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Gillespie v. Precythe

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

December 23, 2019

WAYNE E. GILLESPIE, Petitioner,
v.
ANNE L. PRECYTHE, [1]Respondent.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Petitioner's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) (Doc. 6). After reviewing the case, the Court has determined that Petitioner is not entitled to relief. As a result, the Court will DENY the Petition and DISMISS the case.

         I. BACKGROUND

         On August 23, 2012, Petitioner was found guilty by a jury in the Circuit Court of St. Louis City, Missouri of robbery in the first degree (Count I) and kidnapping (Count III) (Doc. 8-3 at 31). On September 14, 2012, the Circuit Court sentenced Petitioner to thirty years' imprisonment on each count to run concurrently in the custody of the Missouri Department of Corrections (Id. at 57-59). Petitioner appealed the judgment, raising two claims:

(1) The trial court erred in admitting the rebuttal testimony of Officer Stephen Perry because it was outside the scope of rebuttal in that the State injected the issue of victim Zia Choudhury's (“the victim”) sobriety into trial; and
(2) The trial court erred by admitting evidence that Petitioner neglected to tell police that James Scott was the second man involved in the incident because such evidence improperly commented on Petitioner's post-arrest silence.

(Doc. 8-2). On June 18, 2013, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence on direct appeal (Id.; State v. Gillespie, 401 S.W.3d 560 (Mo.Ct.App. 2013)).

         Petitioner timely filed a pro se motion for post-conviction relief raising twenty-seven claims (Doc. 8-7 at 7-23). On January 20, 2014, counsel filed on Petitioner's behalf an amended motion requesting an evidentiary hearing and asserting that Petitioner's trial counsel was ineffective for failing to call Donna Pate as a witness at trial and for failing to investigate and to call Rebecca Choudhury and Charles Martin as witnesses at trial (Id. at 29-50). Counsel attached a copy of the twenty-seven claims included in Petitioner's pro se motion to the amended motion (Id.). After an evidentiary hearing, the motion court denied Petitioner's motion (Id. at 57-71). Of note, the motion court indicated that Petitioner may have been abandoned by counsel in light of counsel's untimely filing of the amended motion but found the abandonment harmless as the motion court purported to address “all claims in both the pro se motion and amended motion” (Id. at 57, n.1). The motion court did address all three claims included in the amended motion filed by counsel and also twenty-five of the twenty-seven claims filed by Petitioner in his pro se motion (Id. at 57-71). Petitioner, with the assistance of counsel, filed an appeal asserting that the motion court erred in failing to conduct an abandonment hearing after appointed counsel filed a late amended motion and that not all of Petitioner's pro se claims were adjudicated by the motion court (Doc. 8-5). On May 17, 2016, the Missouri Court of Appeals for the Eastern District affirmed the motion court's denial of the motion (Id.; Gillespie v. State, 504 S.W.3d 68 (Mo.Ct.App. 2016)).

         On February 10, 2017, Petitioner filed his Petitioner under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody raising the follow 6 grounds:

1) The trial court erred by admitting the rebuttal testimony of Officer Stephen Perry;
2) The trial court erred by permitting the prosecutor to cross-examine Petitioner about his failure to tell police investigators about his co-defendant;
3) Ineffective assistance of trial counsel for failing to call Donna Pate as a witness;
4) Ineffective assistance of trial counsel for failing to call Rebecca Choudhury as a witness;
5) Ineffective assistance of trial counsel for failing to call Charles Martin ...

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