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Obasogie v. Norman

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

March 18, 2019

OMORUYI NATHANIEL OBASOGIE, Petitioner
v.
JEFFREY NORMAN, et al., Respondent.

          REPORT AND RECOMMENDATION

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court upon the amended petition of Missouri state prisoner Omoruyi Nathaniel Obasogie for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action was referred to the undersigned Magistrate Judge for consideration and a recommended disposition pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, the undersigned recommends the petition for a writ of habeas corpus be denied.

         I. BACKGROUND

         On December 14, 2010, in the Circuit Court of St. Louis County, a jury found petitioner Obasogie guilty of first-degree burglary, second-degree assault, and two counts of armed criminal action. Petitioner was sentenced on February 4, 2011, to 3 terms of 12 years and one term of 7 years, all to be served concurrently.

         Petitioner directly appealed the circuit court judgment, but the Missouri Court of Appeals affirmed without a published opinion. State v. Obasogie, 370 S.W.3d 888 (Mo.Ct.App. 2010). Petitioner then filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. The trial court denied the motion after a hearing, and the Court of Appeals affirmed. Obasogie v. State, 457 S.W.3d 793 (Mo.Ct.App. 2014). On December 7, 2015, petitioner filed his original federal habeas petition.

         The facts supporting the jury's verdict were described by the Missouri Court of Appeals thus when ruling petitioner's motion for post-conviction relief:

At about 1:00 a.m. on November 2, 2009, Movant, Anwar Randle, and an unidentified man broke into a home occupied by Cameron Bass and Kena Coleman, who were asleep at the time. Both Bass and Coleman knew Randle but did not know Movant or the third man. Bass and Coleman awoke, and Coleman went into the hallway to investigate while Bass hid in the bedroom closet. Coleman first saw Randle coming out of a bedroom door. The lights were on in the laundry room and in the kitchen. Coleman then saw Movant and the third man, armed with a small handgun and a shotgun respectively, enter her home through the back door. She screamed at them to get out of her house. Randle shoved Movant into her bedroom. Movant and Randle then entered the bedroom looking for Bass. Movant pointed the handgun at Bass and told him to get out of the closet. Movant fired the gun but struck no one. Bass fled through the closet into an adjacent bedroom. Randle and the unidentified man pursued him and beat him with the butt of a shotgun and a glass bottle. Eventually, the three intruders left.
Bass then called the police. The resulting police dispatch stated that three black males had entered a residence and shots had been fired. A St. Louis County police officer observed three black males, Movant and the other two intruders, driving in the rea. The officer initiated a traffic stop on the vehicle. Movant, who was driving the car, pulled over, and the unidentified man exited and fled on foot. Movant and Randle remained in the car and sped away at high speed. They were later apprehended by multiple police officers in a parking lot.

Obasogie, 457 S.W.3d at 795.

         II. PETITIONER'S GROUNDS FOR FEDERAL HABEAS RELIEF

         Petitioner's amended habeas corpus petition alleges the following grounds for relief:

(1) The trial court erred in overruling petitioner's motions for judgment of acquittal and sentencing petitioner for the felony of burglary in the first-degree when no evidence was presented to prove the use of a dangerous instrument or deadly weapon.
(2) The trial court erred in trying petitioner when the name and possessor of the home allegedly burglarized on the information for the burglary Count 1 did not match the jury instruction for that Count. This also affected the associated armed criminal action charge.
(3) The prosecutor misled and misdirected the jury by misstating the law about the use of a deadly weapon or instrument in a burglary crime, resulting in a violation of due process.
(4) The trial court erred in allowing petitioner to be convicted of armed criminal action in connection with assault in the second-degree.
(5) Petitioner's due process rights were violated by not giving an instruction on assault in the third-degree.
(6) The entire arrest, complaint, and indictment were based on perjured statements and material misrepresentation: namely that one of the victims was the owner of the residence that was burglarized. The State knowingly used this false information and perjured information and testimony to secure petitioner's conviction.
(7) Petitioner's attorney was ineffective for failing to contact witness Anwar Randle, whom petitioner claims was key to his defense and would refute the State's case, and who supplied a declaration dated November 17, 2010.
(8) The trial court erred in finding petitioner guilty of being a prior offender, based on a conviction which resulted in a suspended imposition of sentence, and petitioner's counsel was ineffective for failing to object to the trial court's finding.
(9) The trial court erred in sentencing petitioner to 12 years on burglary in the first-degree, 12 years on the armed criminal action connected to the burglary, 7 years on the assault in the second-degree, and 12 years on the armed criminal action connected with that assault, where petitioner's alleged co-conspirator was acquitted of burglary and sentenced to 5 years on assault in the second-degree, and 7 years on the armed criminal action connected with the assault.
(10) Counsel was ineffective for failing to investigate the victims' credibility and depose them, unlike his co-defendant's counsel.[1]
(11) The trial court lacked the jurisdiction to try and convict petitioner due to its failure to properly arraign petitioner.
(12) Petitioner was never notified nor accorded a proper arraignment and his signature was forged, without his knowledge or consent, on the Arraignment Memorandum. Petitioner was never formally read his charges, informed of the evidence against him, or given the opportunity to request discovery.
(13) Petitioner was denied the disclosure of any and all exculpatory materials. This denial seriously impeded petitioner's right to a fair trial and was a violation of the due process clause. Due to this denial petitioner was unaware of the existence of any evidence against him or any findings at the time of trial.
(14) Prosecuting authorities and officers of the court withheld exculpatory materials as well as other evidence exonerating petitioner. The acts and or omissions of the prosecutor and petitioner's counsel prevented evidence from being used in defense of the accusations against petitioner, resulting in a denial of due process.
(15) Petitioner was prejudiced by the lack of investigation and suggestiveness of prosecutorial procedures, resulting in an irreparable misidentification.
(16) Petitioner's trial counsel was constitutionally ineffective for failing to notify him of an arraignment date, failing to prepare and secure discovery, failing to adequately communicate with petitioner, failing to file any pre-trial motions, failing to investigate the state's witnesses or petitioner's co-defendant, failing to impeach false testimony, failing to object to evidence, failing to inform petitioner that taking the stand would allow the state to bring up his prior convictions, failing to object to the state's questioning about petitioner's prior conviction, allowing the prosecutor to argue evidence not presented at trial, failing to preserve any errors for appeal, failing to challenge the armed criminal action charges, failing to include in his motion for new trial that the evidence was insufficient for burglary in the first degree, failing to request a lesser-included offense instruction on first-degree attempted criminal trespass, failing to prepare jury instructions for the second-degree assault that would clear petitioner of armed criminal action for that court, failing to include this argument in his motion for new trial, and failing to request or submit an instruction on mistaken identity or irreparable misidentification.
(17) The accumulation of claims-Ground Three, Ground Six, Ground Seven, Ground Twelve, Ground Thirteen, Ground Fourteen, Ground Fifteen, and Ground Sixteen-served to prejudice petitioner, denying him the right to and even the possibility of a fair trial, also violating his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution.

(Doc. 8).

         III. EXHAUSTION AND PROCEDURAL BAR

         State prisoners are required to exhaust their state law remedies before bringing a petition under 28 U.S.C. § 2254 in federal court. See 28 U.S.C. § 2254(b)(1)(A). If a prisoner “has the right under the law of the State to raise, by any available procedure, the question presented, ” he has not exhausted his state law remedies. 28 U.S.C. § 2254(c). In Missouri, an appeal to the intermediate state appellate court sufficiently exhausts state remedies ...


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