United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE
matter is before the Court on Arthur Jones's Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody. (ECF No. 1) Because this Court has
determined that Jones's claims are inadequate on their
face and the record affirmatively refutes the factual
assertions upon which his claims are based, this Court
decides this matter without an evidentiary
is currently incarcerated at the Eastern Reception Diagnostic
and Correctional Center pursuant to the judgment and sentence
of the Circuit Court of the City of St. Louis, Missouri. A
jury found him guilty of second-degree assault on a law
enforcement officer and armed criminal action. The circuit
court sentenced Jones to concurrent sentences of fifteen
years and life, respectively. He appealed the judgment to the
Missouri Court of Appeals, which affirmed his judgment and
conviction on December 17, 2013 in an unpublished memorandum
order. (ECF No. 1-2) Jones then filed a Motion to Vacate, Set
Aside, or Correct Judgment or Sentence pursuant to Missouri
Supreme Court Rule 29.15, which was denied without an
evidentiary hearing. (ECF No. 1-3) On October 6, 2015, the
Missouri Court of Appeals affirmed the judgment of the motion
court. (ECF No. 1-4)
March 2, 2016, Jones filed the instant petition for habeas
relief in federal court. Pursuant to the Case Management
Order (ECF No. 4), Petitioner had 60 from the date Respondent
filed his Response within which to file a reply if he chose.
Respondent filed his Response on April 21, 2016, thereby
making any reply from Petitioner due on June 20, 2016. On May
23, Petitioner moved for a 30-day extension. (ECF No. 7) The
Court granted his motion up to and including July 21, 2016.
(ECF No. 8) Petitioner did not file any reply. As the Court
indicated in the Case Management Order, the right to file a
reply shall be waived if a petitioner fails to timely file
such a reply. See Rule 5(e) of the Rules
Governing § 2254 Cases. Consequently, the Court will
rule on the motion without a reply from Petitioner.
the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
federal courts review state court decisions under a
deferential standard. Owens v. Dormire, 198 F.3d
679, 681 (8th Cir. 1999). "[A] district court shall
entertain an application for a writ of habeas corpus . . .
only on the ground that [the petitioner] is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). Further, a
federal court may not grant habeas relief unless the claim
adjudicated on the merits in state court "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."
Owens, 198 F.3d at 681 (quoting 28 U.S.C. §
2254(d)(1)). Findings of fact made by a state court are
presumed to be correct, and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). See also Gee v. Groose,
110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual
findings presumed to be correct where fairly supported by the
the 'contrary to' clause, a federal habeas court may
grant the writ 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 Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor,
529 U.S. 362, 412-413 (2000). With regard to the
"unreasonable application" clause, "a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case." Id.
at 413; see also Bucklew v. Luebbers, 436 F.3d 1010,
1016 (8th Cir. 2006); Roman v. Roper, 436 F.3d 951,
956 (8th Cir. 2006). In other words, "a federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather that application must also
be unreasonable." Williams, 529 U.S. at 411.
preserve a claim for federal habeas review, a petitioner must
present the claim to the state court and allow that court the
opportunity to address petitioner's claim. Moore-El
v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006).
"Where a petitioner fails to follow applicable state
procedural rules, any claims not properly raised before the
state court are procedurally defaulted." Id. A
federal court will consider a defaulted habeas claim
"only where the petitioner can establish either cause
for the default and actual prejudice, or that the default
will result in a fundamental miscarriage of justice."
specifically identifies two grounds for this federal habeas
petition, both of which are based on alleged ineffective
assistance of counsel: (1) trial counsel was ineffective in
failing to object to the "hammer" instruction to
the jury (ECF No. 1, at 7); and (2) trial counsel was
ineffective in failing to introduce the t-shirt Jones
allegedly wore when he was arrested (Id. at 8).
Jones's petition also asserts a third and fourth ground
for relief in which he simply states: "(See attached
complaint dated May 26, 2015)." (ECF No. 1-4, at 7; ECF
No. 1, at 11) Respondent argues the state appellate
court's previous denial of Jones's claims of
ineffective assistance of trial counsel is reasonable and
entitled to deference under the AEDPA. Further, Respondent
contends Jones's third and fourth grounds do not comply
with § 2254 Rule 2(c)'s requirements and are
non-cognizable claims of ineffective assistance of
post-conviction appellate counsel.
first claim, Jones argues his trial counsel was ineffective
in not objecting to the hammer instruction given to the jury.
Had his counsel objected, Jones contends the verdict would
have been different.
support an ineffective assistance of counsel claim, a
convicted movant must first show "that his counsel's
performance was deficient, and that he suffered prejudice as
a result." Paul v. United States,534 F.3d 832,
836 (8th Cir. 2008) (citing Strickland v.
Washington,466 U.S. 668, 687 (1984)). The movant must
also establish prejudice by showing "there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694; Malcom v. Houston,518 F.3d 624, 626 (8th Cir.
2008). A reasonable probability is less than "more