United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Petition of Eugene
McAllister for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. (ECF No. 1) The Petition is fully briefed and
ready for disposition.
Eugene McAllister ("Petitioner" or
"McAllister") is currently incarcerated at the
Northeast Correctional Center ("NECC") located in
Bowling Green, Missouri pursuant to the judgment and sentence
of the Circuit Court of St. Louis County, Missouri.
(Resp't's Ex. 3 pp. 42-46, ECF No. 10-5) On February
28, 2012, a jury found Petitioner guilty of two counts of
first degree assault on a law enforcement officer, two counts
of armed criminal action, and one count of unlawful use of a
weapon by discharging a firearm from a motor vehicle.
(Id. at pp. 35-39, 42-43) On April 26, 2012, the
court sentenced him to concurrent terms of 20 years'
imprisonment on each of the assault and armed criminal action
counts, and a concurrent term of 15 years on the discharging
a weapon from a motor vehicle count. (Id. at pp.
44-45) Petitioner filed a direct appeal, and on May 28, 2013,
the Missouri Court of Appeals affirmed the judgment of the
trial court. (Resp't's Ex. 7, ECF No. 10-9)
Petitioner then filed a pro se Motion to Vacate, Set
Aside, or Correct Judgment or Sentence pursuant to Missouri
Supreme Court Rule 29.15 on July 3, 2013. (Resp't's
Ex. 9 pp. 4-41, ECF No. 10-11) Appointed counsel filed an
amended Rule 29.15 motion on September 21, 2013.
(Id. at pp. 48-62) On May 13, 2014, the motion court
denied Petitioner's motion for post-conviction relief.
(Id. at pp. 66-77) The Missouri Court of Appeals
affirmed the judgment of the motion court in a decision dated
August 25, 2015. (Resp't's Ex. 12, ECF No. 10-14) On
April 20, 2016, Petitioner filed the present petition for
habeas relief in federal court. (ECF No. 1)
Factual Background 
January 26, 2011, St. Louis police officer attempted to pull
over a gray Dodge Stratus ("vehicle") pursuant to a
traffic violation. The vehicle sped away on the wrong side of
the road, and Officers Joseph Percich and Derik Jackson were
dispatched to assist in the vehicle pursuit. The vehicle took
a ramp, and as the officers proceeded behind, passengers in
the rear seats raised themselves outside the windows and
pointed handguns at the officers' car. Officer Percich
identified McAllister as the individual on the rear
driver's side. In addition, Officer Percich testified at
trial the he saw McAllister fire one round from the revolver
at the police car. Officer Jackson distinctly heard one shot
fired at the police car, but both officers testified that
more rounds could have been fired in rapid succession. When
the vehicle finally came to a stop, the officers observed
McAllister in the backseat with the grip of the handgun
between his legs. The gun, a Smith & Wesson revolver,
remained on the seat where McAllister had been sitting and
contained five empty cartridges.
Petition, McAllister raises five grounds for federal habeas
relief. These grounds are as follows:
(1) The evidence was insufficient to convict Petitioner of
two counts of assault on a law enforcement officer and two
counts of armed criminal action because Petitioner only
discharged one shot at the police car;
(2) Trial counsel was ineffective for failing to request
lesser included offense instructions for second-degree
assault on a law enforcement officer;
(3) Trial counsel was ineffective for failing to obtain
police dispatch tapes;
(4) Trial counsel was ineffective for failing to call
Petitioner's co-defendants as witnesses; and
(5) Post-conviction counsel was ineffective for failing to
raise a claim in the amended post-conviction motion that the
prosecutor knowingly used perjured testimony at trial.
the Anti-Terrorism and Effective Death Penalty Act (AEDPA),
federal courts review state court decisions under a
deferential standard. Owens v. Dormire, 198 F.3d
679, 681 (8th Cir. 1999). "[A] district court shall
entertain an application for a writ of habeas corpus . . .
only on the ground that [the petitioner] is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a). Further, a
federal court may not grant habeas relief unless the claim
adjudicated on the merits in state court '"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.'" Owens, 198 F.3d at 681 (quoting
28 U.S.C. § 2254(d)(1)). Findings of fact made by a
state court are presumed to be correct, and the petitioner
has the burden of rebutting this presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). See
also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997)
(state court factual findings presumed to be correct where
fairly supported by the record).
the 'contrary to' clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor,
529 U.S. 362, 412-413 (2000). With regard to the
"unreasonable application" clause, "a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle
to the facts of the prisoner's case." Id.
at 413; see also Bucklew v. Luebbers 436 F.3d 1010,
1016 (8th Cir. 2006); Roman v. Roper, 436 F.3d 951,
956 (8th Cir. 2006). In other words, "a federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. Rather that application must also
be .. unreasonable." Williams, 529 U.S. at 411.
preserve a claim for federal habeas review, a petitioner must
present the claim to the state court and allow that court the
opportunity to address petitioner's claim. Moore-El
v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation
omitted). "Where a petitioner fails to follow applicable
state procedural rules, any claims not properly raised before
the state court are procedurally defaulted."
Id. A federal court will consider a defaulted habeas
claim "only where the petitioner can establish either
cause for the default and actual prejudice, or that the
default will result in a fundamental miscarriage of
instant case, Respondent asserts that all the claims are
without merit. Further, Respondent contends that two of
Petitioner's claims are procedurally barred from federal
habeas review because Petitioner failed to pursue the claims
in state court, and one claim is non-cognizable.
first claims that the evidence was insufficient to convict
Petitioner of two counts of assault on a law enforcement
officer and two counts of armed criminal action because
Petitioner only discharged one shot at the police car. On
direct appeal, Petitioner claimed that the trial court erred
in entering judgment on the verdict because there was
insufficient evidence to support a conviction for felony
assault and armed criminal action with respect to Officer
Jackson, who was the passenger in the pursuing police
vehicle. He did not challenge the sufficiency of the evidence
with respect to the driver of the police vehicle, Officer
Percich. Petitioner argued that the evidence failed to show
he had specific intent to kill or cause serious injury to
Officer Jackson and instead demonstrated that he was not
aiming at Officer Jackson. The Missouri Court of Appeals
thoroughly addressed the claim and found:
A person commits the class A felony of assault of a law
enforcement officer in the first degree when such person
"attempts to kill or knowingly causes or attempts to
cause serious physical injury to a law enforcement
officer." Section 565.081, RSMo (Cum. Supp. 2012).
Accordingly, a person also commits the felony of armed
criminal action when such person commits any felony under the
laws of this state by, with, or through the use, ...