United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Damion Neal's Petition
under 28 U.S.C. §2254 for Writ of Habeas Corpus By a
Person in State Custody (ECF No. 1). Because this Court has
determined that Neal's claims are inadequate on their
face and the record affirmatively refutes the factual
assertions upon which Neal's claims are based, this Court
decides this matter without an evidentiary
was charged in Cause No. 1122-CR00649-01 with two counts of
robbery first degree, one count of robbery second degree and
two counts of armed criminal action. The charged crimes arose
out of three incidents with three different victims and
occurred on three different dates in November and early
December 2010. Following a jury trial, Neal was found not
guilty of one of the robbery first degree counts and the
corresponding armed criminal action count. Neal was found
guilty of the remaining three counts and he was sentenced to
two concurrent terms of twenty years and one concurrent term
of fifteen years. The convictions were affirmed on appeal.
State v. Neal, 436 S.W.3d 692 (Mo.Ct.App. 2014). On
March 25, 2015, Neal's Rule 29.15 Motion was denied.
to 28 U.S.C. §2254, a district court "shall
entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the
United States." 28 U.S.C. §2254(a). "[I]n a
§2254 habeas corpus proceeding, a federal court's
review of alleged due process violations stemming from a
state court conviction is narrow." Anderson v.
Goeke, 44 F.3d 675, 679 (8th Cir. 1995). "[A]n
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
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 State court
proceeding." 28 U.S.C. §2254(d). '"A state
court's decision is contrary to ... clearly established
law if it applies a rule that contradicts the governing law
set forth in [Supreme Court] cases or if it confronts a set
of facts that are materially indistinguishable from a
[Supreme Court] decision ... and nevertheless arrives at a
[different] result.'" Cagle v. Norris, 474
F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v.
Esparza, 540 U.S. 12, 15-16 (2003)). The Supreme Court
has emphasized the phrase "Federal law, as determined by
the Supreme Court," refers to "the holdings, as
opposed to the dicta, of this Court's decisions,"
and has cautioned that §2254(d)(1) "restricts the
source of clearly established law to [the Supreme]
Court's jurisprudence." Williams, 529 U.S.
at 412. A State court "unreasonably applies"
federal law when it "identifies the correct governing
legal rule from [the Supreme] Court's cases but
unreasonably applies it to the facts of the particular state
prisoner's case," or "unreasonably extends a
legal principle from [the Supreme Court's] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply." Williams, 529 U.S. at 407. A State
court decision may be considered an unreasonable
determination "only if it is shown that the state
court's presumptively correct factual findings do not
enjoy support in the record." Ryan v. Clarke,
387 F.3d 785, 791 (8th Cir. 2004) (citing 28 U.S.C. §
I and II involved a robbery on November 29, 2010. (Resp. Ex.
D at 2). Counts III and IV charged Neal with a robbery that
occurred on December 1, 2010. (Resp. Ex. D. at 3). Count V
charged Neal with a robbery that occurred on November 12,
2010. (Resp. Ex. D at 2). Prior to trial, Neal filed a motion
to sever Counts I and II from Counts III and IV, and that
Count V should be severed from all other counts. The trial
court denied the motion to sever. A jury found Neal guilty of
Count III for First Degree Robbery, Count IV for Armed
Criminal Action, and Count V for Second Degree Robbery.
(Resp. Ex. H. at 4). The jury acquitted Neal on Counts I and
II of robbery in the first degree and armed criminal action.
(Resp. Ex. D. at 2-3).
single ground for relief, Neal maintains that Counts III and
IV of his indictment should have been severed from Count V
because Counts III and IV were not similar to Count V and
were not part of a common scheme or plan. (ECF No. 1 at 5).
Neal raised this argument on direct appeal and the Missouri
Court of Appeals denied it. (Resp. Ex. H. at 4-9).
the Missouri Rules of Criminal Procedure, "[a]ll
offenses that are of the same or similar character or based
on two or more acts that are part of the same transaction or
on two or more acts or transactions that are connected or
that constitute parts of a common scheme or plan may be
charged in the same indictment or information in separate
counts.". Mo. Stat. Crim. R. 24.05. Rule 24.05 appears
to have been based on Fed.R.Crim.P. 8(a), which contains
virtually the same language. Robinson v. Wyrick, 735
F.2d 1091, 1094 (8th Cir. 1984); Fed. R Crim P. 8(a)
("The indictment or information may charge a defendant
in separate counts with 2 or more offenses if the offenses
charged-whether felonies or misdemeanors or both-are of the
same or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a
common scheme or plan.").
Misouri Court of Appeals recently articulated the standard
for joinder of offenses:
"Liberal joinder of offenses is favored to achieve
judicial economy, and the trial court's decision should
be based solely on the State's evidence." State
v. Langston,889 S.W.2d 93, 96 (Mo. App. E.D. 1994).
"'Connected' has its ordinary meaning and
includes 'united ... by dependence or relation, or by
order in a series' and 'joined or linked together
[in] a series, having the parts or elements logically
related.'" Smith, 389 S.W.3d at 209
(quoting State v. McKinney,314 S.W.3d 339, 341-42
(Mo. banc 2010)); see also State v. Morrow, 968
S.W.2d 100, 109 (Mo. banc 1998) (" 'Connected'
is defined as: '[j]oined; united by junction, by an
intervening substance or medium, by dependence or relation,
or by order in a series.'" (quoting Black's Law
Dictionary 302 (6th ed. 1990)); State v. McDonald,321 S.W.3d 313, 318 ...