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Wilson v. Lewis

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

May 14, 2019

KEVIN PAUL WILSON, Petitioner,
v.
JASON LEWIS[1], Respondent.

          MEMORANDUM AND ORDER

          NANNETTE A. BAKER, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         On 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.)

         The following evidence, in light most favorable to the verdict, was presented at trial:

         Wilson married H.D.[2]'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[3]).

         At 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).

         II. Standard of Review

         “The 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).

         For 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).

         A state 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)).

         A state 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. Id.

         III. Discussion

         Wilson 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.”

         A. Double Jeopardy Claim

         In his 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.

         At the 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 following:

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 evidence, too.
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.)

         The 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 an ...


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