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Martin v. Norman

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

July 18, 2019

DAVID L. MARTIN, Petitioner,
v.
JEFF NORMAN, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE

         This 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 Custody [1].

         I. BACKGROUND

         Petitioner 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.

         On 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.

         On 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.

         On 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.

         The 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 provocative.

ECF No. 21-5, pg. 696.[1]

         II. STANDARD

         “A 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 decision:

(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 § 2254(e)(1).

         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, 405-406 (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.” Id.

         III. DISCUSSION

         Petitioner 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.

         A. Procedurally Defaulted Claims

         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.

         Claims 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 procedurally defaulted.”).

         Claims 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 dismissed.

         B. Non-Cognizable Claims - Claims 3b and 3d

         1. Claim 3b

         In 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 ...


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