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Ray v. Steele

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

March 21, 2019

EARNEST RAY, Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. Factual Background

         The following background is taken from the Missouri Court of Appeals' opinion affirming Petitioner's conviction on direct appeal:

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 eye.
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 statement:
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.[1]

         In his 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.

         In the 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 verdict.

         II. Legal Standards

         A. Legal Standard for Reviewing Claims on the Merits

         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)). “[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. § 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 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)).

         III. Discussion

         A. Ground One: Improper Statements in Closing Argument Regarding Guns

         In 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.

         As a 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.

         Assuming, 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.

         “Improper 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)).

         To 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 prosecutor stated:

[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 ...

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