United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on the petition of Missouri state
prisoner Earnest Ray (“Petitioner”) for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1). (Doc. 3). For the following reasons,
the petition for a writ of habeas corpus will be denied.
following background is taken from the Missouri Court of
Appeals' opinion affirming Petitioner's conviction on
Cheryl Kyles (Kyles) is an assistant store manager at City
Gear, a retail store. At approximately 7:30 p.m. on January
27, 2012, she was working at City Gear, and she saw a group
of people enter the store wearing hoodies that were tied
tightly around their face[s]. In accordance with City
Gear's store policy, Kyles asked them to remove their
hoodies or leave the store. She said they left, but then 30
to 45 minutes later, five or six people came back, again
wearing hoodies. She asked them to remove their hoodies, and
one of them punched her in the mouth. Kyles dropped to the
floor and hid under a clothing rack until she felt it was
safe to come out.
During this time, Kenya Ballard (Ballard), an assistant
manager at City Gear, was sitting in her car outside the
store, taking her break. Ballard saw a person run out of City
Gear holding a lot of clothes, and she assumed that the store
was being robbed. Ballard got out of her car to see where the
person was running, and she saw the person get into a red
two-door vehicle. Ballard saw more men running out of the
store with arms full of clothing, and then she saw
[Petitioner] come out of the store holding a cash register
and a gun. She noticed he had a star tattoo under his right
Another employee of City Gear, Howard Shelton (Shelton), had
been sitting in the car with Ballard, also taking his break.
When he saw the people running from the store, he chased
them. He tried to reach for the cash register [Petitioner]
was holding and saw [Petitioner] face to face. [Petitioner]
pulled the cash register away, pointed the gun at Shelton,
and said “Don't make me shoot you.”
A few days later, on January 31, 2012, Kyles, Ballard, and
Shelton were working at the store when [Petitioner] came in
again. They noticed the clothes and hat that [Petitioner] was
wearing looked the same as some of the clothes that were
stolen a few days earlier. Ballard followed [Petitioner] out
to his car. As he drove away Ballard obtained the license
plate number from the car and called the police.
When police arrested [Petitioner], he made the following
I've been identified, so I guess you have your case. Why
don't you show me on camera that I robbed that place. You
can't because they don't have cameras. . . . you
can't prove nothing that's not on camera.
Police arranged a photographic lineup and a live lineup, and
the witnesses to the robbery identified [Petitioner] in both.
The State charged [Petitioner] as a prior offender with
first-degree robbery and armed criminal action. The jury
convicted [Petitioner] on both counts. The trial court
sentenced [Petitioner] to concurrent prison terms of eleven
years for robbery and three years for armed criminal action.
Resp't Ex. E, at 2-3.
direct appeal, Petitioner raised two claims: that the trial
court abused its discretion in allowing certain closing
argument statements by the State, and that the trial court
plainly erred in allowing Juror 786 to serve on the jury at
his trial. Resp't Ex. B, at 14-15. The Missouri Court of
Appeals conducted a plain error review of both claims and
denied them both. Resp't Ex. E.
instant pro se petition, Petitioner asserts two
grounds for relief: (1) that the trial court erred in
allowing the State to argue facts outside the record, in
closing argument, about the use of guns in killings in Iraq,
Afghanistan, and on the streets of St. Louis, in that the
argument was improper and calculated to arouse the passions
and prejudices of the jury; and (2) that the trial court
erred in failing to grant a mistrial because Juror 786, Kerri
Brown, intentionally failed to disclose, until the second day
of trial, that she knew and recognized the name Howard
Shelton, a prosecution witness in this case; Petitioner
argues that this undisclosed information was requested on
voir dire and material and that the non-disclosure
prejudiced the Petitioner by affecting the jury's
Legal Standard for Reviewing Claims on the Merits
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)). “[I]n the
habeas setting, a federal court is bound by 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 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 a 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 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 U.S. 362, 412-13 (2000). A state court decision involves
an “unreasonable application” of clearly
established federal law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts
of a particular prisoner's case.” Id. at
407-08. See also Bell v. Cone, 535 U.S. 685, 694
(2002). “Finally, 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 an opportunity to address [his or her]
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)). To demonstrate cause, a petitioner must show that
“some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). To establish prejudice, “[t]he habeas
petitioner must show ‘not merely that the errors at . .
. trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.'” Id.at 494 (quoting
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)).
Ground One: Improper Statements in Closing Argument Regarding
Ground One, Petitioner argues that the trial court erred in
allowing the State to make statements in closing argument
about the use of guns in killings in Iraq, Afghanistan, and
in the City of St. Louis. Petitioner argues that these
statements referred to facts outside the record and that the
statements were improper and calculated to arouse the
passions and prejudices of the jury. Petitioner did not
include this claim in his motion for a new trial, Resp't
Ex. D, at 60-61, but he did raise this claim on direct
appeal, Resp't Ex. B, at 16-19. Because this claim was
not included Petitioner's motion for a new trial, the
Missouri Court of Appeals determined that the claim was not
preserved for appeal and thus warranted plain error review
only, which required Petitioner to show facially substantial
grounds for believing that the trial court's error was
evident, obvious, and clear and that manifest injustice or
miscarriage of justice had resulted. Resp't Ex. E, at
4-5. The Missouri Court of Appeals denied the claim.
Id. at 5-6. Specifically, the court stated,
“Even assuming arguendo that reference to
killings in Iraq and Afghanistan was improper, the element of
whether the gun was a deadly weapon was undisputed and
unrelated to [Petitioner's] defense of
misidentification” and there were not “facially
substantial grounds for believing the State's argument in
this respect had a decisive effect on the jury such that
manifest injustice or a miscarriage of justice
resulted.” Id. at 6.
preliminary matter, the Court notes that it appears that this
claim may have been procedurally defaulted based on
Petitioner's failure to raise it in a motion for new
trial. Although the Missouri Court of Appeals reviewed the
claim for plain error, a state court's discretionary
plain-error review of unpreserved claims cannot excuse a
procedural default. Clark v. Bertsch, 780 F.3d 873,
877 (8th Cir. 2015); see also Clayton v. Steele, No.
4:14-CV-1878-RLW, 2018 WL 1382401, at *6 (E.D. Mo. Mar. 16,
2018) (finding the petitioners' claim of trial court
error in admission of evidence was procedurally barred where
the Missouri Court of Appeals reviewed the claim only for
plain error because it had not been raised in the motion for
new trial); Floyd v. Griffith, No. 4:15CV1145 JCH,
2016 WL 199078, at *1 (E.D. Mo. Jan. 15, 2016) (same).
However, Respondent did not raise the issue of procedural
default in his brief, and the Eighth Circuit has held that
the district court should not sua sponte decide a
case based on a procedural default without giving the parties
fair notice and an opportunity to present their positions.
See Dansby v. Hobbs, 766 F.3d 809, 824 (8th Cir.
2014); accord Deck v. Steele, No. 4:12-CV-1527- CDP,
2015 WL 5885968, at *2 (E.D. Mo. Oct. 8, 2015). The Eighth
Circuit has recognized that “judicial economy sometimes
dictates reaching the merits if the merits are easily
resolvable against a petitioner while the procedural bar
issues are complicated.” Barrett v. Acevedo,
169 F.3d 1155, 1162 (8th Cir. 1999). Because this claim is
easily resolved against Petitioner on its merits, the Court
need not reach the question of procedural default.
arguendo, that this claim has not been procedurally
defaulted, or that Petitioner could show cause and prejudice
to excuse the procedural default, the Court finds the claim
to be without merit. Even applying a de novo
standard of review, it is clear that Petitioner is not
entitled to habeas relief.
remarks by the prosecutor can violate the Fourteenth
Amendment if they ‘so infected the trial with
unfairness as to make the resulting conviction a denial of
due process.'” Barnett v. Roper, 541 F.3d
804, 812 (8th Cir. 2008) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). See also
Rousan v. Roper, 436 F.3d 951, 960 (8th Cir. 2006)
(“To grant habeas relief based on an inappropriate
comment from a prosecutor, the comment must be so
inappropriate as to make the trial fundamentally
unfair”). To grant habeas relief based on an improper
remark by a prosecutor, “[t]here must be a
‘reasonable probability' that the error affected
the jury's verdict and that without the error, the
jury's verdict would have been different.”
Id. (citing Newton v. Armontrout, 885 F.2d
1328, 1336-37 (8th Cir. 1989)). See also Stringer v.
Hedgepeth, 280 F.3d 826, 829 (8th Cir. 2002) (stating
that to obtain habeas relief based on improper remarks by a
prosecutor, “[a] petitioner ‘must show that there
is a reasonable probability that the error complained of
affected the outcome of the trial-i.e., that absent the
alleged impropriety the verdict probably would have been
different.'”) (quoting Anderson v. Goeke,
44 F.3d 675, 679 (8th Cir. 1995)).
convict Petitioner of first-degree robbery, the State was
required to prove that Petitioner “forcibly st[ole]
property and, in the course thereof . . . display[ed] or
threaten[ed] the use of what appear[ed] to be a deadly weapon
or dangerous instrument.” Mo. Rev. Stat. § 569.020
(2012). For armed criminal action, the State was required to
show that Petitioner committed a felony “by, with, or
through the use, assistance, or aid of a dangerous instrument
or deadly weapon.” Mo. Rev. Stat. § 571.015.1. The
State introduced testimony at trial that Petitioner used a
gun to forcibly steal money from the City Gear store.
Resp't Ex. A, at 256, 258, 310, 333-334, 340, 351-355,
403-404. During closing argument, after addressing the facts
of the case, in making her argument as to why each element of
the crimes was satisfied, the prosecutor argued that the
deadly weapon elements of both crimes were satisfied. The
[F]ourth, that in the course of the taking, the defendant
displayed what appeared to be a deadly weapon. And we know it
was a deadly weapon because it was a gun.
Number six is the armed criminal action. So that's saying
he used a gun with the robbery. And the first element is that
he committed the robbery, which I just explained to you why
we know he did. And, second, that the defendant committed
that offense by, with the knowing use, assistance, or aid of
a deadly weapon.
Ladies and gentlemen, we know guns are deadly, right, because
they kill people every day. They kill people every day on the
City of St. Louis on the streets. They kill people in ...