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Cockrell v. Minor

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

April 9, 2019

DURON COCKRELL, Petitioner,
v.
DEAN MINOR, Respondent.

          MEMORANDUM

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE

         This action is before the court upon the petition of Missouri state prisoner Duron Cockrell for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), as well as petitioner's motion for appointment of counsel, notice of fraud upon the Court, and motion for an evidentiary hearing. (Docs. 33 and 34).

         The parties have consented to the exercise of plenary authority of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.

         BACKGROUND

         Petitioner Cockrell was charged as a prior offender in the Circuit Court of the City of St. Louis with two counts of first-degree statutory sodomy, attempted first-degree statutory rape or in the alternative first-degree child molestation, and endangering the welfare of a child in the first degree. (Doc. 23, Ex. 2 at 16-17). Following a jury trial in February 2012, petitioner was convicted of attempted statutory rape in the first degree and one count of statutory sodomy in the first degree. (Doc. 23, Ex. 1 at 590). The court granted petitioner's motion for judgment of acquittal as to the count of endangering the welfare of a child in the first degree, and the jury acquitted petitioner on the remaining count of statutory sodomy in the first degree. (Doc. 23, Ex. 2 at 10). On April 13, 2012, the court sentenced him to ten years on the attempted statutory rape count and eighteen years on the statutory sodomy count, to run concurrently. (Doc. 23, Ex. 1 at 605).

         Petitioner timely filed a direct appeal. (Doc. 23, Ex. 2 at 15). In his sole point on appeal, he argued that the trial court erred in preventing him from presenting evidence about the victim's alleged motive to fabricate a story against him. (Doc. 23, Exs. 4-6). Specifically, he claimed that the victim, who is the daughter of his former paramour, wanted to get out of her mother's house and move in with her father, because the victim's mother allegedly had a sexual relationship with another woman. Petitioner claimed that this gave the victim motive to fabricate a story against him: so that she could get out of her mother's house. Id.

         In June 2013, the Missouri Court of Appeals, Eastern District, affirmed his conviction and sentence. (Doc. 23, Exs. 5-6). Petitioner then filed a motion for post-conviction relief in November 2013. (Doc. 23, Ex. 7). He argued that his appellate counsel was ineffective in failing to include seven claims in his motion for a new trial. (Id.). He also claimed his trial counsel was ineffective for failing to object to a jury instruction (id. at 13) and in failing to limit, object to, or request a mistrial based on “bad acts” evidence the trial court admitted regarding his physical abuse of the victim's mother. (Id. at 24). The circuit court denied the motion in October 2014 without evidentiary hearing. (Doc. 23, Ex. 7). Petitioner appealed, but the Court of Appeals affirmed on October 6, 2015, holding the circuit court did not clearly err in denying post-conviction relief. (Doc. 23, Ex. 10).

         On May 26, 2016, petitioner filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, Missouri. Duron Cockrell v. Dean Minor, 16RA-CV00630 (May 26, 2016). In March 2017, following a hearing at which petitioner was not present, the writ was summarily denied. Id. (See also Doc. 1 at 168). Petitioner filed a new habeas corpus petition in the Missouri Court of Appeals, Western District. The Court of Appeals summarily denied the writ on June 5, 2017. In Re Duron Cockrell v. Dean Minor, WD80768 (June 5, 2017) (see also Doc. 1 at 167).

         On June 21, 2017, petitioner filed the instant federal petition for habeas corpus relief in this Court under 28 U.S.C. § 2254. (Doc.1, Ex. 1).

         II. PETITIONER'S GROUNDS FOR FEDERAL HABEAS RELIEF

         Petitioner alleges ten grounds for habeas relief, in each arguing that his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the Constitution were violated:

(1) The trial court erred by preventing petitioner from presenting evidence about the victim's motive.
(2) Petitioner's trial counsel rendered constitutionally ineffective assistance of counsel for failing to object to evidence about petitioner's alleged bad acts.
(3) The State failed to prove each element of statutory sodomy in the first degree.
(4) The prosecutor misled the jury to believe incorrect elements of the crime of sexual deviant intercourse.
(5) The Missouri courts denied petitioner due process of law by either holding a hearing without petitioner present or by not holding an evidentiary hearing.
(6) Petitioner is actually innocent, because the State failed to prove each element of first-degree statutory sodomy and attempted statutory rape and shifted the burden to the defense to prove innocence.
(7) Petitioner's trial counsel was ineffective for failing to provide expert witnesses or to investigate childhood sexual trauma, DNA analysis, proper police procedure, and the collection of technological evidence.
(8) The trial court erred by allowing the prosecution to strike for cause any venireperson who would question the Court's instructions and the validity of the law as applied in the case, including the Missouri rules of evidence, which denied the jury's right to nullification.
(9) “Prosecutorial misconduct, jury stacking, Jenks/Brady material withholding, Giglio/Brady perjury, misrepresenting the forensic evidence of DNA, Amylase, and seminal fluid lab results.”
(10) The trial judge was biased because he made snide remarks to defense counsel concerning the central defense that the allegations were a fabrication, and wrote a book exposing “his personal worldview of the altright.”

(Doc. 1 at 4-28).

         Respondent contends that these grounds lack merit. (Doc. 18).

         III. EXHAUSTION AND PROCEDURAL BAR

         Congress requires that state prisoners exhaust their state law remedies for claims made in federal habeas corpus petitions filed in district court under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b)(1)(A). A state prisoner has not exhausted his remedies “if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).

         It is not sufficient exhaustion of state remedies for a petitioner simply to have no remaining procedure for bringing a claim to the state court. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam). Rather, a petitioner must have fairly presented the substance of each federal ground to the state trial and appellate courts. Id. To preserve issues for federal habeas review, a state prisoner must fairly present his or her claims to state courts during direct appeal or during post-conviction proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1996). “If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default”. Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995) (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)).

         A petitioner may overcome the procedural bar if he can demonstrate legally sufficient cause for the default and actual prejudice resulting from it, or that failure to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To establish cause for a procedural default, petitioner must “show that some objective factor external to the defense impeded” his “efforts to comply with the State's procedural rule.” Id. at 753. To establish actual prejudice, petitioner “must show that the errors of which he complains worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (internal citations omitted).

         Petitioner's direct appeal from his conviction raised federal habeas Ground 1. (Doc. 23, Exs. 4-6). Ground 2 was raised in his post-conviction motion in the circuit court and the denial of that ground was appealed to the Missouri appellate court. (Ex. 7 at 24, Ex. 8 at 19).

         Finally, petitioner raised Grounds 3 to 10 in his petitions for habeas corpus relief in both the Missouri circuit court and the Missouri Court of Appeals. (Doc. 1 at 169-236). However, these state court habeas corpus proceedings do not qualify as adequately presenting these grounds to the state courts for compliance with § 2254. See Byrd v. Delo, 942 F.2d 1226, 1231-32 (8th Cir. 1991) (en banc); cf. Jolly v. Gammon, 28 F.3d 51, 53-54 (8th Cir. 1994) (regarding motion to recall mandate).

         When a state court decides a federal claim on state procedural grounds, rather than on the merits, federal habeas review is barred and the claim is not exhausted, because this state court decision rests on independent and adequate state procedural grounds. Coleman v. Thompson, 501 U.S. 722, 730 (1991). Under Missouri law, state habeas petitions are not available to litigate issues that could have been asserted earlier, either on direct appeal or in a state post-conviction proceeding filed in a trial court. State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516 (Mo. 2010) (“if a petitioner fails to raise a claim for relief that could have been asserted in an appeal or in a post-conviction motion, the petitioner normally is barred from raising the claim in a subsequent petition for writ of habeas corpus”). Both of petitioner's habeas corpus petitions brought pursuant to Missouri Supreme Court Rule 91 were summarily denied by the state courts, and there is no indication federal issues were considered by the state court in denying the petitions. (Doc. 1, Ex. 1 at 167-68). The Missouri Court of Appeals decision stated in its entirety: “The Petitioner's Petition for writ of habeas corpus, submitted on May 19, 2017, is taken up and considered. The Court being fully informed does hereby deny Relator's Petition.” (Doc. 1, Ex. 1 at 167). Consistent with other federal courts, this Court will assume the summary denials were based on state procedural law. See Byrd v. Delo, 942 F.2d at 1231-32 (“the ground of rejection was not an examination of the merits of the petition, which surely would have taken more time, but rather the application of a procedural rule believed by the Missouri Supreme Court to be plain and obvious”); see also Schneider v. Delo, 890 F.Supp. 791, 802 (E.D. Mo. 1995), aff'd, 85 F.3d 335 (8th Cir. 1996).

         Thus, petitioner has not overcome the procedural bar for Grounds 3 to 10. For federal court review to occur, petitioner must show good cause and actual prejudice under Murray v. Carrier, 477 U.S. 478 (1986). He has failed to do so. First, while he raised many grounds in his state court petition for habeas corpus, he did not raise them on direct appeal or in post-conviction motions, which barred subsequent merits review by Missouri courts. Petitioner has not shown legally sufficient cause for this default. Absent a showing of cause, this Court need not reach the issue of prejudice. Zeitvogel v. Delo, 84 F.3d 276, 279 (8th Cir. 1996).

         Second, petitioner has also failed to show that this Court's failure to consider the defaulted grounds would result in a miscarriage of justice. Such a miscarriage of justice would exist if petitioner presented new evidence of actual innocence showing “it is more likely than not that no reasonable juror would have convicted the petitioner.” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013). While petitioner claims he is actually innocent he has not presented evidence of actual innocence or demonstrated that a jury would have been unreasonable in finding him guilty. Accordingly, petitioner's Grounds 3 to 10 are procedurally barred.

         Nevertheless, if this court concludes that the procedurally barred grounds are without merit, Congress has authorized it to consider them and to dismiss them. 28 U.S.C. § 2254(b)(2). The undersigned has considered all of petitioner's federal grounds and concludes that they are without merit.

         III. TIMELINESS

         Congress also provides a one-year window, calculated from the conclusion of direct state review, in which a habeas applicant may file a petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). Direct review concludes when the time limit for seeking further review expires. Gonzales v. Thaler, 132 S.Ct. 641, 653-54 (2012). The trial court sentenced petitioner on April 13, 2012. Petitioner timely filed a notice of appeal on April 23, 2012, and the Missouri Court of Appeals denied the appeal on June 4, 2013. (Doc. 23, Ex. 2 at 15; Ex. 6 at 1). Petitioner applied for transfer to the Missouri Supreme Court, which was denied, and the Court of Appeals issued its mandate on October 4, 2013. Accordingly, on October 5, 2013, the one-year time limit began to run.

         On November 19, 2013, or 45 days later, petitioner filed a motion for post-conviction relief. (Doc. 23, Ex. 7 at 2). A state post-conviction relief proceeding or other state collateral review tolls the one-year limitations period. 28 U.S.C. § 2244(d). On October 15, 2014, the circuit court denied petitioner's motion, a decision petitioner appealed, and the Court of Appeals affirmed the denial, issuing its mandate on October 30, 2015. (Doc. 23, Ex. 10). On October 31, 2015, the one-year clock resumed, with 320 days remaining in the federal limitations period. See Streu v. Dormire, 557 F.3d 960, 968 (8th Cir. 2009).

         On May 26, 2016, or 208 days later, petitioner filed for a writ of habeas corpus in state court, again tolling the one-year clock. 29 U.S.C. § 2244(d)(2).[1] The trial court denied petitioner's motion for writ on March 21, 2017. He appealed, and on June 5, 2017, his appeal was denied, with no mandate issued. Under Missouri Supreme Court Rules 30.25, 83, and 84.17, the time limit for filing post-disposition motions expires fifteen days after the appellate court files its opinion, or in this case, on June 20, 2017. The very next day, on June 21, 2017, petitioner timely filed in this Court this petition for a writ of habeas corpus. (Doc. 1).

         IV. STANDARD OF REVIEW

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas relief can only be granted by a federal court on a claim that has been decided on the merits by a state court when that adjudication:

(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)(1)-(2).

         In order for a state court decision to be “contrary to” Supreme Court precedent, it must arrive at an opposite result than the Supreme Court when confronting facts that are materially indistinguishable from a relevant Supreme Court precedent. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405-406 (2000). When analyzing claims under 28 U.S.C. § 2254(d)(2), “a determination of a factual issue made by a State Court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). In order to rebut this presumption, ...


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