United States District Court, E.D. Missouri, Eastern Division
NATHAN J. ALLEN, Petitioner,
MICHAEL BOWERSOX, Respondent.
MEMORANDUM AND ORDER
VROSS UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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).
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.
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.
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
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'
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).
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).
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.
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.
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
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 ...