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Weinhaus v. Steele

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

August 13, 2019

JEFFREY WEINHAUS, Petitioner,
v.
TROY STEELE, Respondent.

          MEMORANDUM OPINION

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE

         This action is before the court upon the amended petition of Missouri state prisoner Jeffrey Weinhaus for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge under 28 U.S.C. § 636(c). For the reasons discussed below, the petition for a writ of habeas corpus is denied.

         I. BACKGROUND

         Petitioner Jeffrey Weinhaus was convicted by a jury in the Circuit Court of Franklin County, Missouri, of unlawful felony possession of morphine, misdemeanor possession of marijuana, first-degree assault on a law enforcement officer, and armed criminal action, for which he was sentenced to concurrent terms of imprisonment for two, one, thirty, and thirty years, respectively. His conviction was affirmed by the Missouri Court of Appeals on direct appeal. State of Missouri v. Weinhaus, 459 S.W.3d 916 (Mo.Ct.App. 2015). Petitioner moved for post-conviction relief under Missouri Supreme Court Rule 29.15, which was denied by the Circuit Court without a hearing. The Court of Appeals affirmed. Weinhaus v. State of Missouri, 501 S.W.3d 523 (Mo.Ct.App. 2016). After initially seeking relief in this Court under 28 U.S.C. § 2201, petitioner filed the instant petition under 28 U.S.C. § 2254.

         In its opinion regarding the motion for post-conviction relief, the Missouri Court of Appeals described the facts indicated by the trial evidence that supported the jury's verdict thus:

On August 18, 2012, Missouri State Highway Patrol Sergeant James Folsom (Sergeant Folsom) received a phone call from Missouri Circuit Court Judge Kelly Parker regarding a video Movant had posted online, in which Movant had threatened judicial officers, including Judge Parker. Sergeant Folsom reviewed the video. In it, Movant stated that “the People” will “fire” various Missouri officials including the State Courts Administrator, as well as various circuit judges, lawyers, and policemen. Movant also generally referenced corrupt officials and “[his] right to blast you mother [...]ers out of there if we have to.” Movant also stated “we have the right to remove you use [sic] of force.” Movant stated that “September 14 will be the last day of the Defacto Court. You all [are] fired and will be considered trespassers after that time.”
Sergeant Folsom also met with Crawford County officials. Sergeant Folsom discovered that the 911 dispatch center and the courthouse had increased their security because Movant had come to both places and “had put everyone on edge.” Sergeant Folsom consulted with other law enforcement officials, and they decided Sergeant Folsom should visit Movant in order to determine whether he actually intended to harm anyone.
On August 22, 2012, Sergeant Folsom and Corporal Scott Mertens (Corporal Mertens) went to Movant's home in Franklin County, Missouri. When Movant stepped outside his residence to speak with the State Troopers, they detected a strong odor of marijuana. After discussing the videos with Movant, the State Troopers asked Movant whether there was marijuana in the house. Movant replied that there was not. Sergeant Folsom and Corporal Mertens detained Movant until other State Troopers arrived, and Sergeant Folsom obtained a search warrant to search the house. During the search of Movant's basement, State Troopers seized drug paraphernalia, scales, a plastic container holding marijuana, a bag containing marijuana, and a small tin containing pills that were later identified as morphine. They also seized computer equipment and video cameras. They found a gun in the nightstand of a dresser in the master bedroom of the home, but it was properly registered to Movant's wife and was not evidence of any crime, so they did not seize it. After the search, Sergeant Folsom gave Movant an inventory of the items they had seized as well as Sergeant Folsom's business card.
Shortly thereafter, Movant began sending emails to Sergeant Folsom asking for the name of Sergeant Folsom's attorney. Movant also filed a writ of replevin requesting his computers back. Movant called Sergeant Folsom's supervisors complaining that Sergeant Folsom had stolen Movant's computer, and Movant also posted a video online in which he said he “should have placed a bullet in [Sergeant Folsom's] head.” Movant also posted a video stating he was at his home with his guns loaded.
In the meantime, Sergeant Folsom had met with his supervisors, and they had decided that they were going to arrest Movant for possession of drugs and judicial tampering. Sergeant Folsom contacted Movant and arranged to meet in a public place. Sergeant Folsom did not want to go to Movant's home, due to what Movant had said in the videos, and Sergeant Folsom was pleased to hear Movant make the initial suggestion to meet in a public place. Sergeant Folsom told Movant this meeting was for the purpose of returning Movant's computer equipment, but Sergeant Folsom planned to arrest Movant when they met. Sergeant Folsom also sought to have other law enforcement officials accompany him and Corporal Mertens when they met Movant. Sergeant Folsom contacted the Franklin County Sheriff's Department to assist in serving the arrest warrant, but no one was available. Sergeant Folsom then contacted two FBI agents they had worked with, who agreed to go.
The State Troopers and federal agents were all at the gas station where they had agreed to meet Movant before Movant arrived. Sergeant Folsom and Corporal Mertens parked in a visible area near the road so they could see Movant arrive, and the FBI agents were in plain clothes and were on the other side of the gas station. Movant pulled into the gas station at a high rate of speed and was removing his seatbelt as he drove past the State Troopers. Once Movant parked, Sergeant Folsom walked toward Movant's vehicle and began to talk to him. Sergeant Folsom was carrying a manila envelope containing the arrest warrant. Sergeant Folsom told Corporal Mertens to go to the back of the police vehicle and open the trunk so that Movant would believe Corporal Mertens was retrieving Movant's computer equipment.
Sergeant Folsom testified that Movant had exited his vehicle and was facing Sergeant Folsom in a “bladed position”: at ¶ 45-degree angle, with one foot in front of the other. Sergeant Folsom stepped around Movant's vehicle and saw a holster on Movant's right hip that contained a handgun. While asking Movant why he had a gun, Sergeant Folsom removed his own handgun from the holster on his hip and held it down by his side in front of his hip. Movant said he was authorized to have a gun, and he moved his right hand to his holster and began manipulating the flap on the holster. Sergeant Folsom ordered Movant to get down on the ground, and Movant did not comply, but turned and squarely faced Sergeant Folsom. Movant opened the flap of the holster and placed his hand on the buttstock of the weapon.
Sergeant Folsom raised his weapon and again ordered Movant to get on the ground. Corporal Mertens also ordered Movant to get down on the ground. Movant replied, “you're going to have to shoot me” and continued to draw his weapon. Sergeant Folsom saw the gun nearly out of the holster, and at that point he fired two shots into Movant's chest and one into Movant's head. Corporal Mertens also fired a shot at Movant because he believed Movant was a threat to Sergeant Folsom. Sergeant Folsom heard the shot and fired an additional shot into Movant's head. Movant collapsed onto the ground. Corporal Mertens called an ambulance while Sergeant Folsom handcuffed Movant and took Movant's gun from his hand, with FBI Agent Mike Maruschak covering Sergeant Folsom.
The State charged Movant with possession of a controlled substance (morphine), tampering with a judicial officer, possession of up to 35 grams of marijuana, assault of a law enforcement officer in the first degree (against Sergeant Folsom), assault of a law enforcement officer (against Corporal Mertens), two counts of armed criminal action, and resisting arrest. At trial, after the State presented testimony from Sergeant Folsom, the State offered a video into evidence. The video was taken from a camera that was on a watch that Movant had been wearing at the gas station, and it captured the entire incident. At the close of the State's evidence at trial, the trial court granted Movant's motion for judgment of acquittal on the charges of tampering and resisting arrest. The trial court concluded that Movant's threats against judicial officers in his video were not sufficient to support the charge of tampering, and that there was no evidence Movant was aware he was being arrested when he met the State Troopers at the gas station.

Weinhaus v. State of Missouri, 501 S.W.3d 523, 525-27 (Mo.Ct.App. 2016).

         II. PETITIONER'S PLEADINGS IN FEDERAL COURT

         Petitioner commenced this action on July 10, 2017, by filing a judicial complaint in this Court. (Doc. 1). In that complaint of 225 enumerated paragraphs he sought a declaratory judgment under 28 U.S.C. § 2201 and injunctive relief that he be set free of Missouri state imprisonment, that the judgment of conviction be vacated, that he be barred from further prosecution, and any other appropriate relief, including a retrial. (Id. at 41). He joined as defendants the Director of the Missouri Department of Corrections, the Warden of the Missouri Eastern Reception Diagnostic and Correctional Center, the Attorney General of Missouri, the Sheriff of Franklin County, and the Commanding Officer of the Missouri Highway Patrol. (Id.). Following defendants' motions to dismiss for failure to state a claim, petitioner Weinhaus voluntarily dismissed his claims against all defendants, except Warden Troy Steele. (Doc. 23).

         On November 3, 2017, petitioner filed his amended petition for habeas corpus relief under 28 U.S.C. § 2254. (Doc. 25). He alleges six grounds for relief:

(1) His Sixth Amendment right to effective assistance of counsel was violated because his defense counsel:
(a) failed to place FBI agents on the defense's witness list;
(b) failed to offer a screen capture or still photographs of the video made by his digital watch as evidence;
(c) generally lacked the ability to cross-examine prosecution witnesses;
(d) failed to call the County Sheriff as a witness;
(e) failed to object to the stun cuff device worn by petitioner at trial;
(f) failed to request a mistrial after the judicial tampering charges were dismissed by the trial judge;
(g) failed to call witnesses to show that petitioner was incapable of committing the crimes he was convicted of;
(h) failed to demand that the jury be advised of why the trial court dismissed the charge of tampering with a judicial officer; and
(i) failed to move to strike the YouTube video after the judicial tampering charge was dismissed.
(2) His First Amendment right to freedom of speech was violated, because the purpose of his arrest was to silence his political activities, and, while the search warrant was issued based on an alleged smell of marijuana, the purpose of the search was to seize petitioner's computers. Petitioner further alleges that the evidence so obtained should have been excluded as fruit of the poisonous tree.
(3) The Fourth Amendment was violated, because the search warrant was granted for drug-related reasons, but the searching officers seized his computer equipment and did not comply with the warrant's procedural requirements.
(4) The Eighth Amendment prohibition of cruel and unusual punishment was violated, because he was required to wear a stun device at trial.
(5) His Fifth and Fourteenth Amendment right to due process was violated when the court did not declare a mistrial sua sponte following petitioner's acquittal on the judicial tampering and resisting arrest charges; when the court did not provide a limiting instruction relating to the YouTube video; and when the court did not allow the jury to view screen captures of the wrist watch video.
(6) His Fourteenth Amendment right to equal protection was violated for many of the reasons described in grounds 1-5.

         Respondent contends that some of petitioner's claims in Ground 1 are procedurally barred, because he failed to properly raise them during the post-conviction relief motion proceedings, while the remaining claims were rejected on the merits by the Missouri Court of Appeals. Respondent contends that the claims listed in Grounds 2 and 3 are procedurally barred, and to the extent the claims in Grounds 2 and 3 are Fourth Amendment claims, they are not cognizable in this § 2254 habeas proceeding pursuant to the Supreme Court's ruling in Stone v. Powell, 428 U.S. 465 (1976). Respondent contends that Ground 4 is not a challenge to current confinement cognizable under § 2254, is procedurally barred, and is without merit. Respondent contends that some of the claims raised in Ground 5 were correctly refuted on the merits by the Missouri Court of Appeals, and the remainder are procedurally barred and without merit. Respondent contends that the various claims asserted in Ground 6 fail for reasons discussed regarding Grounds 1-5, while any new claims raised within this ground are either procedurally barred or correctly decided on the merits by the Missouri Court of Appeals.

         III. EXHAUSTION AND PROCEDURAL BAR

         “Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). A federal court may not consider habeas claims unless the petitioner has exhausted procedures for litigating those claims in the state courts, there is an absence of available corrective process in the state courts, or the state process is “ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). A state law remedy is not considered exhausted if the petitioner has the right to raise the ground by an available state law procedure. 28 U.S.C. § 2254(c).

         A federal court reviewing a state conviction “may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules.” Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (quoting Beaulieu v. Minnesota, 583 F.3d 570, 573 (8th Cir. 2009)). “In Missouri, ‘a claim must be presented at each step of the judicial process in order to avoid default.'” Arnold, 675 F.3d at 1087 (quoting Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994)). A procedural bar prevents adjudication on the merits unless (1) petitioner can show legally sufficient cause for his default in the state courts and actual prejudice resulting from the alleged violation of federal law, or (2) petitioner can show that failure to consider his federal habeas grounds would result in “a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, if a state court decides an issue on the merits despite a procedural default, “no independent and adequate state ground bars consideration of that claim by a habeas court.” Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir. 1997).

         Under Missouri law, there are two options available to a petitioner seeking relief from his conviction following a trial: (1) direct appeal; and (2) a motion for post- conviction relief under Missouri Supreme Court Rule 29.15. A Rule 29.15 motion is the proper avenue for contesting the constitutionality of a conviction or sentence, including ineffective assistance of counsel. Mo. S.Ct. R. 29.15(a).

         On direct appeal to the Missouri Court of Appeals, petitioner alleged eight points of error: (1) there was insufficient evidence to support his conviction on the attempted assault charge; (2) the trial court erred in overruling petitioner's motion for judgment of acquittal at the close of evidence and that there was insufficient evidence to support the jury instruction regarding first degree assault of a law enforcement officer; (3) the trial court plainly erred by submitting the jury instruction regarding first degree assault of a law enforcement officer; (4) there was insufficient evidence to support the possession of morphine charge; (5) there was insufficient evidence to support the possession of marijuana charge; (6) the trial court erred by denying petitioner's motion to sever the count of judicial tampering (of which petitioner was ultimately acquitted) from the remaining counts, because evidence relevant for the judicial tampering charge was irrelevant and inflammatory on the other charges; (7) the trial court plainly erred by failing to declare a mistrial sua sponte after granting petitioner's motion for judgment of acquittal on the judicial tampering charge; and (8) the trial court erred by overruling petitioner's objections to the state's evidence of other weapons found in petitioner's car. (Doc. 27-10, at 19-27). The Circuit Court's judgment was affirmed. (Doc. 27-14).

         Following the Court of Appeals' affirmance on direct appeal, petitioner filed a motion for post-conviction relief under Missouri Rule 29.15. In that motion he alleged specifications of ineffective assistance of counsel that included the following, which were denied by the Circuit Court: (1) counsel failed to call a crime scene forensic expert at trial; (2) counsel failed to call the FBI agents who were present at the gas station as witnesses; (3) counsel failed to call Levi Weinhaus to testify that petitioner wore his holster on his left hip while driving his vehicle instead of on his right, contradicting the testimony of the police officers; and (4) counsel failed to call a video expert to testify that petitioner's words on the video were actually “you don't have to shoot me, ” rather than “you're going to have to shoot me.” (Doc. 27-17, at 14-17). The Missouri Court of Appeals considered each of these points on the merits and concluded that petitioner did not allege facts which, if true, would establish that his trial counsel's assistance was constitutionally ineffective. Weinhaus, 501 S.W.3d at 531.

         Congress has authorized this Court to consider procedurally barred grounds and to dismiss them, if they are without merit. 28 U.S.C. § 2254(b)(2).

         IV. STANDARD OF REVIEW

         For those federal habeas grounds that were raised and decided on their merits by the Missouri courts, Congress has authorized federal habeas corpus relief only when the state court adjudication of such a ground:

(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) (Antiterrorism and Effective Death Penalty Act (AEDPA)).

         State court decisions are “contrary to” clearly established federal law only when they reach conclusions on questions of law opposite Supreme Court decisions, or if they reach decisions contrary to Supreme Court decisions on materially indistinguishable facts. Arnold v. Dormire, 675 F.3d 1082, 1085 (8th Cir. 2012) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). “A state court decision involves an ‘unreasonable application' [of federal law] when it identifies the correct legal rule, but unreasonably applies it to the facts” of a prisoner's case. Arnold, at 1085; Evenstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). Review under § 2254(d)(1) is limited to the record that was before the state court which adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).

         Determinations of factual issues made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1). For habeas relief under § 2254(d)(2), a petitioner must show that “the state court's presumptively correct factual findings do not enjoy support in the record.” Evenstad, 470 F.3d at 782. The petitioner must rebut the presumption that state court factual findings are correct by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         For those grounds asserted by petitioner that were not ruled on their merits by the Missouri courts, the pre-AEDPA standard for habeas review governs. Gingras v. Weber, 543 F.3d 1001, 1003 (8th Cir. 2008) (“Because [petitioner's] apparently unexhausted claim was not adjudicated on the merits, we likely should apply the pre-AEDPA standard of review, rather than the deferential standard of 28 U.S.C. § 2254(d).”) (internal citations and quotations omitted). In order to prevail under this pre-AEDPA standard, petitioner must show a “reasonable probability that the error complained of affected the outcome of the trial, or that the verdict likely would have been different absent the now challenged [defect].” Robinson v. Crist, 278 F.3d 862, 865-66 (8th Cir. 2002).

         The AEDPA limits entitlement to an evidentiary hearing in this Court. If a federal habeas petitioner failed to develop the factual basis of a federal habeas ground in state court proceedings, no ...


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