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Reed v. Steele

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

March 1, 2019

ARTHUR REED, Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM AND ORDER

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on the Petition of Arthur Reed for a writ of habeas corpus under 28 U.S.C. § 2254.

         I. Procedural History

         Reed is 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.

         In his 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.)

         On February 8, 2011, the Missouri Court of Appeals affirmed the judgment of the trial court. (Doc. 15-5.)

         Reed 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 149-62.

         In his 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.)

         Reed 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.)

         Respondent 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.

         II. Facts[1]

         On 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 alley.

         Officer 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 multiple times.

         Officer 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.

         The 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.

         III. Standard of Review

         A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

         (d) An 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).

         The Supreme Court construed § 2254(d) in Williams v. Collins, 529 U.S. 362 (2000).

         With 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.

         IV. Petitioner's Claims

         Reed raises ten grounds for relief. The undersigned will discuss these claims in turn.

         A. Ground One

         In his 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.

         The 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.

         Reed 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.)

         In 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).

         The 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 ...


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