Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

King v. Payne

United States District Court, W.D. Missouri, St. Jospeh Division

October 23, 2019

TONY RAY KING, Petitioner,
v.
STANLEY PAYNE, Warden, Eastern Reception, Diagnostic, and Correctional Center, Respondent.

          ORDER AND OPINION (1) DENYING PETITIONER'S AMENDED PETITION FOR WRIT OF HABEAS CORPUS, (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (3) DISMISSING MATTER WITH PREJUDICE

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is Petitioner Tony Ray King's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Doc. #3. For the following reasons, the Court denies Petitioner's Amended Petition for Writ of Habeas Corpus and declines to issue a certificate of appealability.

         I. BACKGROUND

         The underlying facts were summarized by the Missouri Court of Appeals:

In late 2011 and early 2012, King lived with his seven-year-old son, J.L., in a mobile home in rural Harrison County. At the time, King was involved in a custody battle with J.L.'s mother, Mira Huffman. In October 2011, King told Huffman she would never see her son again.
In September or October 2011, a friend of King's saw King slap or hit J.L. Starting on November 16, 2011 and continuing into January 2012, J.L.'s teacher, principal, and school counselor began noticing several suspicious bruises, scratches, and sores on J.L.'s head, face, and neck. J.L. and King gave differing explanations for what caused the injuries. On January 6, after one of King's friends observed numerous bruises and injuries on J.L., King told the friend that J.L. had gotten kicked off the bus and that he was going to “beat [J.L.'s] butt” because of it. During this same time, J.L. had significant absenteeism from school. From mid-November to January 11, 2012, J.L. was in school only 15 of 32 school days.
On January 10, 2012, King called J.L.'s school and said that J.L. would be living with King's sister in another town and transferring to a different school. That same morning, King went to visit Robert Hunter. As King and Hunter talked outside, Hunter looked into the cab of King's pickup and saw a small person lying on the passenger seat. The figure, which appeared to be the same size as a seven-year-old child, was completely covered with a blanket except for his hand. When Hunter asked King why his son was with him, King said that he was taking J.L. to his sister's house. Hunter did not see the child move during the entire conversation. That same day, King told another friend, Eric Bridger, that J.L. was staying with King's sister. That evening, King's sister called Bridger trying to find J.L. King's sister told Bridger that she had spoken with King, but King would not tell her where J.L. was.
Between January 9 and January 11, 2012, two men, David Baker and Tanner Henry, were scrapping metal on the property on which King's mobile home was located. While Baker and Henry saw King occasionally over the course of those three days, they never saw J.L., and King did not talk about J.L. On the morning of January 11, 2012, King told Baker and Henry that J.L. was sleeping in the mobile home and that he needed to go get a tire repaired. King asked them to tell J.L. where he had gone if J.L. woke up.
About 10 to 15 minutes after King left, Baker noticed a lot of smoke coming from the vicinity of King's mobile home. When Baker arrived at the mobile home, he found King, with a sweatshirt wrapped around his face, apparently trying to get inside. King said that he had lost his phone, so Baker called 911. King then told Baker, “My son's in there.” When Henry arrived at the mobile home, he and Baker repeatedly asked King where his son was. King simply pointed in the general direction of the flames. While Baker and Henry tried to get into the mobile home and called out to J.L., King knelt in the yard and then calmly sat in his pickup truck. King then futilely rammed his truck into the frame of the mobile home several times. Baker and Henry observed that he did not speak or display any emotion while doing this.
After a deputy arrived, King became emotional and began to cry. When the deputy asked King where his son might be located in the mobile home, King said that J.L. was in a bedroom in the southeast corner. King then broke out a window in the home, but it was not possible to get in the window due to the smoke and fire. After putting out the fire, the firefighters found J.L.'s body in his bedroom at the east end of the mobile home. Later that day, King went to the home of Bridger and Bailey Hutchins and said that he had two gas cans that he needed to get rid of. While there, King “didn't seem really upset.” An investigator with the Missouri State Fire Marshall's office found no accidental causes for the fire. He was unable to determine a specific cause, but he noted that the fire progressed faster than he would have expected. He did not find evidence of any accelerants but, given the short time frame and the amount of damage from the fire, he suspected that accelerants had been used.
Dr. Keith Norton performed an autopsy on J.L. Norton found bruises along the right side of J.L.'s chin line and jawline. The bruises appeared to be recent, as if they had occurred within the past 24 hours. J.L. had recent bruises just above and below his right collarbone. According to Norton, children are not likely to injure this part of their body in the course of play. J.L. had bruises on his right arm that were consistent with his arm having been grabbed very hard. J.L. also had injuries to his internal organs that were consistent with blunt trauma.
Additionally, J.L. had bruises on his neck that were consistent with his having been strangled or choked. There was bruising in the tissues around and behind J.L.'s larynx. J.L. had no soot in his windpipe or lungs. Norton concluded that J.L. was dead before the fire started. Norton concluded that J.L. did not die from smoke inhalation but, rather, from a lack of blood flow to the brain “probably” due to manual strangulation. Toxicology results confirmed that carbon monoxide was not the cause of J.L.'s death.
The State charged King as a prior and persistent offender with first-degree murder, second-degree arson, and felony child abuse. A jury found him guilty, and the court sentenced him to life in prison without the possibility of probation or parole for the murder and terms of fifteen years in prison each for the arson and abuse counts, to be served consecutively.

Doc. #17-12, at 3-6. The Missouri Court of Appeals affirmed Petitioner's convictions and sentences. State v. King, 453 S.W.3d 363 (Mo.Ct.App. 2015), abrogated in part by Hoeber v. State, 488 S.W.3d 648, 657 (Mo. banc 2016); see also Doc. #17-6.

         Petitioner filed a pro se motion for post-conviction relief in the Circuit Court of Buchanan County (hereinafter, “motion court”). Doc. #17-7, at 13-27. The motion was later amended when counsel was appointed. Id. at 32-66. After an evidentiary hearing was held (Doc. #17-8), the motion court denied Petitioner's motion. Doc. #17-7, at 288-342. Petitioner appealed the motion court's decision to the Missouri Court of Appeals, which affirmed the motion court's decision. Doc. #17-12. In November 2018, Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Missouri. Doc. #1. Shortly thereafter, he filed an Amended Petition (Doc. #3) wherein he asserts the following grounds for relief:

(1) Petitioner was denied his rights to due process, a fair trial, and proof beyond a reasonable doubt when the trial court overruled his motion for judgment of acquittal because the evidence was insufficient to support a finding that he committed first-degree murder.
(2) Petitioner was denied his rights to due process, a fair trial, and proof beyond a reasonable doubt when the trial court overruled his motion for judgment of acquittal because the evidence was insufficient to support a finding that he committed child abuse.
(3) Petitioner was denied his rights to due process, a fair trial, and proof beyond a reasonable doubt when the trial court overruled his motion for judgment of acquittal because the evidence was insufficient to support a finding that he committed arson.
(4) Petitioner was denied his rights to due process, a fair trial, a unanimous verdict, and freedom from double jeopardy when the trial court submitted Instruction No. 8, which did not specify what alleged act of child abuse was committed to find Petitioner guilty of Count III.
(5) Petitioner was denied his rights to due process and a fair trial when the trial court admitted Dr. Long's testimony about the testing of J.L.'s blood and the level of carbon dioxide in J.L.'s blood.
(6) Petitioner was denied his rights to due process, a fair trial, and present a defense when the trial court sustained the State's objection to Petitioner's offer of proof regarding Mira Huffman's statements to Naomi Hilliard.
(7) Petitioner's rights to due process, a fair trial, a properly instructed jury, and effective assistance of counsel were violated when trial counsel failed to object to Instruction No. 8.
(8) Petitioner's rights to due process, a fair trial, a conflict-free counsel, and effective assistance of counsel were violated when trial counsel represented Petitioner and J.L.'s half-brother while developing and attempting to present a defense of third-party guilt regarding Mira Huffman.
(9) Petitioner's rights to due process, a fair trial, a fair and impartial jury, and effective assistance of counsel were violated when trial counsel failed to object to Petitioner being visibly shackled while walking from the jail to the courtroom during trial.
(10) Petitioner's rights to due process, a fair trial, and effective assistance of counsel were violated when trial counsel failed to properly develop and present a defense of third-party guilt.
(11) Petitioner's rights to due process, a fair trial, and effective assistance of counsel were violated when trial counsel failed to properly investigate and call an expert regarding the cause of the fire to rebut the State's expert.
(12) Petitioner's rights to due process, a fair trial, and effective assistance of counsel were violated when trial counsel failed to properly investigate J.L.'s autopsy.
(13) Petitioner's rights to due process, a fair trial, and effective assistance of counsel were violated when trial counsel failed to object to the State's late endorsement of Nate Pryer.
(14) Petitioner's rights to due process, a fair trial, and effective assistance of counsel were violated when trial counsel failed to impeach Robert Hunter with the fact that Hunter could not have observed Petitioner in a red truck the day before the fire because the truck was not in operating condition.
(15) Petitioner's rights to due process and effective assistance of counsel were violated when trial counsel improperly advised Petitioner that a conviction for first-degree murder was treated as a thirty-year sentence, so he had nothing to lose by going to trial.
(16) Petitioner's rights to due process and effective assistance of counsel were violated when trial counsel failed to move for a mistrial after witnesses Natalie Arnold, Judith Hinkle, and Jaime Carter were observed discussing their testimonies and comparing their notes.

         In January 2019, the Eastern District of Missouri transferred the matter to this Court because Petitioner's conviction arose in Buchanan County, which is in the Western District of Missouri. Docs. #4-5. After being granted three extensions of time, Respondent filed his response on April 24, 2019. Docs. #10, 13, 16-17. After being granted four extensions of time, Petitioner filed his traverse on September 27, 2019. Docs. #19, 21, 23, 25-26. On October 9, 2019, Petitioner filed an “Errata Sheet to Traverse, ” listing twenty-two corrections to his traverse. Doc. #27.

         II. STANDARD

         Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which amended 28 U.S.C. § 2254, a writ of habeas corpus shall not be issued on a claim litigated on the merits in state court unless the state court's decision either:

(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 State court proceeding.

28 U.S.C. § 2254(d). The “contrary to” and “unreasonable application” provisions in the first subsection have independent meaning. The “contrary to” provision applies “if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, or reached a decision contrary to Supreme Court precedent when confronting facts that were materially indistinguishable.” Jackson v. Norris, 651 F.3d 923, 925 (8th Cir. 2011). The “unreasonable application” clause applies “if the state court correctly identified the governing legal principle, but unreasonably applied it to the facts of the particular case.” Id.

         Section 2254(d) “limits the applicability of the AEDPA's deferential standard to claims that have been ‘adjudicated on the merits' in state court.” Worthington v. Roper, 631 F.3d 487, 495 (8th Cir. 2011) (citation omitted). Federal courts are “directed to undertake only a limited and deferential review of underlying state court decisions.” Id. (quoting Collier v. Norris, 485 F.3d 415, 421 (8th Cir. 2007)). “A federal court may not issue the writ simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. (internal quotations marks and citations omitted).

         III. DISCUSSION

         A. Alleged Court Errors

         (1) Grounds One, Two, and Three: Motions for Judgment of Acquittal

         Petitioner argues the trial court erred in overruling his motions for judgment of acquittal on first-degree murder, first-degree child abuse, and second-degree arson.

         (a) First-Degree Murder

         The trial court denied Petitioner's motion for judgment of acquittal on first-degree murder, and the Missouri Court of Appeals affirmed the trial court's decision. King, 453 S.W.3d at 370-72. In Ground One, Petitioner claims the appellate court unreasonably applied the law and made unreasonable determinations of fact when it affirmed the trial court's decision. Regarding this claim, the Missouri Court of Appeals stated the following:

At trial, the doctor who performed the autopsy, Dr. Norton, told the jury that the probable cause of Son's death was manual strangulation. He testified that Son had bruises along the right side of the chin line and jawline, one closer to the chin, and further back closer to the ear. The bruises appeared to be recent, having occurred within twenty-four hours. There were also recent bruises just above and below the right collarbone, which, Dr. Norton explained, is an area that children are not likely to injure while playing. There were also bruises on the neck consistent with having been strangled or choked, and there was bruising in the tissues around and behind the larynx. Significantly, Dr. Norton found no soot in the trachea or lungs. Dr. Norton concluded that the cause of death was “probably lack of oxygen to the brain secondary to not enough blood flow to the brain related to the pressing-the compression of the blood vessels in the neck.” The bruising in the neck indicated blunt force injury to the neck, and the lack of any other cause of death indicated that the cause of death was manual strangulation. Dr. Norton testified that it takes a minimum of ten seconds of strangulation in order for someone to become unconscious and that it likely would take another one to two minutes for death to occur.
The toxicology results showed that the carbon monoxide saturation in Son's blood was less than 10%, which is within the normal range, and was nowhere near the minimum 40% required to cause death. This, along with the evidence that there was no soot in Son's trachea or lungs, established that Son was dead before the fire started.

King, 453 S.W.3d at 370 (footnote omitted). While Petitioner “faulted” Dr. Norton for testifying J.L. “probably” died from manual strangulation, the Missouri Court of Appeals found “Dr. Norton's opinion did not have to be absolute for the evidence to be sufficient.” Id. (citation omitted). The appellate court also observed evidence corroborated Dr. Norton causation finding, including the bruised tissue around J.L.'s larynx. Id. at 371.

         Moreover, the Missouri Court of Appeals concluded circumstantial evidence supported the jury's finding that Petitioner knowingly caused J.L.'s death. Id. This evidence included but was not limited to (1) Petitioner's statement to J.L's mother that she would never see J.L. again; (2) J.L's suspicious injuries and bruises in the months preceding his death; (3) Petitioner telling the school he was taking J.L. out of school; (4) an individual seeing what he believed was J.L.'s “motionless body in the cab” of Petitioner's truck the day before J.L.'s death; (5) Petitioner stating he was taking J.L. to Petitioner's sister's house but his sister did not know where J.L. was that same day; (6) Petitioner failing to help rescue J.L. from the burning trailer; (7) Petitioner's behavior changing once law enforcement arrived at the fire; and (8) Petitioner saying he needed to get rid of gas cans after the fire. Id. The appellate court determined the foregoing evidence was “sufficient for a reasonable juror to find that [Petitioner] knowingly caused Son's death by strangling him, ” and thus, the trial court did not err in denying his motion for acquittal on first-degree murder. Id. at 371-72.

         This Court must determine whether the decision issued by the Missouri Court of Appeals was based on an unreasonable determination of fact or was contrary to or involved an unreasonable application of clearly established law. 28 U.S.C. § 2254(d). Petitioner argues the appellate court's decision was based on an unreasonable determination of fact because “[t]here was no corroborative causation evidence…that [his] son died of manual manipulation, ” and “Dr. Norton's testimony that strangulation ‘probably' was the cause is insufficient” to find Petitioner guilty of first-degree murder. Doc. #3, at 14-15; Doc. #26, at 17. But, as identified supra, there was corroborating evidence of manual manipulation, and there was ample circumstantial evidence supporting the jury's finding of guilt of first-degree murder. King, 453 S.W.3d at 370-72.

         Petitioner also claims the Missouri Court of Appeals unreasonably applied In re Winship, 397 U.S. 358 (1970), and Jackson v. Virginia, 443 U.S. 307 (1979), but he does not explain how the appellate court unreasonably applied the law espoused in those cases. Doc. #3, at 15; Doc. #26, at 16-18. Petitioner's failure to provide any facts - much less, particularized facts - supporting his claim for habeas corpus review violates Rule 2(c) of the Federal Rules Governing Section 2254 Proceedings and this Court's Local Rules. 28 U.S.C. § 2254 Rule 2(c)(2) (requiring a petitioner to, among other things, “state the facts supporting each ground”); L.R. 9.2(b)(12) (requiring a petitioner to state “the facts that support each” claim); Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990) (holding a petitioner, to comply with Section 2254 Rule 2(c), must “state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified.”).

         Nevertheless, in Winship, the Supreme Court “explicitly h[e]ld that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364. In Jackson, the Supreme Court declared that when a court reviews “the sufficiency of the evidence to support a criminal conviction, ” “the relevant question is whether, after the viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 318-19. In this matter, the Missouri Court of Appeals determined, after reviewing the evidence in the light most favorable to the State, the evidence was “sufficient for a reasonable the jury to find that [Petitioner] knowingly caused [J.L.'s] death by strangling him, ” and there was “sufficient evidence for the jury to find “deliberation.” 453 S.W.3d at 369-70, 371-72

         Based on the foregoing, the Court finds the decision of the Missouri Court of Appeals on the claim asserted in Ground One was not based on an unreasonable determination of facts in light of the evidence and was not an unreasonable application of clearly established federal law. In addition, the Missouri Court of Appeals did not render unreasonable determinations of fact, and it correctly identified the governing legal principles and reasonably applied those principles to the facts before it. Accordingly, Ground One is denied.

         (b) First-Degree Child Abuse

         In Ground Two, Petitioner claims the trial court erred in denying his motion for judgment of acquittal on first-degree child abuse, and the Missouri Court of Appeals erred in affirming that decision. “[A] person commits the crime of abuse of a child if such person [k]nowingly inflicts cruel and inhuman punishment upon a child less than seventeen years old[.]” King, 453 S.W.3d at 372 (quoting Mo. Rev. Stat. § 568.060.1(1)). The State alleged Petitioner, between November 16, 2011, and January 10, 2012, struck J.L., who was under the age of seventeen, “with such repetition and force as to leave bruises and abrasions, ” and in doing so, he “inflicted cruel and inhuman punishment” on J.L. Id.

         At trial, the following evidence was presented with regard to the allegation of child abuse: (1) an individual witnessed Petitioner slap or hit J.L. in September or October 2011; (2) J.L.'s “teachers and counselors began noticing suspicious injuries on” J.L.; (3) on November 16, 2011, the school's principal noticed a bump on J.L.'s forehead; (4) in November 2011, Petitioner was informed that J.L. had behavioral problems at school, and when J.L. returned to school the following day, “he had purple splotches under his right eye and a purple or pink mark in the left corner of his eye, ” but J.L.'s explanations about the injuries were inconsistent; (5) by November 29, 2011, J.L.'s injuries “had worsened, ” he “had scratches around his eyes and neck, ” and had a “large infected rip in the crease behind his ear, ” causing the school to call the child abuse hotline; (6) J.L. attended three out of fourteen school days in December 2011; (7) after he missed an entire week of school in December 2011, he returned to school with “a red spot in his left eye”; (8) J.L. did not return to school after the holiday break, and the school was informed “a tree had fallen” on him, resulting in his hospitalization; (9) upon returning to school on January 4, 2012, J.L. “had numerous large bruises on his face and a tear in the crease behind his other ear”; (10) on January 9, 2012, a school official noticed bruises on J.L.'s neck and stomach; and (11) when informed that J.L. lost bus privileges, Petitioner told a school official “he was going to take Son home and ‘beat his butt.” Id. at 372-73.

         The Missouri Court of Appeals also noted Dr. Norton testified that J.L., at the time of his death, had “bruises along the right side of his jaw line, one closer to the chin, and one further back closer to the ear”; “bruises on and around [his] neck and collarbone”; “bruising…around and behind the larynx”; “bruises on his right arm… consistent with having been grabbed very hard”; “bloody fluid and pus in [his] chest cavity” indicating “inflammation that had existed for some time and could have been caused by blunt impact to the chest”; and “bleeding around the right lung and bruising behind the belly cavity, both of which also could have been caused by blunt impact.” Id. at 373.

         The Missouri Court of Appeals found the evidence presented at trial was sufficient to establish Petitioner's guilt of child abuse beyond a reasonable doubt. Id.

Here, a reasonable juror could infer from the evidence presented that [Petitioner] was injuring his son, was lying about how the injuries occurred, was instructing his son to lie about how the injuries occurred, and, when the school and Children's Services became concerned, pulled his son out of school. This evidence, combined with the fact that King was heard threatening to take Son home and “beat his butt” and had been seen inappropriately physically disciplining his son before, was sufficient evidence for a reasonable juror to find King guilty of child abuse.
Viewing the evidence in the light most favorable to the verdict, there was sufficient evidence from which a reasonable juror could find that King inflicted cruel and inhuman punishment on Son and was guilty of felony child abuse.

Id. at 373-74.

         As explained supra, this Court must determine whether the decision of the Missouri Court of Appeals is either contrary to or involved an unreasonable application of clearly established law or was based on an unreasonable determination of fact. 28 U.S.C. § 2254(d). Petitioner argues the Missouri Court of Appeals ignored there were valid explanations for J.L.'s injuries, “failed to acknowledge” J.L.'s school made a hotline call, and disregarded the subsequent investigation revealed no abuse. Doc. #3, at 17; Doc. #26, at 19. As he did with Ground One, Petitioner claims the appellate court unreasonably applied Winship and Jackson, but he does not explain how the appellate court unreasonably applied these cases. Doc. #3, at 17. Petitioner's failure to provide any facts supporting Ground Two violates Rule 2(c) of the Federal Rules Governing Section 2254 Proceedings and the Court's Local Rules. 28 U.S.C. § 2254 Rule 2(c)(2); L.R. 9.2(b)(12); Adams, 897 F.2d at 334.

         Regardless of Petitioner's failure, the Court reviewed the record and the decision issued by the Missouri Court of Appeals. The Court finds the appellate court's decision was neither based upon an unreasonable determination of the facts in light of the evidence, nor was it an unreasonable application of clearly established federal law. The appellate court correctly identified the governing legal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.