United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Petition of Antonio Rice
for a Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. The Petition is fully briefed and ready for
Antonio Rice ("Petitioner" or "Rice") is
currently incarcerated at the South Central Correctional
Center ("SCCC") located in Licking, Missouri
pursuant to the judgment and sentence of the Circuit Court of
St. Charles County, Missouri. (Resp't's Ex. D pp.
108-111, ECF No. 9-4) On November 5, 2010, a jury found
Petitioner guilty of one count of first degree robbery, one
count of first degree assault, and two counts of armed
criminal action. (Id. at pp.100-03, 108) On January
12, 2011, the court sentenced him to concurrent terms of 16
years on the robbery conviction, 18 years on one conviction
of armed criminal action, life imprisonment on the assault
conviction, and 21 years on the other conviction of armed
criminal action. (Id. at pp. 108-111) Petitioner
filed a direct appeal, and on October 9, 2012, the Missouri
Court of Appeals affirmed the judgment of the trial court.
(Resp't's Ex. E, ECF No. 9-5) Petitioner then filed
a pro se Motion to Vacate, Set Aside, or Correct
Judgment or Sentence pursuant to Missouri Supreme Court Rule
29.15 on January 7, 2013. (Resp't's Ex. F pp. 8-21,
ECF No. 9-6) Appointed counsel filed an amended Rule 29.15
motion on September 16, 2013. (Id. at pp. 22-33) On
November 19, 2014, the motion court denied Petitioner's
motion for post-conviction relief. (Id. at pp.
34-40) The Missouri Court of Appeals affirmed the judgment of
the motion court in a decision dated October 20, 2015.
(Resp't's Ex. I, ECF No. 9-9) On January 11, 2016,
Petitioner filed the present petition for habeas relief in
federal court. (ECF No. 1)
18, 2009, the victim ("Victim") spent the night at
a friend's house with Petitioner Antonio Rice present.
Victim had approximately $30, 000 in his possession. The
following day, Victim and Rice went out for dinner and then
to another man's house in St. Louis, Missouri to smoke
marijuana. Victim wanted to leave and asked Rice for a ride
home. Rice agreed to take Victim home but wanted to get some
marijuana from his uncle first. Rice, Victim, and a third man
drove to a location in St. Louis where they met Curtis Selvey
("Selvey") and Selvey's father, who were
Rice's cousin and uncle, respectively. Rice and Victim
drove the third man home then returned to pick up Selvey,
after which the three men, Rice, Victim, and Selvey, drove
toward St. Charles, Missouri.
the drive, Rice asked to use Victim's cell phone because
Rice's cell phone was dead. After driving around St.
Charles for five or 10 minutes, Rice stopped in a residential
neighborhood. Victim asked for his cell phone, and instead of
retrieving the cell phone, Rice reached under the car seat,
picked up a gun, and pointed it at Victim. Rice demanded that
Victim hand over the bag containing the money. Selvey told
Victim to give the bag containing the money to Rice, then
punched Victim in the mouth. Victim "gave up" and
tried to exit the vehicle, and Rice shot him multiple times
in the back as Victim ran away. Victim collapsed to the
ground, but Rice continued to shoot at Victim until porch
lights came on. Rice got back in the car and drove away with
11:15 p.m., some neighborhood residents heard the shots and
ran outside to see what was happening. They saw Rice's
vehicle and heard Victim yell, "Help! I've been
shot!" Victim told one resident that Rice had shot him.
One bullet went through Victim's back and stomach,
injuring his small intestine and spine, and passing close to
his aorta. Another bullet went through Victim's hip,
shattering his femur. Victim lost a large amount of blood,
underwent three surgeries, and was confined to a wheelchair
for six months.
the police investigation, Victim identified both Rice and
Selvey. Victim stated that Rice shot him and Selvey robbed
him. Rice was charged for acting in concert with Selvey to
commit the armed robbery and first degree assault of Victim.
Rice and Selvey were charged separately. However, the trial
court later granted the State's motion to join Rice and
Selvey's cases for trial. Rice opposed joinder of the
cases because Selvey had a history of gang involvement and
Rice did not.
trial, Selvey testified that he did not see Rice on June 19,
2009 and that was with his grandmother and his father at
different times of the day and evening. Cell phone tower
records linked to Selvey's prepaid cell phone number did
not corroborate his story. Rice did not present any evidence.
During the trial, the judge instructed the jury to give
separate consideration to each defendant and each count. The
jury found Rice guilty, and the trial court sentenced Rice in
accordance with the jury's recommended punishment.
Petition, Rice raises nine grounds for federal habeas
relief. These grounds are as follows:
(1) The trial court abused its discretion in granting the
State's motion to join Rice's trial with co-defendant
(2) Trial counsel was ineffective for failing to object to
the State's improper closing argument regarding
Rice's future danger to the public;
(3) Trial counsel was ineffective for failing to file a
motion to sever Rice's trial from Selvey's trial;
(4) Trial counsel was ineffective for failing to move for a
change of venue;
(5) Trial counsel was ineffective for failing to move for a
mistrial during the cross examination of Doral Peoples by
(6) Trial counsel was ineffective for failing to cross
examine Seth Hutcherson regarding inconsistencies in his
(7) Appellate counsel was ineffective for failing to raise
the claim of trial court error on direct appeal with respect
to the trial court's admission of evidence concerning
(8) Appellate counsel was ineffective for failing to raise a
claim of trial court error in sustaining the State's
objection to Rice's attorney's cross examination of
(9) Trial counsel was ineffective for failing to properly
prepare and investigate Rice's case.
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 record).
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); Rousan 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) (citation
omitted). "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