United States District Court, E.D. Missouri, Eastern Division
MICHAEL M. PENNELL, Petitioner,
RONDA PASH, Respondent,
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE.
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.
Factual and Procedural Background
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),  and he was sentenced to fifteen years'
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).
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.
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.
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.
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.
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).
Standard for Reviewing Habeas Corpus Claims on the
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).
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. §
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. §
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)).
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).
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)).
Claims Addressed in State Court: Grounds One, Two, Three, Six
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).
Grounds One and Two: Arrested and Charged ...