United States District Court, E.D. Missouri, Eastern Division
DAMON J. HOUSTON, Petitioner,
ANNE L. PRECYTHE, Respondent.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
Damon Houston seeks a writ of habeas corpus, under 28 U.S.C.
§ 2254. I referred this petition to United States
Magistrate Judge Noelle Collins for a report and
recommendation on all dispositive matters pursuant to 28
U.S.C. § 636(b). The Magistrate Judge recommended that I
deny Houston's petition. According to the Magistrate
judge, seven of Houston's ten grounds are procedurally
defaulted (ECF No. 24 at 5-13), one of Houston's grounds
is not cognizable in a federal habeas corpus action
(Id. at 14-15), and two of his grounds do not meet
the § 2254 standard on the merits. (Id. at
15-24). Houston objects to the Magistrate Judge's report
and recommendations. Houston's objections and underlying
arguments do not demonstrate that the state post-conviction
court adjudicated claims contrary to federal law or made an
unreasonable determination of facts. As a result, I will deny
his petition for a writ of habeas corpus.
September 12, 2011, Houston was convicted of one count of
forcible rape, one count of attempted forcible sodomy, and
one count of victim tampering in the Circuit Court of the
City of St. Louis. (ECF Nos. 23-1, 16-1). Houston was
sentenced to concurrent sentences of life without the
possibility of parole for the forcible rape and attempted
forcible sodomy. He was also sentenced to three years for
witness tampering. The Missouri Court of Appeals affirmed
Houston's conviction and sentence on direct appeal. (ECF
No. 13-3); State v. Houston, 386 S.W.3d 888
(Mo.Ct.App. 2012). On February 22, 2013, Houston filed a
motion to vacate, set aside or correct the judgment or
sentence under Missouri Supreme Court Rule 29.15. The
post-conviction relief court denied Houston's motion, and
the Missouri Court of Appeals affirmed that denial. (ECF Nos.
16-2, 13-6); Houston v. State, 469 S.W.3d 503 (Mo.
Ct. Ap. 2015).
February 4, 2016, Houston filed his petition in this matter
under 28 U.S.C. § 2254. Houston raises the following ten
grounds for relief:
(1) Trial counsel was ineffective for failing to investigate
and present evidence of consensual sex between Houston and
the victim six months prior to the crimes in question, (Doc.
1 at 16);
(2) The motion court erred in refusing to review the
additional claims Houston raised in his pro se Rule 29.15
Motion because they were allegedly illegible, (id.
(3) The trial court failed to direct a verdict at the close
of all of the evidence despite the State's failure to
prove Houston took a substantial step toward completing the
crime of attempted forcible sodomy, (id. at 23);
(4) Direct appeal counsel failed to adequately use the
“Destructive Contradiction Doctrine” to challenge
the victim's testimony, (id. at 25);
(5) Trial counsel failed to subpoena police Officer Scott A.
Wilmont as a key witness to provide impeachment evidence
against the victim, (id. at 26);
(6) Trial counsel failed to properly lay a foundation to
impeach a key state witness, (id. at 28);
(7) Trial counsel failed to object to an exhibit that was not
produced before trial, showing the location of the crime
relative to a White Castle, (id. at 29);
(8) Direct appeal counsel failed to raise “under Plain
Error review” the State's failure to produce the
White Castle exhibit, (id. at 31);
(9) Trial counsel failed to make a timely and proper
objection to the State's motion in limine preventing
testimony that the victim had previous sexual ...