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Thompson v. Villmer

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

September 23, 2019

KEVIN THOMPSON, Petitioner,
v.
TOM VILLMER, Respondent.

          MEMORANDUM AND ORDER

          SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Factual and Procedural Background

         On 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.

         The Missouri Court of Appeals summarized the background and facts as follows:

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 notes.

(Resp’t Ex. J at 2).

         In 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.

         On May 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. (Doc. 1).

         II. Legal Standards

         A. Standard for Reviewing Habeas Corpus Claims on the Merits

         A 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).

         Federal 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. § 2254(d).

         A state 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. § 2254(e)(1)).

         B. Procedural Default

         To 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).

         To 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 ...


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