United States District Court, E.D. Missouri, Eastern Division
REPORT AND RECOMMENDATION
D. NOCE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
PETITIONER'S GROUNDS FOR FEDERAL HABEAS
amended habeas corpus petition alleges the following grounds
(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
(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
(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
(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
(11) The trial court lacked the jurisdiction to try and
convict petitioner due to its failure to properly arraign
(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
(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
(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
EXHAUSTION AND PROCEDURAL BAR
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 ...