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Pennell v. Pash

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

March 20, 2019

MICHAEL M. PENNELL, Petitioner,
v.
RONDA PASH, Respondent,

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Missouri state prisoner Michael M. Pennell's (“Petitioner”) pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 16). For the following reasons, the petition for a writ of habeas corpus will be denied.

         I. Factual and Procedural Background

         Petitioner is currently an inmate at the Boonville Correctional Center in Boonville, Missouri. In 2011, a jury convicted Petitioner of the class B felony of distribution, delivery or sale of a controlled substance, in violation of Mo. Rev. Stat. § 195.211 (Supp. 2012), [1] and he was sentenced to fifteen years' incarceration.

         On direct appeal, the Missouri Court of Appeals summarized the facts as follows:

In the Spring of 2010, the manager of a Pamida store, which housed a drop-off location for UPS, contacted Detective Michael Murphy of the Northeast Missouri Task Force because the manager believed that Jake Humphrey was dropping off packages related to drug activity. The Pamida manager found it suspicious that Mr. Humphrey was spending $60 to ship incense and catalogs overnight. Humphrey was shipping packages to Rhonda Stevenson in Kansas City, Kansas. Rhonda Stevenson and [Petitioner] have four children together and live together in the house at the address to which the packages were being shipped.
In May of 2010, Kansas City drug enforcement officers intercepted a suspicious package being sent to Mr. Humphrey at an address in Palmyra, Missouri. The return address on the package showed “Common Scents” with an address corresponding to the vacant lot next to the residence occupied by Ms. Stevenson and [Petitioner]. Northeast Missouri Drug Taskforce officers posed as UPS delivery men and attempted to deliver the package to Mr. Humphrey in Palmyra without success.
The undelivered package contained a Pampers box which held about [nine] ounces of methamphetamine and [two] pounds of marijuana, intended for Mr. Humphrey.

(Res. Ex. C at 1-2).

         Petitioner was arrested, and spoke to the police after waiving his Miranda rights. Id. at 2. Petitioner admitted to the police that he had on several prior occasions shipped methamphetamine and marijuana to Humphrey in Palmyra, Missouri. (Rep. Ex. I at 12). Petitioner admitted that he had shipped the package at issue, containing approximately nine ounces of methamphetamine and two pounds of marijuana in a Pampers box, to Humphrey. Id. Petitioner further told the police that he had been tracking the package after he delivered it to UPS, and believed there was a problem. Id. At that point, he called Humphrey and told him not to accept the package. Id.

         In April 2013, the Missouri Court of Appeals, on direct appeal, affirmed Petitioner's conviction. (Res. Ex. C at 1). Petitioner subsequently filed a pro se Rule 29.15 Motion for post-conviction relief, asserting ineffective assistance of counsel from his trial counsel, Jim McConnell (“McConnell”), his appellate counsel, Alexa Pearson (“Pearson”), and his pretrial counsel. (Rep. Ex. I at 2). After the motion court appointed Cinda Eichler (“Eichler”) to represent Petitioner, Petitioner requested an extension of time, which the motion court granted. Id. On October 24, 2013, Petitioner filed a pro se motion for abandonment, asserting that Eichler had a conflict of interest in that she knew both McConnell and Pearson because she worked in the same office as McConnell (the public defender's office in Columbia, Missouri) and she formerly worked with Pearson. Id. On November 5, 2013, Eichler filed a Statement in Lieu of Filing a Rule 29.15 Amended Motion (“Statement”), in which she asserted that, having viewed the record and discussed the case with Petitioner, there were no additional claims to be raised. Id. The motion court set the case for a hearing on all pending matters. Id.

         At the evidentiary hearing, Petitioner argued that the Statement constituted abandonment, and that while Eichler stated that she found no additional claims, he believed he did have additional meritorious claims. Id. Petitioner further alleged that the Statement was untimely filed. Id. Eichler testified that because she had filed the Statement on Petitioner's behalf, she had not abandoned him under the law. Id. at 3. The motion court denied Petitioner's motion for abandonment, and found that Eichler had no conflict. Id.

         The motion court evaluated twenty-three claims alleged in Petitioner's pro se 29.15 motion, and subsequently denied the motion. (Res. Ex. K at 60-61). Petitioner appealed the motion court's decision to the Missouri Court of Appeals, arguing that the motion court erred by: 1) not inquiring sua sponte into the performance of both Petitioner and Eichler after she allegedly abandoned Petitioner by filing her statement out of time; 2) finding that Eichler did not abandon Petitioner; and 3) denying his claim that his trial counsel was ineffective for failing to challenge Missouri's jurisdiction to prosecute him. (Res. Ex. I at 4, 10). After finding these claims without merit, the Missouri Court of Appeals affirmed the decision of the motion court. Id. at 15.

         On June 13, 2016, Petitioner filed his pro se petition for writ of habeas corpus in this Court, raising ten claims: 1) Petitioner was arrested without probable cause in violation of his Fourth Amendment rights; 2) Petitioner was charged without probable cause in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights; 3) the trial court was without jurisdiction because the crime occurred in Kansas, not Missouri; 4) Petitioner was denied his Sixth Amendment right to counsel and Fourteenth Amendment right to due process because his pre-trial counsel had a conflict of interest; 5) Petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated when the police destroyed the notes taken during his alleged confession; 6) Petitioner's due process rights were violated when the trial court admitted evidence without a proper foundation; 7) Petitioner's Sixth Amendment right to a fair and impartial jury was violated because the jury pool did not include people of color; 8) Petitioner's Sixth and Fourteenth Amendment rights were violated when Petitioner was not allowed to confront State's witnesses; 9) Petitioner's due process rights were violated because the controlled substances admitted as evidence at his trial had been tampered with; and 10) Petitioner's Sixth and Fourteenth Amendment rights were violated when the state allowed the police to testify to the existence of Petitioner's confession after admitting the notes from the confession had been destroyed (Doc. 13).

         II. Legal Standards

         A. Standard for Reviewing Habeas Corpus Claims on the Merits

         A federal judge may issue a writ of habeas corpus freeing a state prisoner, if the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States, ” 28 U.S.C. § 2254(a). However, the judge may not issue the writ if an adequate and independent state-law ground justified the prisoner's detention, regardless of the federal claim. See Wainwright v. Sykes, 433 U.S. 72, 81-88 (1977).

         Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by the AEDPA [the Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254). Under the AEDPA, a federal court may not grant relief to a state prisoner with respect to any claim that was adjudicated on the merits in the state court proceedings unless the state court's adjudication of the claim “(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the States court proceeding.” 28 U.S.C. § 2254(d).

         A state court decision is “contrary to” clearly established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529, 412-13 (2000). “[A] state court decision involves an unreasonable determination of the facts in light of the evidence presented in the state court proceedings only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C. § 2254(e)(1)).

         B. Procedural Default

         To preserve a claim for federal habeas review, a state prisoner must present that claim to the state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).

         “Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted.” Id. The federal habeas court will consider a procedurally defaulted 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.” Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc)). “The procedural default doctrine and its attendant ‘cause and prejudice' standard are ‘grounded in concerns of comity and federalism,' Coleman, 501 U.S. at 730, and apply alike whether the default in question occurred at trial, on appeal, or on state collateral attack. Murray v. Carrier, 477 U.S. 478, 490-92 (1986).

         To demonstrate cause, a petitioner must show that “some objective factor external to the defense impeded [the petitioner's] efforts to comply with the State's procedural rule.” Id. at 488. To establish prejudice, a petitioner must demonstrate that the claimed errors “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner must “‘present new evidence that affirmatively demonstrates that he is innocent of the crime for which he was convicted.'” Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).

         III. Discussion

         A. Claims Addressed in State Court: Grounds One, Two, Three, Six and Nine

         The following claims were addressed on the merits in a state court proceeding. As such, the AEDPA requires this court to exercise only limited deferential review of the underlying state court decision. 28 U.S.C. § 2254. This Court will grant relief only if the state's adjudication of the claim “(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

         a. Grounds One and Two: Arrested and Charged ...


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