United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Kevin Wilson's
(“Wilson”) Petition for Writ of Habeas Corpus.
[Doc. 1.] Respondent filed a response to the Petition for
Writ of Habeas Corpus. [Doc.13.] The parties have consented
to the jurisdiction of the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
[Doc. 8.] For the reasons set forth below, Wilson's
Petition for Writ of Habeas Corpus will be denied.
February 12, 2012, a jury found Wilson guilty of five counts
of first-degree statutory sodomy and five counts of
first-degree child molestation, while acquitting Wilson on
ten counts of statutory rape. (Resp't Ex. E at 95-114.)
The trial court sentenced Wilson to concurrent sentences of
life imprisonment for each count of statutory sodomy and 15
years imprisonment for each count of child molestation.
(Resp't Ex. E at 123-136.)
following evidence, in light most favorable to the verdict,
was presented at trial:
married H.D.'s mother, Linda, and moved into
Linda's house when H.D. was approximately seven years
old. For the first few years of the marriage, Wilson and H.D.
got along well. Within two years, Wilson and H.D. began
fighting often and H.D. grew to hate Wilson. Sometime after
H.D. turned 13, Wilson initiated sexual contact with H.D.
These incidents happened twice a week for almost a year. One
day, when H.D. was almost 14 years old, she told Wilson that
what he was doing was wrong and the incidents stopped. H.D.
told her mother about the abuse in 2011, when H.D. was 19
years old. Linda reported H.D.'s claims to the police,
and Wilson was subsequently arrested. After Wilson's
arrest, but before trial, he wrote letters to H.D.'s
family, expressing remorse and asking for forgiveness. One
letter stated, “I know I have caused a lot of pain,
hurt, anger, hate, confusion, mistrust, and sorrow for every
one of you.” (Resp't Ex. P at 384).
trial, Wilson testified in his own defense, denying any
sexual contact with H.D. (Resp't Ex. P at 515-17). Wilson
also claimed that his apology letters were for the anger
shown to H.D. and her family while living with them.
(Resp't Ex. P at 519-521). Wilson's conviction was
affirmed on direct appeal. (Resp't Ex. C). He later filed
a pro se motion for post-conviction relief which was
overruled by the motion court and affirmed by the Missouri
Court of Appeals. (Resp't Ex. H).
Standard of Review
writ of habeas corpus stands as a safeguard against
imprisonment of those held in violation of the law. Judges
must be vigilant and independent in reviewing petitions for
the writ, a commitment that entails substantial judicial
resources.” Harrington v. Richter, 562 U.S.
86, 91 (2011). “In general, if a convicted state
criminal defendant can show a federal habeas court that his
conviction rests upon a violation of the Federal
Constitution, he may well obtain a writ of habeas corpus that
requires a new trial, a new sentence, or release.”
Trevino v. Thaler, 569 U.S. 413, 421 (2013). The
Anti-Terrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254 (AEDPA) applies to all petitions for
habeas relief filed by state prisoners after this
statute's effective date of April 24, 1996. Lindh v.
Murphy, 521 U.S. 320, 326-29 (1997). In conducting
habeas review pursuant to 28 U.S.C. § 2254, a federal
court is limited to deciding whether a claim that was
adjudicated on the merits in state court proceedings
“(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 determination of a factual issue
made by a state court is presumed to be correct unless the
petitioner successfully rebuts the presumption of correctness
by clear and convincing evidence. 28 US.C. § 2254(e)(1).
purposes of § 2254(d)(1), the phrase “clearly
established Federal law” “refers to the holdings,
as opposed to the dicta, of [the Supreme] Court's
decisions as of the time of the relevant state-court
decision.” Lockyer v. Andrade, 538 U.S. 63, 71
(2003). “In other words, ‘clearly established
federal law' under § 2254(d)(1) is the governing
legal principle or principles set forth by the Supreme Court
at the time the state court renders its decision.”
Id. at 71-72. To obtain habeas relief, a habeas
petitioner must be able to point to the Supreme Court
precedent which he thinks the state courts acted contrary to
or unreasonably applied. Buchheit v. Norris, 459
F.3d 849, 853 (8th Cir. 2006).
court's decision is “contrary to” clearly
established Supreme Court precedent “if the state court
either ‘applies a rule that contradicts the governing
law set forth in [Supreme Court] cases' or
‘confronts a set of facts that are materially
indistinguishable from a decision of [the] Court and
nevertheless arrives at a result different from [the]
precedent.'” Penry v. Johnson, 532 U.S.
782, 792 (2001) (citing Williams v. Taylor, 529 U.S.
362, 405-06 (2000)).
court decision is an unreasonable application of clearly
established Supreme Court precedent if it correctly
identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner's
case. Id. (citing Williams, 529 U.S. at
407-08). “[A] federal habeas court making the
‘unreasonable application' inquiry should ask
whether the state court's application of clearly
established federal law was objectively unreasonable.”
Id. at 793 (citing Williams, 529 U.S. at
409). “A state court decision involves ‘an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings,' 28
U.S.C. § 2254(d)(2), only if it is shown that the state
court's presumptively correct factual findings do not
enjoy support in the record.” Evanstad v.
Carlson, 470 F.3d 777, 782 (8th Cir. 2006). A
“readiness to attribute error is inconsistent with the
presumption that state courts know and follow the law.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002).
AEDPA's highly deferential standard demands that state
court decisions be given the benefit of the doubt.
presents five claims for review. First, Wilson asserts that
the trial court erred in allowing the State to re-open its
case after the defense had rested its case. Second, Wilson
contends that the trial court erred in overruling his motion
to suppress his confession to the police. Next, Wilson
asserts that his trial and appellate counsel were ineffective
for failing to object to the verdict directors. Finally,
Wilson asserts that post-conviction counsel was ineffective
for “not doing everything the Petitioner asked.”
Double Jeopardy Claim
first claim, Wilson asserts that the trial court erred in
allowing the State to re-open its case at the conclusion of
the trial. Wilson contends that the trial court made a
finding that the State had rested without presenting
sufficient evidence on Counts 17 through 20 and that that
ruling operated as an acquittal of those four counts.
Allowing the State to present additional evidence, Wilson
asserts, violates his right to be free from double jeopardy.
end of the prosecution's case, Wilson's counsel made
a motion for judgment of acquittal at the close of the
state's evidence. (Resp't Ex. P at 460.) The Court
overruled the motion. (Resp't Ex. P at 461-62.) After the
defense rested its case, the trial court stated the
I've talked to the attorneys informally about this. After
the State's motion - I mean, the defendant's motion
for judgment of acquittal at the end of the State's case,
which I denied, I was thinking that's somewhat
interlocutory. We should do it at the close of all the
I was thinking more about it. I looked back in my notes, and
I didn't find any indication of touching of the breasts,
which is the charge for the child, five child molestation
counts, except for the first one where the first time they
had intercourse. The victim [H.D.] testified that the
defendant put his hands under her brassiere and then
specifically said touched her breasts.
So, I asked the court reporter to, during our last break, to
look through her notes, and using keywords that she has on
her computer, she wasn't able to find any other
indication that [H.D.] ever said that the defendant touched
her breasts, specifically during all the contact they had.
So at this point, based on that evidence, I would be inclined
to sustain the defendant's motion for judgment of
acquittal on those - - on four of those five counts.
That's my thinking at this time.
(Resp't Ex. P at 551-52.) The State then moved to recall
H.D. and re-open the case to address the issue of whether
H.D. was touched on her breast multiple times. (Resp't
Ex. P at 552.) Defense counsel objected that reopening the
case was improper and a violation of Wilson's
constitutional rights to a fair trial and effective
assistance of counsel. (Resp't Ex. P at 552-53.) The
trial judge then stated:
In allowing the State or any party to re-open, I think the
fundamental purpose of these trials is to get to the truth of
the matter. So, I would, in weighing this, I think that the
truth is the most important matter in determining whether to
reopen so that the jury has all the evidence, unless there is
some fundamental procedural violation. And although there is
somewhat of a violation in that the State closed its case, if
you want to call it a violation, that's a rule. I just
don't see that it's fundamental to the point that it
would outweigh the truth-seeking ability of the Court in the
whole procedure. So, I know this is over the defendant's
objection. I'll allow the State to recall [H.D.] for just
that one purpose.
(Resp't Ex. P at 554-55.) After further argument, the
court allowed the State to re-call H.D. to the stand. H.D.
returned to the stand and testified that Wilson touched her
breasts with his hands over a hundred times, “every
time.” (Resp't Ex. P at 561.)
Missouri Court of Appeals found that the trial court's
language regarding its “inclination” to grant
Wilson's motion for judgment of acquittal, followed by
the permission to reopen the case, was not a final judgment
of acquittal. (Resp't Ex. C at 5-6.) The court of appeals
noted that Wilson was not surprised by the evidence, he had