreau waited for backup officers before placing Reed under
arrest. The officers took Reed back to the scene of the
robbery, where Warden identified him. Officers found a hammer
just inside the doorway to the first house, and the owner
noted that the door had been forced open and that the hammer
did not belong to him. The owner of the second house also
noted that his door had been damaged, and identified the
hammer as his. Neither owner had given Reed permission to
enter the residences.
jury found Reed guilty of burglary in the second degree,
resisting arrest, stealing under $500, trespassing in the
first degree, and property damage in the second degree. Reed
moved for judgment of acquittal or for a new trial, asserting
that the State had not met its burden of proving each and
every element of its case. The court denied Reed's motion
for a new trial, after holding multiple evidentiary hearings.
Standard of Review
federal court's power to grant a writ of habeas corpus is
governed by 28 U.S.C. § 2254(d), which provides:
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;
(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).
Supreme Court construed § 2254(d) in Williams v.
Collins, 529 U.S. 362 (2000).
respect to the “contrary to” language, a majority
of the Court held that a state court decision is contrary to
clearly established federal law “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme Court] on a question of law” or if the state
court “decides a case differently than [the] Court has
on a set of materially indistinguishable facts.”
Id. at 405. Under the “unreasonable
application” prong of § 2254(d)(1), a writ may
issue if “the state court identifies the correct
governing legal rule from [the Supreme Court's] cases but
unreasonably applies [the principle] to the facts of the
particular state prisoner's case.” Id.
Thus, “a federal habeas court making the
‘unreasonable application' inquiry should ask
whether the state court's application of clearly
established federal law was objectively unreasonable.”
Id. at 410. Although the Court failed to
specifically define “objectively unreasonable, ”
it observed that “an unreasonable application of
federal law is different from an incorrect application of
federal law.” Id. at 410.
raises ten grounds for relief. The undersigned will discuss
these claims in turn.
first ground for relief, Reed argues that the evidence was
insufficient to sustain his conviction of resisting arrest by
fleeing. He argues that the State did not prove that Officer
Tesreau was trying to make an arrest of Reed.
statutory language of the criminal offense of which Reed was
convicted provides, in relevant part, as follows:
A person commits the offense of resisting or interfering with
arrest, detention, or stop if he or she knows or reasonably
should know that a law enforcement officer is making an
arrest or attempting to lawfully detain or stop an individual
or vehicle, and for the purpose of preventing the officer
from effecting the arrest, stop or detention, he or she:
(1) Resists the arrest, stop or detention of such person by
using or threatening the use of violence or physical force or
by fleeing from such officer..
Mo. Rev. Stat. § 575.150.
raised this claim in his direct appeal. The Missouri Court of
Appeals held as follows:
Contrary to Reed's assertion on appeal, Officer Tesreau
did testify at trial that he informed Reed he was under
arrest before Reed fled. Specifically, he testified on
cross-examination that before he tased Reed for the first
time he ‘advised [Reed] to get down on the ground, that
he was under arrest, which [Reed] did not, he did not comply
to [sic].' (Trial Transcript at p. 281.) Accepting this
testimony as true, as we must, there was sufficient evidence
from which a reasonable juror might have found Reed guilty of
resisting arrest. Id. Namely, the evidence
established that Officer Tesreau was attempting to arrest
Reed, that Officer Tesreau-while in uniform-shouted for Reed
to stop because he was under arrest, that Reed fled both when
the police first arrived and also from Officer Tesreau, and
that during Reed's initial flight he ran into the road,
forcing a passing car to stop abruptly in a manner that could
have caused the driver injury. State v. Daws, 311
S.W.3d 806, 808-09 (Mo. banc 2010) (five elements of
resisting arrest are: (1) law enforcement officer is making
or attempting to make a lawful arrest or stop; (2) defendant
knew of or reasonably should have known of law enforcement
officer's lawful attempt; (3) defendant resists by
fleeing; (4) defendant resisted for purpose of thwarting law
enforcement officer's lawful attempt to arrest or stop by
threat of violence or by fleeing; and (5) defendant fled in
manner that created substantial risk of serious physical
injury to another).
(Doc. 15-5 at 7-8.)
reviewing a challenge to a sufficiency of the evidence,
“the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). Accord Parker v. Matthews,
567 U.S. 37, 43 (2012); Cavazos v. Smith, 565 U.S.
1, 7 (2011). “This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. State law
determines the specific elements of the crime at issue.
Fenske v. Thalacker, 60 F.3d 478 (8th Cir. 1995).
The federal habeas court's scope of review is very
limited. The Court “must presume that the trier of fact
resolved all conflicting inferences in the record in favor of
the state” and “must defer to that
resolution.” Whitehead v. Dormire, 340 F.3d
532, 536 (8th Cir. 2003) (quotation marks omitted).
Furthermore, “a state-court decision rejecting a
sufficiency challenge may not be overturned on federal habeas
unless the decision was objectively unreasonable.”
Parker, 567 U.S. at 43 (quotation marks omitted).
Missouri Court of Appeals' decision was not contrary to,
or an unreasonable application of, clearly established
federal law, nor was it based on an unreasonable
determination of the facts in light of the evidence
presented. Consistent with Jackson v. Virginia, the
Missouri Court examined whether the testimony presented at
trial established the elements of the crime as defined under
Missouri law. The only element challenged by Reed is that
Officer Tesreau was attempting to make an arrest. The
Missouri Court of Appeals cited Officer Tesreau's
testimony that he advised Reed to get down on the ground and
that he ...