United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Petitioner Kevin
Thompson’s (“Petitioner”) pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Respondent filed a response to the Petition
(Doc. 6), to which Petitioner filed a traverse (Doc. 8). The
parties have consented to the jurisdiction of the United
States Magistrate Judge pursuant to 28 U.S.C. §
636(c)(1). (Doc. 16). For the following reasons, the petition
for a writ of habeas corpus will be denied.
Factual and Procedural Background
March 9, 2011, Petitioner was indicted on three counts of
statutory sodomy in the second degree. See
Resp’t Ex. A, at 14-15. On April 11, 2012, a
superseding indictment charged defendant with eleven counts
of statutory sodomy in the second degree. See Id .
at 22-26. On August 22, 2012, a jury found Petitioner guilty
of eleven counts of statutory sodomy in the second degree.
See Resp’t Ex. A., at 79-89. On November 8,
2012, judgment was entered on all eleven counts, and
Petitioner was sentenced. See Id . at 90-97.
Missouri Court of Appeals summarized the background and facts
On March 9, 2011, [Petitioner] was indicted on eleven counts
of second-degree statutory sodomy in violation of Section
566.064. The charges stemmed from [Petitioner]’s
mouth-to-genital contact with the victim E.J. on seven
separate occasions, and hand-to-genital contact with the
victim E.J. on four separate occasions, all when E.J. was
less than seventeen years of age, between May 1, 2009, and
June 1, 2010. Detective Timothy Herr (“Detective
Herr”) of the Hazelwood Police Department investigated
the sexual allegations involving [Petitioner] and E.J. and
interviewed both parties. The Children’s Advocacy
Center (“CAC”) also interviewed E.J. This
interview was recorded and portions were played at trial.
Detective Herr was present at the CAC interview and took
(Resp’t Ex. J at 2).
April 2013, the Missouri Court of Appeals, on direct appeal,
affirmed Petitioner’s conviction. Resp’t Ex. E at
1. Petitioner subsequently filed a pro se Rule 29.15
Motion for post-conviction relief, asserting ineffective
assistance of his trial counsel, alleging that she: (i)
failed to adequately cross examine Detective Herr about his
police report and recollections concerning E.J.’s CAC
statement; (ii) failed to object to the prosecutor’s
use of leading questions throughout the direct examination of
E.J.; and (iii) failed to investigate and depose E.J. prior
to trial. Resp’t Ex. G at 6. In his amended motion for
post-conviction relief, filed through counsel, Petitioner
raised identical claims of ineffective assistance of counsel.
Id. at 30. The motion court denied the claims on the
merits without an evidentiary hearing. Id. at 60. On
appeal, Petitioner raised the same three claims. Resp’t
Ex. H at 14-16. The Missouri Court of Appeals affirmed the
motion court’s denial of his motion for post-conviction
relief. Resp’t Ex. J at 3.
27, 2016, Petitioner filed the instant petition for a writ of
habeas corpus, alleging six grounds for relief: (1) that his
trial counsel was ineffective for failing to investigate and
depose the victim before trial; (2) that his trial counsel
was ineffective for failing to object to the
prosecutor’s use of leading questions during the direct
examination of the victim; (3) that his trial counsel was
ineffective for failing to cross-examine Detective Herr with
his police report; (4) that Petitioner’s convictions
violated the double jeopardy clause; (5) that the trial court
erred by failing to declare a mistrial during the
state’s closing argument based on improper
personalization; and (6) that the trial court erred by
failing to declare a mistrial during the state’s
closing argument after the prosecutor characterized
Petitioner as a pedophile without any evidentiary basis.
Standard for Reviewing Habeas Corpus Claims on the
federal judge may issue a writ of habeas corpus freeing a
state prisoner, if the prisoner is “in custody in
violation of the Constitution or laws or treaties of the
United States, ” 28 U.S.C. § 2254(a). However, the
judge may not issue the writ if an adequate and independent
state-law ground justified the prisoner’s detention,
regardless of the federal claim. See Wainwright v.
Sykes, 433 U.S. 72, 81-88 (1977).
habeas review exists only “as ‘a guard against
extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through
appeal.’” Woods v. Donald, 135 S.Ct.
1372, 1376 (2015) (per curiam) (quoting Harrington v.
Richter, 562 U.S. 86, 102-03 (2011)). Accordingly,
“[i]n the habeas setting, a federal court is bound by
the AEDPA [the Antiterrorism and Effective Death Penalty Act]
to exercise only limited and deferential review of underlying
state court decisions.” Lomholt v. Iowa, 327
F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254).
Under the AEDPA, a federal court may not grant relief to a
state prisoner with respect to any claim that was adjudicated
on the merits in the state court proceedings unless the state
court’s adjudication of the claim “(1) 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the States court proceeding.” 28 U.S.C. §
court decision is “contrary to” clearly
established Supreme Court precedent “if the state court
arrives at a conclusion opposite to that reached by [the
United States Supreme] Court on a question of law or if the
state court decides a case differently than [the United
States Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor,
529, 412-13 (2000). “[A] state court decision involves
an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings only if it
is shown that the state court’s presumptively correct
factual findings do not enjoy support in the record.”
Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir.
2004) (citations and internal quotation marks omitted);
see also Rice v. Collins, 546 U.S. 333, 338-39
(2006) (noting that state court factual findings are presumed
correct unless the habeas petitioner rebuts them through
clear and convincing evidence) (citing 28 U.S.C. §
preserve a claim for federal habeas review, a state prisoner
must present that claim to the state court and allow that
court the opportunity to address the claim. Moore-El v.
Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state
procedural rules, any claims not properly raised before the
state court are procedurally defaulted.” Id.
The federal habeas court will consider a procedurally
defaulted 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 justice.” Id. (citing Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v.
Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc)). The
procedural default doctrine and its attendant cause and
prejudice standard are grounded in concerns of comity and
federalism, and apply alike whether the default in question
occurred at trial, on appeal, or on state collateral attack.
See Coleman, 501 U.S. at 730; Murray v.
Carrier, 477 U.S. 478, 490-92 (1986).
demonstrate cause, a petitioner must show that “some
objective factor external to the defense impeded [the
petitioner’s] efforts to comply with the State’s
procedural rule.” Id. at 488. To establish
prejudice, a petitioner must demonstrate that the claimed
errors “worked to his actual and substantial
disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 170 (1982). Lastly, in order to
assert the fundamental miscarriage of justice exception, a
petitioner must “ ‘present new evidence that
affirmatively demonstrates that he is ...