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Cusumano v. Precythe

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

September 11, 2019

RICK CUSUMANO, Petitioner,
v.
ANNE L. PRECYTHE, [1]Respondent.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Petitioner Rick Cusumano's ("Petitioner") "Motion to Accept Supplement to 2254 Writ of Habeas Corpus" ("motion to amend") (ECF No. 19). Petitioner moves to supplement his pro se habeas corpus petition, filed under 28 U.S.C. § 2254, seeking relief from his January 4, 2011, conviction. In response to Petitioner's motion, the State of Missouri ("State") argues that either the claims are already raised in his original habeas petition, time-barred, or without merit. The parties have consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).

         I. Background

         Petitioner is presently incarcerated at the Potosi Correctional Center pursuant to the February 10, 2011, sentence and judgment of the Circuit Court of St. Louis County. In February 2010, Petitioner was charged with three felonies, two counts for aggravated forcible rape (Counts I and II) and one count of aggravated forcible sodomy (Count III) for the August 5, 1998, sexual assault of a woman ("Victim"). (Legal File, ECF No. 14-3, at 13-15) Count I charged that Petitioner, acting with another, committed forcible rape and displayed a deadly weapon in a threatening manner. Count II charged that Petitioner with forcible rape by subjecting the Victim to sexual intercourse with more than one person. Count III charged Petitioner with forcible sodomy. (Id. at 15-17) On September 22, 2010, a jury found Petitioner guilty of forcible rape (Count I) and forcible sodomy (Count III)[2], both of which were lesser included offenses to the class A felonies charged in the counts, but the jury could not reach a verdict on the forcible rape by subjecting the Victim to sexual intercourse with more than one person (Count II).

         The trial court reset Count II for trial on January 3, 2011. (ECF Nos. 14-1 and 14-2) At the retrial on Count II, a jury convicted Petitioner of forcible rape, and on January 4, 2011, the trial court sentenced him to life in prison, to run consecutively to the two concurrent life sentences. Petitioner received on Counts I and III at his first trial. Id. The Missouri Court of Appeals affirmed Petitioner's conviction on direct appeal on June 14, 2013. State v. Cusumano, 399 S.W.3d 909 (Mo.Ct.App. 2013) (ECF No. 14-6). Petitioner filed a motion for post-conviction relief under Rule 29.15, alleging ineffective assistance of counsel claims, and the motion court denied that motion. In his appeal from the denial of post-conviction relief, Petitioner asserted that trail counsel was ineffective by (1) failing to investigate Detective Gary Fourtney as a potential witness and by failing to call him as a witness at trial; (2) by failing to object to the Victim's ex-husband's testimony about her behavioral changes that resulted from the sexual assault; and (3) by advising Petitioner not to testify at his second trial. (ECF No.14-10) Petitioner also argued that appellate counsel was ineffective by failing to cite two Supreme Court cases in support of the argument that his conviction of forcible rape (Count II) should be set aside on double jeopardy grounds. On August 2, 2016, the Missouri Court of Appeals affirmed the judgment of the motion court denying post-conviction relief. (ECF No. 14-12)

         Petitioner timely filed this petition for habeas relief pursuant to 28 U.S.C. § 2254 on January 25, 2017. (ECF No. 1) In the instant habeas petition, Petitioner raised four grounds for relief: (1) ineffective assistance of trial counsel for failing to investigate and call Detective Fourtney; (2) ineffective assistance of trial counsel for failing to object to the victim's former husband's testimony; (3) ineffective assistance of trial counsel for advising Petitioner not to testify; and (4) ineffective assistance of appellate counsel for failing to cite two Supreme Court decisions in support of his double jeopardy claim. (ECF No. 1) Petitioner did not challenge his other convictions, Counts I and III, or the state court proceedings involving those counts, including the September 21, 2019 not guilty verdicts.

         On January 2, 2019, Petitioner filed his motion to amend the petition. Petitioner moves to supplement his pro se habeas corpus petition with five grounds for relief: (1) ineffective assistance of trial counsel for failing to investigate and call Detective Fourtney; (2) his conviction for Count II should be vacated under the doctrine of collateral estoppel because he was subsequently found not guilty of Counts I and III; (3) his conviction for Count II should be vacated under Mo. Rev. Stat. § 532.430; (4) structural error in his retrial of Count II because Detective Fourtney did not testify, his counsel advised Petitioner not to testify, and trial counsel admitted Petitioner's guilt during closing argument; and (5) ineffective assistance of trial counsel by admitting Petitioner's guilt during closing argument.

         II. Legal Standards

         Federal habeas proceedings initiated by state prisoners are governed by the Rules Governing Section 2254 Cases in the United States District Courts. Habeas petitions may be amended or supplemented as provided in the rules of procedure applicable to civil actions. 28 U.S.C. § 2242; see also Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts (federal rules of civil procedure, to the extent that they are not inconsistent with any statutory provisions or rules governing habeas cases, may be applied in habeas proceedings). The decision whether to allow the amendment of a pleading is within this Court's discretion, keeping in mind the directive of Rule 15(a) that a court "should freely give leave [to amend] when justice so requires." Moore-El v. Luebbers, 446 F.3d 890, 891 (8th Cir. 2006). "The court may disallow amendment [of a pleading] for various reasons, … including ‘undue delay, bad faith or dilatory motive on the part of the [petitioner], repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment.' Foman v. Davis, 371 U.S. 178, 182 … (1962)." Id. at 901-02 (third alteration in the original). While "[d]elay alone is insufficient to justification for a denial of a motion to amend, … leave may be denied if [the amendment] would be futile. Foman, 371 U.S. at 182…." Moore-El, 446 F.3d at 902 (one citation omitted).

         A habeas petitioner seeking to add claims must still comply with the applicable one-year statute of limitations imposed by 28 U.S.C. § 2244(d)(1). Claims that are filled after the limitations period runs may still be joined if they relate back to the claims in Petitioner's original petition. Fed.R.Civ.P. 15(c). Claims can only relate back, however, if they arise "out of the conduct, transaction, or occurrence, set out - or attempted to set out - in the original pleading." Id. The Supreme Court has held that "relation back depends on the existence of a common core of operative facts uniting the original and newly asserted claims." Mayle v. Felix, 545 U.S. 644, 659 (2005). The events pertaining to the new claims must not be "separate in both time and type" from the events pertaining to the original claims, but rather must "arise from the same core facts." Id. at 657.

         III. Discussion

         Of the grounds set forth in the motion to amend, Petitioner claims regarding Detective Fourtney (Points 1 and IV(1)) and trial counsel's advice not to testify (Point IV(2)) are not new so the statute of limitations does not bar these grounds. The alleged facts and grounds for relief in the motion to amend as to Detective Fourtney and trial counsel's advice not to testify are substantially similar to the original petition. Therefore, the Court will grant the motion for leave to amend and allow Petitioner to supplement these grounds.

         The new grounds Petitioner seeks to include in his habeas petition are his collateral estoppel claim (Point II), his claim under Mo. Rev. Stat. § 532.430 (Point III), and his claim regarding counsel's admission of his guilt during closing argument (Points IV(3) and V).

         A. Collateral ...


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