United States District Court, E.D. Missouri, Eastern Division
D. NOCE UNITED STATES MAGISTRATE JUDGE
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).
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.
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).
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.
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).
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
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).
PETITIONER'S GROUNDS FOR FEDERAL HABEAS
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).
contends that these grounds lack merit. (Doc. 18).
EXHAUSTION AND PROCEDURAL BAR
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. §
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
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
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).
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).
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.
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).
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
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.
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.
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).
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). 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).
STANDARD OF REVIEW
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;
(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).
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, ...