United States District Court, E.D. Missouri, Eastern Division
DAVID L. MARTIN, Petitioner,
JEFF NORMAN, Respondent.
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner David Lee
Martin's Pro Se Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State
David Lee Martin (“Petitioner”) was convicted by
jury on six counts of child molestation, two counts of victim
tampering, and three counts of third-degree assault.
Subsequently, Petitioner was sentenced as a persistent sexual
offender to life imprisonment for the child molestation
offenses, fifteen years imprisonment for the victim tampering
offenses, and fifteen days for the third-degree assault
offenses, all sentences to run concurrently.
direct appeal, Petitioner's convictions and sentences
were affirmed. The appellate court issued its mandate on July
10, 2015. On July 16, 2015, Petitioner timely filed a pro
se motion pursuant to Rule 29.15. On July 24, 2015, the
post-conviction motion court (“the motion court”)
appointed a public defender to represent Petitioner.
Accordingly, any amended motion was due by September 22,
2015. See Rule 29.15(g). On October 15, 2015,
Petitioner requested an extension of time to file an amended
motion, but the motion was not ruled on by the motion court.
On October 22, 2015, Petitioner filed an amended motion.
October 26, 2015, the motion court issued an order observing
post-conviction counsel had not filed a timely amended
motion. The motion court stated there was a presumption of
abandonment, and it ordered counsel to “file a written
statement, not later than November 27, 2015, providing an
explanation of counsel's failure to file either an
amended motion or a Rule 29.15(e) statement.”
On November 27, 2015, counsel filed a response. Based on the
facts alleged in counsel's response, the motion court
found Petitioner had been abandoned by counsel,
i.e., counsel's failure “to file a timely
amended motion was not the result of the negligent or
intentional conduct of Petitioner.” The motion court
permitted the untimely filing of the amended motion.
August 2, 2016, the motion court granted relief on
Petitioner's claim trial counsel was ineffective for
failing to object to sentencing as a persistent sexual
offender; the court ordered “[t]he designation of
Petitioner as a persistent sexual offender [be] . . .
stricken from the judgment” in his criminal case. The
court denied the remainder of Petitioner's claims. On
October 6, 2015, Petitioner filed the instant petition for
writ of habeas corpus under 28 U.S.C. § 2254.
Missouri Court of Appeals, Eastern District, described the
facts of Petitioner's convictions as follows:
Defendant does not challenge the sufficiency of the evidence
to support his convictions. The facts relevant to this appeal
are as follows. The State charged Defendant with seven counts
of first-degree child molestation, two counts of victim
tampering, and three counts of third-degree assault. Each
count related to eleven-year-old victim S.P. and to the
timeframe of January 1, 2011 to April 30, 2011. The charges
for the child molestation counts alleged Defendant touched
S.P.'s genitals and breasts through her clothing. The
charges for the victim tampering counts alleged Defendant
purposely prevented or dissuaded S.P. from making any report
of first-degree child molestation to authorities. Finally,
the charges for the third-degree assault counts alleged, (1)
Defendant knowingly caused physical contact with S.P. by
touching her genitals or breasts through her clothing, by
kissing her, and by slapping her on the rear; and (2)
Defendant knew S.P. would regard such conduct as offensive or
ECF No. 21-5, pg. 696.
state prisoner who believes that he is incarcerated in
violation of the Constitution or laws of the United States
may file a petition for writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254.” Osborne
v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005). In order
for a federal court to grant an application for a writ of
habeas corpus brought by a person in custody by order of a
state court, the petitioner must show the state court
(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). 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. Id. at
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, 405-406 (2000)). An unreasonable application of clearly
established Supreme Court precedent is found where the state
court identifies the correct governing legal principle but
unreasonably applies that principle to the facts of the case.
Ryan v. Clark, 387 F.3d 785, 790 (8th Cir. 2004).
Finally, a state court decision may be considered an
unreasonable determination of the facts “only if it is
shown that the state court's presumptively correct
factual findings do not enjoy support in the record.”
asserts multiple claims in his petition: (1) Petitioner's
Equal Protection Clause rights were violated by the
prosecutor's use of peremptory challenges; (2) The trial
court erred by overruling two defense objections to the
prosecutor's closing arguments; (3) Petitioner received
ineffective assistance of counsel for five different reasons;
(3a) Counsel was ineffective for allowing trial court to find
Petitioner had been previously convicted of an offense under
chapter 566; (3b) Appellate counsel was ineffective because
they failed to brief the putative error of the previous
conviction under chapter 566 on appeal; (3c) Trial counsel
was ineffective because they should have requested the trial
court give an instruction for second-degree child molestation
as a lesser-included offense; (3d) Trial counsel was
ineffective because they did not object to the prosecutor
testifying at trial; and (3e) Trial counsel was ineffective
because they did not advocate for a mistrial at two points in
the trial. The Court will address each claim as follows.
Procedurally Defaulted Claims
1 and 2 of Petitioner's motion are procedurally defaulted
and must be dismissed. Petitioner must first raise each claim
presented in his federal habeas petition in state court
proceedings. Interiano v. Dormire, 471 F.3d 854, 856
(8th Cir. 2006). Claims not presented in state court
proceedings, and for which there is no remaining state court
remedy, are defaulted. Id. To overcome a procedural
default, a petitioner must show cause for not presenting the
claim in state court, and prejudice from the failure, or a
fundamental miscarriage of justice. Storey v. Roper,
603 F.3d 507, 523 (8th Cir. 2010). Cause for a procedural
default ordinarily occurs when the petitioner can show
“some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule.” Murray v. Carrier, 477 U.S.
478, 488 (1986). In order to establish a fundamental
miscarriage of justice, a petitioner must present “new
reliable evidence that he was innocent of the crime of which
he was convicted.” Storey, 603 F.3d at 524.
1 and 2 were not raised by Petitioner in either his PCR
motion or his PCR appeal. Therefore, they are procedurally
defaulted and must be dismissed. See Storey, 603
F.3d at 523 (“Storey did not appeal this finding in his
state post-conviction appeal, and it is therefore
1 and 2 would not otherwise be dismissed if Petitioner could
show cause and prejudice for not presenting the claims in
state court or if he can show existence of a fundamental
miscarriage of justice. Petitioner cannot establish either
option. He has presented no new evidence he is innocent of
the crime for which he was convicted and he has not presented
any external factors which impeded his ability to present his
claims to the state court. Petitioner has not overcome the
procedural default of these claims, and they will be
Non-Cognizable Claims - Claims 3b and 3d
claim 3b, Petitioner asserts he was denied effective
assistance of post-conviction counsel in violation of the
Fifth, Sixth, and Fourteenth Amendments of the United States
Constitution because his PCR counsel did not brief the
putative error of the trial court finding Petitioner had been
convicted of an offense under Chapter 566.
“See § 566.067.2(2), RSMo Cum. Supp.
2013.” There is no federal constitutional right to
post-conviction counsel. Cox v. Burger, 398 F.3d
1025, 1030 (8th Cir. 2005). Thus, it is not a ground for
habeas relief. Id. See also 28 U.S.C.
§ 2254(i) (“The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction