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Allen v. Bowersox

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

September 16, 2019

NATHAN J. ALLEN, Petitioner,
v.
MICHAEL BOWERSOX, Respondent.

          MEMORANDUM AND ORDER

          JOHN VROSS UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner Nathan Allen's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1). The State responded. (Doc. No. 6). For the following reasons, Petitioner's Section 2254 petition is DENIED and this action is DISMISSED.

         I. Background

         On October 7, 2010, a jury found Petitioner guilty of first-degree robbery, armed criminal action, attempted first-degree robbery, first-degree assault, felonious restraint, and resisting arrest. At trial, the State presented the following evidence.

         On July 28, 2009, at approximately 11:00 p.m., Petitioner arrived by bicycle at a gas station, approached a group of customers, and robbed them at gunpoint. Several weeks later, one of the customers identified Petitioner in a photo spread and subsequent physical lineup. She stated she was "100% certain" Petitioner was the perpetrator. A second customer also identified Petitioner in a photo spread and a physical lineup as the man who robbed her, and she was "very sure" of her identification.

         On August 11, 2009, Petitioner robbed a man at gunpoint while the man was waiting at a bus stop to go to work. A few days later, the man identified Petitioner in a lineup as the individual who robbed him, expressing absolute certainty.

         On August 13, 2009, Petitioner approached a tire service shop, where the owner and his girlfriend were working. Petitioner grabbed the girlfriend, demanded money from the owner, shot the owner, and proceeded to rob him. After Petitioner left the shop, the girlfriend called the police. Petitioner was subsequently apprehended by police and identified as the shooter by the shop owner and his girlfriend.

         Both the gas station and Family Dollar store next to the tire shop had video surveillance tapes of the incidents in their respective locales. Before trial, Petitioner filed a motion for production of that video surveillance and other exculpatory materials. The trial court heard Petitioner's motion and made the following docket entry: "State believes [that it] provided all material that is in its control or that it could obtain by due [diligence]-Copies of BP & Family Dollar Store tapes apparently either were not correctly made or were lost-or were not saved and are no longer available." (Doc. No. 6-4 at 8).

         At trial, the State asked various police officers about the contents of the surveillance videos. Petitioner's attorney objected on the basis of the best evidence rule, but the trial court overruled the objections after the State presented evidence that the tapes were not available.

         Petitioner testified at trial that on July 28, 2009, he was at his stepfather's home around 11:00 p.m., and thus could not have committed the robbery on that date. Petitioner's wife testified that on August 11, 2009, Petitioner had walked her daughter to the bus stop around 5:15 a.m. Petitioner's stepdaughter testified that Petitioner had walked her to the bus stop that morning because she had to go to work. However, on cross-examination, she was confronted with work records showing that she did not work on that day. Petitioner's stepdaughter then explained that she had gone into work, was told that she was not scheduled to work that day and returned home.

         During closing argument, Petitioner's trial counsel addressed the issue of the surveillance videos, stating:

One video mysteriously has disappeared from the evidence locker. And as the name suggests, the evidence locker, or evidence room, is kept locked. But somehow that video has disappeared.
The second video somehow has nothing on it. The files are empty. There's plenty - you know, if you're a conspiracy theorist, there is plenty of ammunition here for you. Somehow, both videos are gone. Can't bring them in.
Now the police assure you that they looked at the videos, and, yeah, it's [Petitioner] in both of them, of course. Well, I submit to you, ladies and gentlemen, if that was true they would have them here.

(Doc. No. 6-10 at 639). The jury returned a guilty verdict, and the trial judge sentenced Petitioner as a prior felony offender to an effective term of forty-five years' imprisonment.

         Petitioner appealed the trial court's decision to permit the officers to testify regarding the contents of the surveillance video, in violation of the best evidence rule. On December 13, 2011, the state appellate court affirmed the trial court's decision. State v. Allen, No. ED95900 (Mo. App. Ct.Dec. 13, 2011).

         On March 14, 2012, Petitioner filed a pro se motion to vacate, set aside, or correct the judgment or sentence in state court, asserting the following claims: (1) the state trial court erred when it denied his motion to dismiss improperly joined counts; (2) Petitioner's rights were violated when the prosecutor failed to turn over the surveillance videos to the defense; and (3) Petitioner "was subjected to double jeopardy." (Doc. No. 6-8).

         Petitioner was appointed counsel, who amended Petitioner's motion to assert the following claims: (1) his trial attorney was ineffective for failing to call two witnesses (Sarah Allen and Donna Johnson); and (2) his trial attorney was ineffective for failing to argue that the surveillance videos, which were not produced by the State, must not have shown Petitioner as the perpetrator. Specifically, Petitioner claims that Ms. Allen (Petitioner's stepmother) would have provided Petitioner with an alibi for the July 29, 2009 robbery, and Ms. Johnson (the manager of the Family Dollar store next door to where the robbery occurred at the tire shop) would have testified that Petitioner was not the man she saw robbing the tire shop.

         On November 2, 2012, the motion court held an evidentiary hearing on Petitioner's amended motion. Petitioner, Petitioner's trial counsel, Donna Johnson, and Sarah Allen testified. Petitioner stated that in July 2009, he was living at his father's house exclusively because he and his wife were engaged in a dispute. He testified that on July 28, 2009, he had borrowed bis stepmother's car and returned it some time after 9:00 p.m., causing his stepmother to be late to work. Petitioner testified that he told his trial attorney that his stepmother would be able to provide him with an alibi for the July 28 robbery.

         Ms. Allen testified that she generally let Petitioner use her car when she was not using it. She stated that on July 28, 2009, Petitioner returned her car around 10:00 or 10:15 p.m., and she remembers that date because she went into work late. On cross-examination, Ms. Allen could not recall on what day of the week July 28 fell, and she could not provide any other reasons for remembering that Petitioner was late on July 28 specifically.

         Trial counsel testified that the State was unable to use the surveillance video at trial because the video would not play on the computer, and he had no recollection of whether he argued an adverse inference from the failure of the police to show the video. Trial counsel testified that his notes include no reference ...


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