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Rice v. Norman

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

March 13, 2019

ANTONIO RICE, Petitioner,
v.
JEFF NORMAN, [1] Respondent.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE UNITED STATES DISTRICT JUDGE.

         This 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 disposition.

         I. Procedural History

         Petitioner 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)

         II. Factual Background[2]

         On June 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.

         During 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 Selvey.

         Around 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.

         During 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.

         At 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.

         III. Petitioner's Claims

         In his Petition, Rice raises nine grounds for federal habeas relief.[3] 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 Selvey's trial;
(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 Selvey's attorney;
(6) Trial counsel was ineffective for failing to cross examine Seth Hutcherson regarding inconsistencies in his testimony;
(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 Cortez Strong;
(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 Selvey; and
(9) Trial counsel was ineffective for failing to properly prepare and investigate Rice's case.

         IV. Legal Standards

         Under 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).

         "Under 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.

         To 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 ...


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