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Davis v. Payne

United States District Court, W.D. Missouri, Western Division

August 30, 2019

RICHARD D. DAVIS, Petitioner,
v.
STAN PAYNE,[1] Acting Warden of Potosi Correctional Center, Respondent.

          OPINION AND ORDER

          BRIAN C. WIMES, UNITED STATES DISTRICT COURT JUDGE

         Before the Court is Richard D. Davis's Petition for Writ of Habeas Corpus (Doc. #21), Amended Petition for Writ of Habeas Corpus (Doc. #24), and Supplemental Petition for Writ of Habeas Corpus (Doc. #42). The Court, being duly advised of the premises, denies said petitions for relief.

         BACKGROUND

         On July 31, 2008, Petitioner was convicted by a jury in the Circuit Court of Jackson County, Missouri, of twenty-five felony counts: one count of first-degree murder, Mo. Rev. Stat. § 565.020, two counts of kidnapping, Mo. Rev. Stat. § 565.110, two counts of felonious restraint, Mo. Rev. Stat. § 565.120, three counts of aggravated sexual abuse, Mo. Rev. Stat. § 566.100, nine counts of forcible sodomy, Mo. Rev. Stat. § 566.060, four counts of forcible rape, Mo. Rev. Stat. § 566.030, and four counts of first-degree assault, Mo. Rev. Stat. § 565.050.

         The jury recommended Petitioner be sentenced to death on the first-degree murder conviction. The Court sentenced Petitioner in accordance with this recommendation. Petitioner was otherwise sentenced to life imprisonment on each of the remaining counts, except for two counts of aggravated sexual abuse, for which Petitioner was sentenced to fifteen years' imprisonment.

         At the trial phase, Petitioner was represented by the Missouri State Public Defender System. Initially, non-capital counsel Curtis Winegarner and Timothy Burdick represented Petitioner. After October 16, 2006, the date of the State of Missouri's notice of intent to seek the death penalty, capital public defenders Thomas Jacquinot and Susan Elliot entered their appearances on Petitioner's behalf.[2]

         Petitioner, through appellate public defender Deborah Wafer, [3] appealed the trial court's findings to the Missouri Supreme Court. The Missouri Supreme Court affirmed Petitioner's conviction and sentence on June 29, 2010 and issued its mandate on August 31, 2010. Missouri v. Davis, 318 S.W.3d 618 (Mo. 2010). Petitioner sought review of the Missouri Supreme Court decision to the Supreme Court of the United States, but Petitioner's petition for writ of certiorari was denied on March 7, 2011. Davis v. Missouri, 562 U.S. 1273 (2011).

         On November 23, 2010, Petitioner filed a pro se motion for postconviction relief under Mo. Sup. Ct. R. 29.15. Public defenders Robert Lundt and Loyce Hamilton[4] were appointed to represent Petitioner for purposes of postconviction relief (“PCR”). PCR counsel filed an amended petition, with a pro se supplement, on March 1, 2011. On October 1, 2014, the trial court, after holding evidentiary hearings, denied Petitioner's PCR motion. (Doc. #24-1).

         Petitioner appealed the denial of his PCR motion to the Missouri Supreme Court through public defender Kent Denzel.[5] On April 5, 2016, the Missouri Supreme Court affirmed the trial court's findings denying Petitioner's PCR motion. Davis v. Missouri, 486 S.W.3d 898 (Mo. 2016). The Missouri Supreme Court denied Petitioner's motion for rehearing on May 24, 2016.

         On the same day, Petitioner filed a motion to proceed in forma pauperis in this Court. (Doc. #1). On June 2, 2016, the Court granted Petitioner's motion to proceed in forma pauperis in death penalty habeas action and appointed as Petitioner's counsel Jennifer Merrigan and Joseph Perkovich. 18 U.S.C. § 3599(a); (Docs. #3 & #4).

         On May 24, 2017, Petitioner filed a petition for writ of habeas corpus (Doc. #21). Thereafter, Petitioner filed an amended petition (Doc. #24), and a supplemental petition (Doc. #42). On February 26, 2018, Respondent filed its opposition brief to Petitioner's filings. (Doc. #52). On November 9, 2018, Petitioner filed a traverse. (Doc. #61).

         Petitioner asserts twelve broad grounds for habeas relief, as follows:

Ground 1: Trial counsel labored under a conflict of interest against Petitioner, in violation of his right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 2: Trial counsel defaulted the opportunity to establish Petitioner was incompetent to stand trial, in violation of Petitioner's right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 3: The trial court, through misstatements of law, violated Petitioner's right to proceed pro se in violation of the 5th, 6th, and 14th Amendments, and Faretta v. California, 422 U.S. 806 (1975).
Ground 4: Trial counsel failed to object to the trial court's misstatements of law, in violation of Petitioner's right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 5: Trial counsel provided ineffective assistance during the guilt phase of Petitioner' trial, in violation of Petitioner's right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 6: Trial counsel erroneously restricted Petitioner's right to testify during the guilt phase of the trial, in violation of Petitioner's right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 7: Trial counsel failed to investigate, develop, and present compelling evidence during the penalty phase of Petitioner's trial, in violation of Petitioner's right to effective assistance of counsel under the 6th, 8th, and 14th Amendments.
Ground 8: Trial counsel failed to offer adequate mitigation evidence in response to the State's aggravators evidence during the penalty phase of Petitioner's trial, in violation of Petitioner's right to effective assistance of counsel.
Ground 9: Instances of prosecutorial misconduct, individually and collectively, violated Petitioner's rights under the 5th, 6th, 8th, and 14th Amendments.
Ground 10: The trial court erred in declining to order that certain parts of Petitioner's trial be transcribed for adequate review on direct appeal and post-conviction proceedings, and trial counsel was ineffective for failing to ensure the entirety of the trial transcript was transcribed, in violation of Petitioner's right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 11: The trial court erred in denying Petitioner's motion to strike juror Adam Powell for cause, and trial counsel was ineffective for failing to use a peremptory strike against Powell, in violation of Petitioner's right to effective assistance of counsel under the 6th and 14th Amendments.
Ground 12: Direct appeal counsel failed to raise plainly meritorious claims in the direct appeal of Petitioner's conviction and sentence to the Missouri Supreme Court, in violation of Petitioner's right to effective assistance of counsel under the 14th Amendment.

         LEGAL STANDARD

         A prisoner in state custody may petition a federal court for a writ of habeas corpus “only on the ground that [s]he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254.

         “Sections 2254(b) and (c) provide that a federal court may not grant such applications unless, with certain exceptions, the applicant has exhausted state remedies.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         Section 2254(d) sets forth an additional limit “[i]f an application includes a claim that has been adjudicated on the merits in State court proceedings.” Id.

         A federal court may not grant habeas relief on a claim that has been ruled on the merits by a state court unless one of the two conditions are present:

(1) the state court adjudication “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) the state court adjudication “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.” Epkins v. Norman, No. 4:11 CV 1546 DDN, 2014 WL 51353, at *4-*5 (E.D. Mo. Jan. 7, 2014) (citing 28 U.S.C. § 2254(d)(1)-(2)).

         Regarding the first circumstance under which a federal court might grant relief under § 2254, a state court decision is contrary to clearly established federal law if it sets forth a conclusion that is opposite of that reached by the Supreme Court of the United States on a question of law. Thaler v. Haynes, 130 S.Ct. 1171, 1174 (2010). A state court decision is also contrary to clearly established federal law if the state court “decides a case different than the [Supreme] Court on a set of materially indistinguishable facts.” Epkins, 2014 WL 51353, at *5 (citing id.). Additionally, a state court decision involves an unreasonable application of clearly established federal law where “the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts” presented under the circumstances of the petitioner's case. Id.

         Regarding the second circumstance under which a federal court might grant relief under § 2254, a federal court finding the state court's decision to be based on an unreasonable determination of the facts must adhere to the following premises: (1) the state court's factual findings are presumed correct; (2) the federal court's review is limited to the record before the state court that adjudicated the claim on its merits; and (3) habeas relief is proper only if the petitioner presents “[c]lear and convincing evidence that [the state court's] factual findings lack evidentiary support.” Id. (citing 28 U.S.C. § 2254(e)(1); Wood v. Allen, 240 S.Ct. 841, 845 (2010)).

         Under the AEDPA, a federal court may “exercise only limited and deferential review of underlying State court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). A § 2254 petitioner may obtain federal habeas relief only if he or she shows “that the challenged State court ruling rested on an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Boyd v. Steele, No. 4:13CV257 CDP, 2016 WL 880389, at *2 (E.D. Mo. Mar. 6, 2016) (citing Metrish v. Lancaster, 133 S.Ct. 1781, 1786-87 (2013) (quoting Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011))).

         ANALYSIS

         Petitioner's claims fall into one of three categories: (1) ineffective assistance of counsel;[6](2) trial court error;[7] and (3) prosecutorial misconduct.[8] Respondent argues none of Petitioner's claims, under the applicable standards implicated by these categories, entitle Petitioner to relief, or even an evidentiary hearing under § 2254.

         A. Petitioner's claims are timely filed.

         A federal court may only consider a timely petition for relief. Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir. 2003). A petition for writ of habeas corpus must be filed within one year of final judgment by the state court. 28 U.S.C. § 2244(d)(1). The limitations period is triggered by the latest of four events: (1) the date on which the judgment became final by conclusion of direct review; (2) the date on which the impediment to filing is removed; (3) the date on which the constitutional right asserted was recognized and made retroactive; and (4) the date on which the factual predicate was discoverable through due diligence. 28 U.S.C. § 2244(1)(A)-(D). “Section 2244(d)(2) specifies that this limitations period does not include the time during which a properly filed application for state collateral review is pending in the state courts.” Payne v. Kemna, 441 F.3d 570, 571 (8th Cir. 2006) (citing 28 U.S.C. § 2244(d)(2)). State collateral review is considered “pending, ” until final resolution through state procedures. Id. (citing Carey v. Saffold, 536 U.S. 214 (2002).

         In this case, the Missouri Supreme Court denied rehearing and entered its mandate on Petitioner's PCR appeal on May 24, 2016. Petitioner filed the instant habeas petition exactly a year later, on May 24, 2017. Petitioner's habeas petition is thus timely filed on the last day of the limitations period. Payne, 441 F.3d at 571. Further, the Court considers Petitioner's amended and supplemental petitions as relating back to the original petition. Fed.R.Civ.P. 15(c).

         B. Petitioner has exhausted state remedies.

         “Sections 2254(b) and (c) provide that a federal court may not grant such applications [for habeas relief] unless, with certain exceptions, the applicant has exhausted state remedies.” Cullen, 563 U.S. at 181. The exhaustion requirement is met if the petitioner “has either fairly presented his claims first in state court, or if there are no currently available non-futile state remedies.” Smith v. Bowersox, No. 4:04CV00074 RWS (FRB), 2007 WL 748462, at *4 (E.D. Mo. Mar. 7, 2007) (citing Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988)). If the petitioner demonstrates exhaustion through either of these means, the federal court “still may not reach the merits of the petitioner's claim unless the petitioner: (1) demonstrates adequate cause to excuse his state court default, and actual prejudice resulting from the alleged unconstitutional error; or (2) that a fundamental miscarriage of justice would occur in the absence of federal review.” Smith, 2007 WL 748462, at *4 (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

         Respondent does not dispute Petitioner has exhausted his available state remedies, and the claims not fairly presented to the state courts are procedurally barred under Missouri law. State ex rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. 1993).

         1. Martinez may apply to excuse procedural default for Petitioner's ineffective assistance claims.

         Generally, “[a] claim is procedurally defaulted if a habeas petitioner failed to raise it in state proceedings.” Wooten v. Norris, 578 F.3d 767, 777 (8th Cir. 2012). A petitioner's failure to fairly present the substance of each asserted federal ground to the trial and appellate courts at the state level, including following all state procedural rules for presenting a federal claim to the state courts, results in a procedural bar to the federal court's consideration of that claim. Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011); King v. Kemna, 266 F.3d 816, 821 (8th Cir. 2001); Sweet v. Delo, 125 F.3d 1144, 1149-50 (8th Cir. 1997); Coleman, 501 U.S. at 750.

         “In order to fairly present a federal claim to the state courts, the petitioner must have referred to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue in a claim before the state courts.” McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997).

         Under certain circumstances, procedural default may be excused, “and open the door to federal review of an applicant's otherwise defaulted claim.” Wooten, 578 F.3d at 777. “Similarly, if some impediment external to the applicant is responsible for the omissions in the state-court factual record or if the applicant can show cause and prejudice regarding the omissions, federal courts may grant an evidentiary hearing on the merits.” Id. (citing Williams v. Taylor, 529 U.S. 420, 431-32 (2000)).

         A petitioner can overcome a claim's procedural default upon demonstration of “cause for the default and actual prejudice as a result of the alleged violation of federal law”; or a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Under Coleman, “ineffective assistance of counsel during state post-conviction proceedings cannot serve as cause to excuse factual or procedural default.” Wooten, 578 F.3d at 778 (citing Coleman, 501 U.S. 752-55).

         In Martinez v. Ryan, the Supreme Court considered “whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented in state court due to an attorney's errors in an initial-review collateral proceeding.” 566 U.S. 1, 4 (2012). The holding in Martinez creates an exception to a procedural default, as follows:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at 17. In sum, a habeas petitioner may show cause to excuse the procedural default of a claim for ineffective assistance of trial counsel if state law allows the claim for the first time on collateral review, [9] and petitioner demonstrates: (1) post-conviction counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984); and (2) the otherwise defaulted claim of ineffective assistance of trial counsel under Strickland v. Washington “is a substantial one, ” meaning that the claim of ineffective assistance of trial counsel has some merit. Martinez, 566 U.S. at 14.

C. Petitioner's claims of ineffective assistance asserted in Grounds 1, 2, 3, 4, 5, 6, 7, 8, 10 in part, 11 in part, and 12 are denied.

         Petitioner's Grounds 1, 2, 3, 4, 5, 6, 7, 8, 10 in part, and 11 in part argue Petitioner is entitled to § 2254 relief based on ineffective assistance of trial counsel. Petitioner's Ground 12 also asserts a claim for ineffective assistance of direct appeal counsel. In opposition, Respondent argues none of these claims for ineffective assistance are substantial, such that Martinez may not apply to excuse procedural default.

         A claim for ineffective assistance of counsel arising under the 6th and 14th Amendments is assessed under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish a right to relief under Strickland, a petitioner must show the ...


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