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Dorsey v. Steele

United States District Court, W.D. Missouri, Western Division

September 27, 2019

BRIAN J. DORSEY, Petitioner,
v.
TROY STEELE, Respondent.

          ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          ROSEANN A. KETCHMARK, JUDGE

         Before the Court is Petitioner Brian J. Dorsey’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 25.) Also before the Court is Petitioner’s motion to expand the record to include additional affidavits and for an evidentiary hearing. (Doc. 100.) For the reasons below, Petitioner’s motion for leave to expand the record and for an evidentiary hearing is DENIED; the Petition is DENIED; a certificate of appealability is DENIED; and the case is DISMISSED.

         Background

          The Supreme Court of Missouri stated the facts as follows on postconviction appeal:

On December 23, 2006, Brian J. Dorsey’s family was concerned that he was in trouble because of money he owed to drug dealers. He had called several family members asking to borrow money because there were two drug dealers in his apartment and he needed help. Mr. Dorsey’s cousin, Sarah Bonnie, Sarah’s husband Ben, [1] and two others went to Mr. Dorsey’s apartment. The two drug dealers left Mr. Dorsey’s apartment when his family arrived. The Bonnies then took Mr. Dorsey to their home, where they spent the evening drinking and playing pool in the Bonnies’ “shop” with other family members and Darin Carel, a family friend. A shotgun had to be moved off the pool table before they could play pool. During the evening, Mr. Dorsey drank seven to ten beers.
After everyone except Mr. Dorsey and Mr. Carel had left, the Bonnies went to bed. After Mr. Carel left, Mr. Dorsey found a bottle of vodka and drank some of it. He then retrieved the single-shot, 20-guage shotgun from the Bonnies’ shop and fatally shot the Bonnies while they were in their bed. He then had sexual intercourse with Sarah’s body. Afterward, he poured bleach on Sarah’s torso and genital area and stole several items from the house, including Sarah’s vehicle. Mr. Dorsey used some of the property to pay a debt for money he borrowed for drugs from Patricia Cannella and tried selling other stolen items, including the shotgun, to various people throughout the night. He was driving a white car, which he said was his, and the property he was trying to sell was in the car. He was heavily intoxicated and had the bottle of vodka with him.
The next day, Sarah’s parents became worried when the Bonnies did not show up for a family gathering. They went over to the Bonnies’ house and found their four-year-old daughter, who told them that her parents had been locked in the bedroom all day. When Sarah’s parents were able to get into the locked bedroom, they found the Bonnies dead.
A sexual assault kit was used to collect evidence from Sarah’s body, and the vaginal swabs taken were sent to the Missouri State Highway Patrol crime laboratory for testing. A presumptive test indicated a possible, but unconfirmed, presence of sperm cells. A full autosomal DNA profile was then created from the swab.[2] The profile was consistent with Sarah’s DNA, indicating she was the sole source of the DNA, and eliminated Mr. Dorsey as the source of the autosomal DNA. An extraction was then performed to target DNA on any Y chromosomes in the sample because only males have Y chromosomes. The Y-chromosome profile eliminated Ben and Mr. Carel, who had been at the Bonnies’ house on the night of the murders, as the source of the DNA. It did not eliminate Mr. Dorsey as the source, however.
On December 26, Mr. Dorsey surrendered to police and admitted that he was “the right guy concerning the deaths of the Bonnies.” Sarah’s social security card was found in Mr. Dorsey’s back pocket. Later that day, police found Sarah’s car with some of the Bonnies’ property still inside and the shotgun in the trunk. Ms. Cannella identified many of the items in the car as those Mr. Dorsey had been trying to sell on the morning of December 24. Mr. Dorsey was charged with two counts of first-degree murder. Chris Slusher and Scott McBride were hired by the office of the Missouri State Public Defender to represent Mr. Dorsey on these charges for a flat fee. Mr. Slusher was primarily responsible for investigating and preparing mitigation evidence, while Mr. McBride was primarily responsible for reviewing the DNA evidence.
In March 2008, Mr. Dorsey pleaded guilty to both counts. A jury trial was then held for the penalty phase. The jury recommended a sentence of death for each murder, finding both murders were committed while Mr. Dorsey engaged in the commission of another unlawful homicide, committed for the purpose of receiving money or any other thing of monetary value, and involved depravity of mind and manner. The jury also found the murder of Sarah was committed while Mr. Dorsey was engaged in the crime of rape. The trial court sentenced Mr. Dorsey accordingly.

Dorsey v. State, 448 S.W.3d 276, 281-82 (Mo. banc 2014). The Supreme Court of Missouri affirmed on direct appeal, State v. Dorsey, 318 S.W.3d 648, 651-52 (Mo. banc 2010), and again on appeal from the denial of postconviction relief, Dorsey v. State, 448 S.W.3d at 301.

         Petitioner then filed this § 2254 Petition, and the State responded. (Doc. 25; Doc. 29.) After several briefing extensions and a stay pending further state proceedings on Claim 26 under Rhines v. Weber, 544 U.S. 269 (2005), Petitioner filed a traverse (Doc. 86), and counsel presented oral arguments on the issue of procedural default (Doc. 95). In a separate order, the Court denied Claim 5 as procedurally defaulted. (Doc. 98.) The remaining 27 claims are now ready for decision.

         Discussion

         For the reasons below, Petitioner’s remaining claims either are procedurally defaulted or fail on the merits.

         I. Failure to Subject the State’s Case to Meaningful Adversarial Testing (Claim 1)

         In Claim 1, Petitioner argues that his trial counsel failed to meaningfully contest the State’s case under United States v. Cronic, 466 U.S. 648 (1984) because they did not investigate guilt. Petitioner concedes this claim is procedurally defaulted because he did not raise it in state court. (Doc. 25, Pet. at 173.) To excuse the default, he must show either “cause and actual prejudice” or “actual innocence.” Murphy v. King, 652 F.3d 845, 849-50 (8th Cir. 2011). Petitioner argues there is cause to excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012), because his postconviction counsel was ineffective for not raising this claim. (Doc. 25, Pet. at 173.) The Court disagrees.

         To excuse a procedural default under Martinez, the underlying claim of ineffective assistance of trial counsel must be “substantial, ” and postconviction counsel must have been constitutionally ineffective with respect to the claim. Martinez, 556 U.S. at 14. A claim is “substantial” if it has “some merit” and “insubstantial” if “it does not have any merit or . . . is wholly without factual support.” Id. at 14-16; Kemp v. Kelley, 924 F.3d 489, 499 (8th Cir. 2019).

         Here, Petitioner’s Cronic claim does not rise to the level of a substantial claim under Martinez. Ordinarily, an ineffectiveness claim requires showing deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Cronic excuses the need to show Strickland prejudice under certain circumstances, including when counsel “failed to function in any meaningful sense as the Government’s adversary.” Cronic, 466 U.S. at 666. To meet this standard, counsel’s failure must have been “complete” throughout an entire proceeding, not only at various points. Bell v. Cone, 535 U.S. 685, 696-98 (2002).

         Petitioner’s Cronic claim is refuted by the record. Mr. Slusher, one of Petitioner’s two trial lawyers, testified at the postconviction hearing that the public defender’s office had already done substantial work on the case before he and Mr. McBride were retained to defend the case. (Doc. 29-11, PCR Tr. at 584-87.) The discovery file in their possession included police reports containing overwhelming evidence of guilt. (Petition Appendix (“Pet. App.”) at 1-627.) Specifically, several witnesses placed Petitioner at the Bonnies’ house on the night of the murders. (Id. at 7, 11-14, 21.) Darin Carel told police that only Petitioner was there with the Bonnies when he left. (Id. at 49-50.) The Bonnies’ four-year-old daughter, J, [3] told police that Petitioner came into her room after she fell asleep and, when she asked about her parents, told her she couldn’t see them. (Id. at 55-56, 353-54.)

         The next morning at 4:00 a.m., according to several witnesses’ statements to police, Petitioner showed up at Patricia Cannella’s home in what appeared to be Sarah Bonnie’s white car. He was apparently attempting to sell the Bonnies’ property to pay off his drug debt, including two guns, a ring inscribed with the names Sarah and Brian (Brian was also the name of Sarah Bonnie’s ex-boyfriend), Ben Bonnie’s cell phone, and Sarah’s car. (Id. at 8, 45, 315-19, 340-41, 361-62, 397-401, 431, 618-19, 626-27.) Police later discovered the car abandoned with several things in it that were usually kept in the Bonnies’ house-including the murder weapon. (Id. at 88-91, 266-69.) Lab reports showed Petitioner’s DNA was consistent with DNA found on the steering wheel of the car, cigarette butts near where the car was found, and vaginal swabs from Sarah Bonnie. (Id. at 513-15.)

         On December 26, 2018, Petitioner voluntarily turned himself in to the police. (Id. at 117, 120-21.) He had Sarah Bonnie’s Social Security card in his back pocket. (Id. at 130.) In response to questioning, he told police that he was the “right man concerning the death of the Bonnies.” (Id. at 119-21.)

         According to Mr. Slusher, “it didn’t take [him] long to review the case and feel like the guilt phase of the case was going to be difficult.” (Doc. 29-11, PCR Tr. at 587.) Nonetheless, he deposed four police officers and moved to suppress Petitioner’s incriminating statements. (Doc. 25-2 at 2; Pet. App. at 5051-5154; Doc. 29-1, Motion to Suppress Hearing Tr. at 1-74; 29-3 at 64-90.) After the trial court denied the motion to suppress, trial counsel assessed “the evidence of guilt [as] overwhelming” and concluded that “the best trial strategy to avoid the death penalty was . . . to accept responsibility, which included pleading guilty.” Dorsey v. State, 448 S.W.3d at 291; (Doc. 29-11, PCR Tr. at 588-89.) According to Mr. Slusher, the specific reason for advising Petitioner to plead guilty was to gain “credit for acceptance of responsibility.” (Doc. 29-11, PCR Tr. at 589.) This was coupled with a strategy of advising Petitioner to take the witness stand to establish a human connection, show remorse, and plead for mercy. (Doc. 29-11, PCR Tr. at 588-89, 595, 697, 731-32.)

         Trial counsel did not violate Cronic by not investigating guilt further. They took affirmative steps on Petitioner’s behalf at the guilt stage despite the overwhelming evidence of guilt. When those efforts failed, they reasonably decided it was best to focus on obtaining a life sentence. This was not a total failure to function as the State’s adversary during the guilt phase. See Florida v. Nixon, 543 U.S. 175, 189-92 (2004) (permissible under Cronic to concede guilt during the guilt phase at trial and focus on the penalty phase); Holder v. United States, 721 F.3d 979, 987-89 (8th Cir. 2013) (same). Cf. Mulero v. Thompson, 751 F.Supp.2d 1009, 1025-26 (N.D. Ill. 2010) (permissible under the less-demanding Strickland standard to advise a capital defendant to plead guilty open to the death penalty and focus on the penalty phase); Davis v. Polk, No. 1:05CV29W, 2007 WL 2898711, at *23 (W.D. N.C. Sept. 28, 2007) (same).

         Trial counsel also did not violate Cronic during the penalty phase. At trial, they presented an opening statement, cross-examined several of the State’s witnesses, called several witnesses in mitigation, and presented a closing argument-all of which focused on the acceptance-of-responsibility strategy. (See Doc. 29-1 and Doc. 29-2, Trial Tr.) Petitioner now claims counsel should have done certain things differently during trial. (Doc. 25 at 166-73.) These are not arguments that “counsel failed to oppose the prosecution throughout the . . . proceeding as a whole, but that [they] failed to do so at specific points.” Bell, 535 U.S. at 697.

         Therefore, Claim 1 is insubstantial under Martinez, and postconviction counsel could not have been ineffective for not pursuing it. Claim 1 will be denied as procedurally defaulted.[4]

         II. Conflict of Interest from the Flat-Fee Agreement (Claim 2)

         In Claim 2, Petitioner argues that trial counsel’s flat fee of $12, 000 per lawyer ($24, 000 total) created a conflict of interest under Cuyler v. Sullivan, 446 U.S. 335 (1980) that encouraged them to do as little as possible and resulted in an inadequate investigation. This claim was properly raised in state court and is preserved for review on the merits under § 2254. (Doc. 29 at 13, 65.)

         Under § 2254, the Court analyzes whether the last state-court decision that provides a relevant rationale (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         A. Unreasonable Application of Clearly Established Law (§ 2254(d)(1))

         As a threshold matter, the state court did not violate “clearly established” Supreme Court precedent. “Cuyler . . . has not been extended by the Supreme Court beyond cases in which an attorney has represented more than one defendant, and [the Eighth Circuit] has never determined whether it should be applied to other cases.” Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006) (citing Mickens v. Taylor, 535 U.S. 162, 175 (2002) (stating that Cuyler “does not clearly establish” that it applies outside the context of multiple representations)). Because the Supreme Court has called into question the viability of financial-conflict-of-interest claims and has not “squarely addresse[d]” or given a “clear answer” to whether a flat fee agreement can create an actual conflict under Cuyler, the state court did not violate clearly established law for purposes of § 2254(d)(1). See, e.g., Wright v. Van Patten, 552 U.S. 120, 125 (2008).

         Even if the Court were to look past the “clearly established” law requirement, the Supreme Court of Missouri’s (i.e., the relevant “state court’s”) rejection of this claim was reasonable. Under Cuyler, a petitioner “must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler, 446 U.S. at 350. Here, the state court concluded there was no actual conflict that affected trial counsel’s performance for the following reasons: trial counsel’s investigative decisions were based on a reasonable trial strategy of obtaining credit for acceptance of responsibility during the penalty phase; trial counsel could have pursued additional funds from the public defender’s office for an investigator, an expert, or other resources if they saw fit; trial counsel’s in-house investigator was salaried and was not paid from the flat fee; and there was no evidence that trial counsel’s instructions to the investigator were based on finances. Dorsey v. State, 448 S.W.3d at 300.

         Petitioner does not cite any “contrary” Supreme Court case, so the analysis is confined to whether the state court’s application of federal law was reasonable. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (“Contrary to” means contrary to a Supreme Court holding on a question of law or on a materially indistinguishable set of facts.). Petitioner cites State v. Cheatham, 292 P.3d 318 (Kan. 2013), and State v. Young, 172 P.3d 138 (N.M. 2007). In Cheatham and Young, other state supreme courts held that flat fee arrangements created actual conflicts under the circumstances in those cases. The state court in this case was not bound by decisions of other states, and given the availability of additional investigative funds, it was reasonable to conclude that no actual conflict affected trial counsel’s performance. See United States v. Stitt, 552 F.3d 345, 350-51 (4th Cir. 2008) (no conflict from a flat fee when additional funds were available for expenses); Kerr v. Parsons, 378 P.3d 1, 8 (N.M. 2016) (stating that Young is “cinched to its own facts” and refusing to categorically bar the use of flat fee contracts) (quotation marks and citation omitted); United States v. Taylor, 139 F.3d 924, 932 (D.C. Cir. 1998) (“[C]ourts generally presume that counsel will subordinate his or her pecuniary interests and honor his or her professional responsibility to a client.”) (quotation marks and citations omitted). Accordingly, the state court’s application of Cuyler was reasonable.

         B. Unreasonable Factual Determination (§ 2254(d)(2))

         Petitioner argues that the state court unreasonably found there was no evidence of a financial motive during the investigation. He points to testimony from Mr. Slusher that he “couldn’t afford to pay [the in-house investigator] to be working on the case for this fee and doing a lot of work on this case.” (Doc. 29-11, PCR Tr. at 582.) However, the transcript provides additional context:

Q. What was [the in-house investigator’s] role in the case?
A. Well, I think originally probably my goal was for him not to have a role in the case.
Q. And can you explain that?
A. Because of, you know, I couldn’t afford to pay him to be working on the case for this fee and doing a lot of work on this case. I don’t recall. I think we had discussions maybe with outside investigators at some point on this case. I don’t recall.
I believe there was somebody down in Springfield we had talked to, but I don’t think we ended up hiring him. But I think the use of [the in-house investigator] came later, when I just felt that I needed to get things done, and he was close, and so I had him do things.

(Id.)

         The fact that Mr. Slusher initially did not want his own in-house investigator to work on the case does not mean his investigative decisions were financially driven. He could have obtained funds from the public defender’s office to hire an outside investigator but chose not to do so, and he only enlisted his own staff as the need arose later. Viewing this testimony in context, it was reasonable for the state court to find that there was no evidence of a financial motive behind trial counsel’s investigative decisions.

         Therefore, Claim 2 will be denied on the merits.

         III. Ineffective Assistance for Failing to Advise Petitioner About the Consequences of Pleading Guilty (Claims 3 and 1(A)(6))

         In Claims 3 and 1(A)(6), Petitioner argues that his trial counsel was ineffective because they did not tell him “that, by entering his plea, he would also be waiving the right to hold the State to its burden of proving aggravating circumstances at his penalty trial.” (Doc. 25 at 164-66, 178-82.) At oral argument, the parties disputed whether this claim was procedurally defaulted. (Doc. 95, Oral Arg. Tr. at 78-84.) However, the Petition concedes default (Doc. 25 at 182), and it appears from a review of the relevant parts of the record that this claim was not fairly presented in state court. Interiano v. Dormire, 471 F.3d 854, 856 (8th Cir. 2006) (“[A] federal habeas petitioner’s claims must rely on the same factual and legal bases relied on in state court.”) (quotation marks and citation omitted).

         Petitioner seeks to invoke Martinez to excuse the default, but the underlying ineffective-assistance-of-trial-counsel claim is insubstantial. Trial counsel was not deficient for failing to tell Petitioner that pleading guilty would relieve the State of its burden of proving aggravating circumstances. This advice would have been incorrect. The State still had the burden of proving the aggravating circumstances at trial, as evidenced by the jury instructions that required finding at least one aggravating circumstance beyond a reasonable doubt before assessing a death sentence. (Doc. 29-3 at 181, 184, 188.)

         Petitioner also argues that, because aggravating circumstances are given special importance as “elemental facts” that must be proven to a jury beyond a reasonable doubt under Ring v. Arizona, 536 U.S. 584 (2002), trial counsel had a duty under Padilla v. Kentucky, 559 U.S. 356 (2010) to advise him that pleading guilty under the circumstances of this case would have the effect of conceding the aggravating circumstances (i.e., for killing two people at once, for monetary gain, and during a rape). The Court disagrees.

         This case is unlike the situation in Padilla, where plea counsel misadvised his client about the deportation consequences of pleading guilty. This case does not involve misadvice or a failure to advise Petitioner about the effect of his guilty plea. Here, the jury was not required to assess a death sentence just because it found aggravating circumstances exist. The jury was instructed that it could assess a life sentence if it determined that (1) there were no aggravating circumstances; (2) the mitigating circumstances outweighed the aggravating circumstances; or (3) death was not the appropriate punishment even though the mitigating circumstances did not outweigh the aggravating circumstances. (Doc. 29-3 at 181-86.) The trial strategy of accepting responsibility and pleading for mercy was aimed at steps two and three of the deliberations process-to obtain a life sentence despite the aggravators. Mr. Slusher testified during the state postconviction hearing that he discussed pleading guilty with Petitioner “over some period of time, ” advised him “about the options and the consequences of the options, ” and advised him that the defense needed “to take some chances” in light of the overwhelming guilt evidence. (Doc. 29-11, PCR Tr. at 589, 648-49.) The acceptance-of-responsibility strategy was part of Mr. Slusher’s discussion with Petitioner. (Id. at 654.) Trial counsel was not deficient under Padilla even if he did not explain to Petitioner prior to pleading guilty that the details of carrying out the acceptance-responsibility-strategy would involve conceding aggravating circumstances.

         This claim would also fail for lack of prejudice. To show prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Here, the guilt evidence was overwhelming, and there is not a reasonable probability Petitioner would have abandoned the strategy of accepting responsibility just because counsel told him the effect of pleading guilty would be to concede the aggravators.[5] See Meyer v. Branker, 506 F.3d 358, 369- 70 (4th Cir. 2007) (no prejudice for a similar claim because there was overwhelming guilt evidence and a viable strategy of demonstrating remorse).

         Therefore, Claims 3 and 1(A)(6) are insubstantial under Martinez, and postconviction counsel could not have been ineffective for not pursuing them. Claims 3 and 1(A)(6) will be denied as procedurally defaulted.

         IV. Ineffective Assistance for Not Pursuing a Diminished Capacity Defense (Claims 4 and 1(A)(5))

         In Claims 4 and 1(A)(5), Petitioner argues that his trial counsel was ineffective for failing to understand and investigate the defense of diminished capacity. This claim was properly raised in state court and is preserved for review on the merits under § 2254. (Doc. 29 at 13, 65.)

         “Diminished capacity” is a partial defense that negates the “deliberation” element of first-degree murder. Zink v. State, 278 S.W.3d 170, 178 (Mo. banc 2009). Deliberation is the “mental state that distinguishes first- and second-degree murder” and is “defined as ‘cool reflection for any length of time no matter how brief.’” Id. (quoting Mo. Rev. Stat. §§ 565.002.3, 565.020.1). With this defense, a defendant may present evidence of a mental disease or defect to prove lack of capacity to deliberate. Id.

         In this case, the state court concluded that counsel was not deficient based on the following facts. Dorsey v. State, 448 S.W.3d at 291-92. Prior to the guilty plea, trial counsel hired a neuropsychologist and psychologist to perform testing. The neuropsychologist found no serious mental disease or defect from an “organic defect.” Trial counsel also obtained the case file from the public defender’s office, which contained a large number of mitigation records showing a history of depression and the police reports discussed above that showed overwhelming evidence of guilt.

         Although trial counsel considered pursuing a diminished capacity defense, they decided not to do so because they believed the overwhelming weight of the evidence was against it. Specifically, there was considerable evidence showing that Petitioner acted intentionally and with deliberation, including retrieving the single-shot shotgun from the barn; reloading it to kill Ben Bonnie; locking the bedroom door to keep the Bonnies’ daughter out of the room; stealing their property so he could sell it; pouring bleach on Sarah Bonnie’s body to cover up the evidence; turning himself in to the police; and identifying himself as the one the police needed to talk to about the murders. Trial counsel was also aware that Petitioner was heavily intoxicated on the night of the murders and that voluntary intoxication alone could not be used to support a diminished capacity defense. Rather than pursuing a defense he believed would not work, Mr. Slusher advised Petitioner to plead guilty following a “fairly long process” to obtain credit for accepting responsibility. In light of these facts, the state court concluded that the “trial strategy to not pursue a diminished capacity defense-and, therefore, to not investigate further-was not unreasonable.” Id. at 292.

         The state court’s application of Strickland’s deficiency prong was reasonable. Petitioner argues that trial counsel could have supported a diminished capacity defense if their psychologist had been given an opportunity to thoroughly examine Petitioner prior to the guilty plea. However, Mr. Slusher testified during the postconviction hearing that, as a practical matter, he did not think a diminished capacity defense would work. (Doc. 29-11, PCR Tr. at 674.) Based on the facts recited by the state court, it was reasonable for the state court to find no deficiency in this decision. See Strickland, 466 U.S. at 691 (stating that counsel has a duty to conduct reasonable investigations “or to make a reasonable decision that makes particular investigations unnecessary”); Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.”).[6]Claims 4 and 1(A)(5) will be denied on the merits.

         V. Brady Violation for Suppressing DNA Evidence (Claim 5)

         The Court already denied Claim 5 in a prior Order because Petitioner has not provided sufficient authority to expand Martinez to defaulted Brady claims. (See Doc. 98.)

         VI. Ineffective Assistance for Failure to Investigate DNA Evidence (Claims 6 and 1(A)(4))

         In Claims 6 and 1(A)(4), Petitioner argues that trial counsel failed to investigate the State’s two DNA tests: an austosomal test and a Y-chromosome test (i.e., for male DNA). The state court explained that an autosomal test “essentially acts as an absolute identification of an individual because it is expected to be found only once in every 15 quadrillion people.” Dorsey v. State, 448 S.W.3d at 282 n.2. This contrasts with a Y-chromosome match, which would occur for 2.3 out of every 1000 Caucasian males because all males who share a paternal ancestor have the same Y-chromosome profile. Id. at 286.

         A. Autosomal Evidence

         Petitioner argues that an investigation of the autosomal DNA test would have led trial counsel to contest the rape on the ground that the State altered the results to exclude Ben Bonnie as a contributor to the vaginal swabs. Petitioner failed to properly present this claim in state court. Dorsey v. State, 448 S.W.3d at 283-84. Petitioner seeks to invoke Martinez to excuse the procedural default, but the underlying ineffectiveness claim is insubstantial under Martinez because Petitioner cannot show prejudice.

         To show prejudice, Petitioner must show a reasonable probability that further investigation would have led him to insist on a guilt-phase trial or that the penalty phase would have resulted in a life sentence. See Strickland, 466 U.S. at 694; Hill, 474 U.S. at 59. In this case, the State’s analyst observed only Sarah Bonnie’s DNA during the routine DNA extraction process, but he also observed sperm cells on the vaginal swabs. (Trial Tr. at 841-42; Pet. App. at 513.) According to the analyst, this happened because “there was so much female DNA that it masked any male DNA that was there, ” which was “commonly seen in [his] laboratory.” (Pet. App. at 4985.) So, the analyst developed a Y-chromosome profile from the DNA that was extracted from the vaginal swabs and tested it against Ben Bonnie, Darin Carel, and Petitioner. (Trial Tr. at 842-45; Pet App. at 513.) Ben Bonnie and Darin Carel were ruled out as contributors, but Petitioner was not. (Id. at 845-47.)

         Petitioner argues that trial counsel failed to uncover evidence that the State’s analyst improperly removed two “allelic peaks” from the autosomal test results, which he claims would have matched Ben Bonnie. The State disputes that it was improper to remove this information from the DNA test. However, regardless of whether the tests were improper, and Ben Bonnie’s DNA was on the vaginal swabs, Petitioner still was not ruled out as a contributor to the Y-chromosome DNA found on the vaginal swabs. Given this, trial counsel would not have had a viable theory to contest the rape even if he had pointed out the alleged errors in the autosomal test. Accordingly, there is not a reasonable probability that investigating further would have led Petitioner to insist on a guilt-phase trial or led the jury to assess a life sentence. Because the autosomal parts of Claims 6 and 1(A)(4) lack merit, they are insubstantial under Martinez, and postconviction counsel could not have been ineffective for not pursuing them.[7]

         B. Y-Chromosome Evidence

         Petitioner makes three arguments that trial counsel was ineffective for failing to discredit the Y-chromosome evidence, all of which lack merit.

         1. Failure to Investigate the Lack of a “Differential Extraction”

         Petitioner first alleges that trial counsel should have investigated and pointed out the State’s failure to perform a “differential extraction, ” which would have isolated the sperm cells for autosomal testing and confirmed who they belonged to. This claim is preserved for review under § 2254. (Doc. 29 at 64; Doc. 95, Oral Arg. Tr. at 46-48; Doc. 29-13, PCR Appellant’s Br. at 43-64.) The state court held there was no prejudice from not investigating this issue because (1) Petitioner would have been prohibited from arguing an adverse inference from the State’s failure to perform a particular test; (2) there was overwhelming evidence connecting him to the murders; and (3) evidence that the State could have performed a differential extraction would have made little difference, given that the jury already knew that the Y-chromosome test was not as “discriminatory” as an autosomal test. Dorsey v. State, 448 S.W.3d at 288.

         This was a reasonable application of Strickland’s prejudice prong. First, under Missouri law, a defendant cannot generally draw an adverse inference from the State’s failure to perform forensic testing. Gray v. Larkins, No. 4:08CV895-DJS, 2010 WL 840813, at *9 (E.D. Mo. Mar. 11, 2010); Guinn v. Kemna, No. 05-0632-CVWGAFP, 2005 WL 3078601, at *3-4 (W.D. Mo. Nov. 16, 2005), aff’d, 489 F.3d 351 (8th Cir. 2007); State v. Schneider, 736 S.W.2d 392, 401-02 (Mo. banc 1987). Second, in addition to the overwhelming evidence connecting Petitioner to the murders, there was evidence of rape other than the DNA results, including evidence that Sarah Bonnie was clothed in only a T-shirt and that bleach had been poured on her midsection and groin. (Trial Tr. at 537, 672-76, 679, 685-87.) Third, it would have made little difference to point out the lack of a differential extraction, given that Petitioner could not be eliminated as a contributor to the Y-chromosome DNA that was on the vaginal swabs. Petitioner suggests that his skin or saliva cells might have innocently transferred to Sarah Bonnie’s vagina from sex toys found in the bedroom. However, Petitioner does not allege that he touched the sex toys or that his DNA was found on them, and he provides no other explanation for how his cells could have innocently transferred to Sarah Bonnie’s vagina. The State still could have argued that the more likely reason Petitioner’s DNA was found on the vaginal swabs was rape, and the Court is not persuaded that the allegations in the Petition show a viable way to contest the rape.

         Accordingly, it was reasonable for the state court to conclude that there was no prejudice from failing to investigate and raise the lack of a differential extraction. This part of Claims 6 and 1(A)(4) will be denied on the merits.

         2. Contamination Within Evidence Kits

         Petitioner next argues that trial counsel failed to investigate the biological evidence kits for Ben and Sarah Bonnie, which he alleges were compromised by blood vials that “exploded” inside the kits. This claim is procedurally defaulted and insubstantial under Martinez for lack of prejudice.

         Lab reports show that the caps came off two blood vials inside Ben and Sarah Bonnies’ evidence kits. (Pet. App. at 5034-35.) However, Petitioner fails to explain how this could have compromised the DNA tests that were performed. Petitioner does not allege that the State kept Petitioner’s DNA sample in a location where the spill could have picked up his DNA and cross-contaminated the vaginal swabs prior to testing. The State’s DNA analyst, Jason Wyckoff, testified during a pretrial deposition that he developed independent reference standards for Ben and Sarah Bonnie from sources other than the spilled vials. (Id. at 4968-77, 5032-33.) According to one of the autopsy analysts who testified at trial, the sexual assault kit utilized for Sarah Bonnie was in its own sealed box (Trial Tr. at 725-26), and the reports on the vaginal swabs and Petitioner’s DNA sample do not show that they were compromised by the spill (Pet. App. at 3972-73, 4010, 4050-51, 4200).

         Accordingly, there is not a reasonable probability that investigation of potential contamination in the evidence kits would have led Petitioner to insist on a guilt-phase trial or led the jury to assess a life sentence. Because these parts of Claims 6 and 1(A)(4) lack merit, they are insubstantial under Martinez, and postconviction counsel could not have been ineffective for not pursuing them. They will be denied as procedurally defaulted.

         3. Other Forensic Evidence

         Finally, Petitioner argues that trial counsel failed to investigate other forensic evidence that he claims would have discredited the Y-chromosome evidence: (1) the lack of blood on Petitioner’s clothes when he turned himself in to the police; (2) the fact that he was eliminated as a contributor to the DNA test of the shotgun’s “forearm” area; and (3) the fact that the police lifted fingerprints from the crime scene and Sarah Bonnie’s car but never tested them. (Doc. 25 at 159-60.) These arguments are procedurally defaulted and insubstantial under Martinez due to lack of prejudice.

         None of these arguments discredit the Y-chromosome evidence-they go to whether Petitioner was guilty of murder. For the reasons already discussed above, there was overwhelming evidence that Petitioner was the murderer. Furthermore, the evidence Petitioner cites does not show a reasonable probability of a different result. Petitioner’s own statement was the only evidence that he was still wearing the same clothes two days after the murders. (Trial Tr. at 27-28.) Although the State recovered an unidentified person’s DNA from the forearm area of the shotgun, and Petitioner was eliminated as a contributor for this DNA test, there was also not enough DNA on the shotgun’s trigger or stock areas for testing. (Pet. App. at 3016.) This could suggest that Petitioner wiped it partially clean or allowed someone else to handle it when he was trying to sell it, or simply that someone else handled it prior to the murders. Finally, Petitioner does not say whose fingerprints he believes were at the crime scene or in the car, and the Court will not speculate about whether he would benefit from a fingerprint analysis that has not been conducted.

         Accordingly, there is not a reasonable probability that investigation of these other forensic issues would have led Petitioner to insist on a guilt-phase trial or led the jury to assess a life sentence. Because these parts of Claims 6 and 1(A)(4) lack merit, they are insubstantial under Martinez, and postconviction counsel could not have been ineffective for not pursuing them. They will be denied as procedurally defaulted.

         VII. Brady Violation for Suppressing Other CODIS Hits (Claim 7)

         In Claim 7, Petitioner argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963) by suppressing evidence that CODIS (the Federal Bureau of Investigation’s “Combined DNA Index System”) generated Y-chromosome “hits” against people other than Petitioner for the vaginal swabs. This claim is preserved for review under § 2254. (Doc. 29 at 13, 65.) The state court rejected this Brady claim in part because the jury was already told about a CODIS hit to a man named John Sim, and the relevant additional CODIS hit to a man named Timothy Kathcart[8]did not create a “reasonable probability that the jury would have found [Petitioner] did not rape Sarah.” Dorsey v. State, 448 S.W.3d at 285-86.

         Petitioner first argues that the state court’s decision was “contrary to” Brady because it focused on the probability that the jury would not have found a rape instead of the probability that the jury would have questioned the State’s DNA evidence in general. (Doc. 25 at 216-18.) The phrase “contrary to” for purposes of § 2254 means contrary to a Supreme Court holding on a question of law or on a materially indistinguishable set of facts. Williams, 529 U.S. at 412-13. Here, the state court correctly recited the materiality standard as “a reasonable probability that the result would have been different” and rejected Petitioner’s claim by addressing the crux of his argument. Dorsey v. State, 448 S.W.3d at 285; see Strickler v. Green, 527 U.S. 263, 280 (1999) (materiality standard). This was not “contrary to” Brady.

         The state court also did not unreasonably apply Brady’s materiality standard. Petitioner argues that these additional CODIS hits were material because, although the jury heard about the CODIS hit to John Sim, the prosecutor falsely suggested Mr. Sim was incarcerated at all relevant times. The state court held that there was no prejudice from the failure to disclose the hit to Kathcart because (1) the jury heard evidence that 2.3 out of every 1000 males would not be ruled out by the Y-chromosome test, as evidenced by the hit to John Sim; (2) Petitioner could not have argued that Kathcart committed the rape without evidence directly connecting him to the crime; and (3) the connecting evidence proffered (i.e., that Kathcart owned a truck, and the Bonnies’ neighbors heard a loud truck on the night of the murders) did not create a reasonable probability of a different result. Dorsey v. State, 448 S.W.3d at 286. This was a reasonable application of Brady’s materiality standard. The jury was told why the Y-chromosome test would not rule out other males, and the evidence connecting other CODIS hits to this crime was weak in comparison to the extensive evidence connecting Petitioner to the crime.

         Finally, Petitioner argues that the state court’s decision was contrary to Holmes v. South Carolina, 547 U.S. 319, 328-31 (2005), which struck down certain exclusionary rules that prohibited defendants from introducing evidence of third-party guilt. Holmes expressly ratified Missouri’s third-party guilt rule because, unlike the South Carolina rule, it did not allow exclusion based on the strength of the State’s case. Id. at 327 n.* Here, the state court noted that, “[w]ithout evidence directly connecting Kathcart to the crime, ” Petitioner would have been prohibited from introducing evidence that Kathcart committed the rape. Dorsey v. State, 448 S.W.3d at 286. The state court then concluded that Petitioner would not have been prejudiced even if this evidence could have been presented to the jury. Id. This was not contrary to Holmes. Therefore, Claim 7 will be denied on the merits.

         VIII. Ineffective Assistance for Failure to Investigate Other CODIS Hits (Claim 8)

         In Claim 8, Petitioner argues that trial counsel was ineffective for failing to investigate the CODIS hits referenced in Claim 7. The State concedes that this claim is preserved. (Doc. 29 at 13, 65; Doc. 29-13, PCR Appellant’s Br. at 65.) Because the state court did not analyze this claim, the Court will review it de novo. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (reviewing for prejudice de novo because the state court addressed only deficiency and did not reach prejudice).

         This claim fails for largely the same reasons as Claim 7: the jury was told why the Y-chromosome test would not rule out other males, and the evidence connecting the other CODIS hits to the crime was weak in comparison to the extensive evidence connecting Petitioner to the crime. Petitioner also argues that his guilty plea and sentence should be vacated because trial counsel was ineffective for failing to investigate suspicious deposition testimony from the State’s DNA analyst, Jason Wyckoff. Mr. Wyckoff stated in his deposition that CODIS did not register a hit to Petitioner until after the prosecutor asked him to generate documents about it in April 2008. (Doc. 25 at 220-21; Pet. App. at 4997-5001, 5040-43.) However, lab records show that Petitioner’s profile hit against the vaginal swabs on January 29, 2008, shortly after it was entered into the database on January 23, 2008. (Pet. App. at 3180, 3940; Doc. 29-11, PCR Tr. at 434, 436.) Accordingly, there is not a reasonable probability that further investigation into this issue would have led Petitioner to insist on a guilt-phase trial or led the j ury to asse ss a life s entence. Therefore, Claim 8 will be denied on the merits.

         IX. Brady Violation Regarding Impeachment Evidence of Patricia Cannella (Claim 9)

         In Claim 9, Petitioner argues that the State suppressed evidence he could have used to impeach Patricia Cannella. This claim is procedurally defaulted. (Doc. 95, Oral Arg. Tr. 108-09; Doc. 29-13, PCR Appellant’s Br.) Like Claim 5, Petitioner has not provided sufficient authority to expand Martinez to defaulted Brady claims. However, Petitioner also argues that there is cause for the default because the State suppressed this Brady evidence until it was too late for him to raise it in the state postconviction proceedings. (Doc. 86 at 29.) This would be enough to satisfy the “cause and prejudice” standard if Petitioner could show Brady materiality, see Strickler, 527 U.S. at 282, but he cannot show materiality in this case.

         The impeachment evidence at issue consists of (1) prior convictions and police reports showing Cannella’s illegal activities and (2) evidence that the prosecution treated her favorably during her own criminal case. (Pet. App. at 4660-4945.) Petitioner claims trial counsel could have used this to show that Cannella was lying when she testified that she did not sell drugs to Petitioner. However, impeachment on this basis would not have had a significant impact on the case. Although Cannella denied selling Petitioner drugs, both the prosecutor and Petitioner himself pointed out that he obtained drugs from Cannella. (Trial Tr. at 888, 949.) Furthermore, Cannella gave largely cumulative testimony. She testified that she loaned Petitioner money for drugs and that he tried to pay it back by selling property later identified as the Bonnies’. (Trial Tr. at 603-10.) The State also put on two other witnesses who said they helped remove drug dealers from Petitioner’s apartment the day of the murders and two other witnesses who said Petitioner attempted to sell the Bonnies’ property the next morning. (Id. at 581, 596-97, 617-20, 627-34.) Cannella’s testimony was far from “pivotal, ” as Petitioner suggests. (Doc. 25 at 241-42.)

         Petitioner also argues that trial counsel could have accused Cannella and her suspected associate, Kelvin Swift, of being the murderers or acting as Petitioner’s accomplices. However, Petitioner has not sufficiently linked Cannella or Swift to the crime. Petitioner does not allege that Swift’s DNA was consistent with the vaginal swabs. He argues that Cannella was seen in a truck on the day of the murders and that the Bonnies’ neighbors heard a loud truck that night. This connection is tenuous at best and insufficient to link Cannella and Swift to the crime. In contrast, there was considerable evidence that Petitioner was involved in the murders, including his own admissions to police and the fact that the Y-chromosome test did not exclude him as a contributor to the Y-chromosome DNA found on Sarah Bonnie’s vaginal swabs.

         Petitioner points to (1) four-year-old J’s statement to police that she heard people open the front door and come into the house, that a “monster” killed her parents, and that Petitioner was a good man who helped her; and (2) a juror’s affidavit stating that this testimony could have changed his mind if it were presented.[9] (Pet. App. at 55-56, 350-59.) However, J did not identify Cannella or Swift or tell police that she saw anyone except Petitioner, and the officers were convinced she had “either been told, or overheard, many of the details regarding this issue.” (Id. at 56.) Furthermore, the juror’s affidavit is inadmissible to impeach the verdict. See Fed. R. Evid. 606(b)(1) (“During an inquiry into the validity of a verdict . . . a juror may not testify about . . . the effect of anything on that juror’s or another juror’s vote . . . or any juror’s mental processes concerning the verdict . . . .”); Warger v. Shauers, 135 S.Ct. 521, 527 (2014) (describing “the rule against jurors’ impeaching their verdicts”); Strickland, 466 U.S. at 695 (“[E]vidence about the actual process of decision, if not part of the record of the proceeding under review, . . . should not be considered in the prejudice determination.”).

         Accordingly, there is not a reasonable probability that this impeachment evidence would have led Petitioner to insist on a guilt-phase trial or led the jury to grant a life sentence. Because Petitioner cannot show ...


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