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Wright v. Minor

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

January 16, 2020

DALE M. WRIGHT, Petitioner,
v.
DEAN MINOR, Respondent.

          MEMORANDUM

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court upon the petition of Dale M. Wright for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.

         BACKGROUND

         In 2014, petitioner was convicted of first-degree child molestation and attempted first-degree statutory sodomy. (Doc 11., Ex. 5 at 3.) Petitioner appealed from the judgment to the Missouri Court of Appeals, claiming that the trial court plainly erred in admitting the testimony of Connilee Christie and Krystal Hensley pertaining to statements made by the child victim, K.M., about the incident and in admitting Exhibits 1 and 1A. Id. After the alleged incident, K.M. talked with Hensley on the phone and was forensically interviewed by Christie at the Children's Advocacy Center of St. Louis. At trial, Hensley and Connilee testified, and a DVD and transcript of Christie's interview were admitted as Exhibits 1 and 1A. Defense counsel said he reviewed Exhibit 1 and had no objection, and, later on, had no objection to the admission of Exhibit 1A. (Doc. 11, Ex. 1 at 262-63.)

         The Missouri Court of Appeals denied petitioner's direct appeal on April 21, 2015, where plaintiff had claimed the trial court erred in admitting the hearsay testimony of victim K.M. in testimony and exhibits.

         Petitioner then filed a motion for post-conviction relief which was denied without an evidentiary hearing on November 9, 2015. (Doc. 11, Ex. 6 at 56.) Petitioner appealed the denial of post-conviction relief, arguing the motion court erred in denying his motion without an evidentiary hearing because he alleged unrefuted facts that he had ineffective assistance of counsel for failing to object when the prosecution called Wright a child molester during closing arguments. The Missouri Court of Appeals affirmed the denial on November 1, 2016. (Doc. 11, Ex. 9 at 1.) The court held that because a prosecutor may make arguments based on the facts presented in evidence at trial, the statement was not in error, and an objection to it would have been without merit. Counsel was not held to be ineffective for failing to make non-meritorious objections. Thus an evidentiary hearing was not required because the record showed Wright was not entitled to relief. Thereafter, petitioner filed the current petition for writ of habeas corpus.

         PETITIONER'S GROUNDS FOR FEDERAL HABEAS RELIEF

         Petitioner alleges two grounds for relief in this habeas action:

(1) Hearsay statements by the child victim were improperly admitted through the testimony of Krystal Hensley and Connilee Christie and Exhibits 1 and 1A under Missouri statute section 491.075, thus violating petitioner's Fourteenth Amendment rights to due process of law and a fair trial. (Doc. 1, Ex. 3 at 1.)
(2) Petitioner had constitutionally ineffective assistance of counsel because a reasonably competent attorney under similar circumstances would have objected when the prosecution called appellant a child molester during closing arguments and such objection would have produced a different outcome at trial, thus violating appellant's Fifth, Sixth and Fourteenth Amendment rights to effective assistance of counsel, due process of law, a fair trial, and access to courts. (Doc. 1, Ex. 3 at 3.)

         EXHAUSTION AND PROCEDURAL BAR

         A petitioner must file his petition for writ of habeas corpus within the statutory limitations period, and this habeas petition was timely filed.[1]

         Additionally, petitioners must exhaust their state law remedies before they may bring a petition under 28 U.S.C. §2254. A prisoner has not exhausted state law remedies if he “has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. §2254(c). An appeal to an intermediary state appellate court exhausts state remedies in Missouri, permitting federal habeas review. See Mo. Sup. Ct. R. 83.04; Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir. 2002) (“Rule 83.04 ... makes clear that Missouri does not consider a petitioner who bypasses its supreme court in favor of federal habeas review to have denied the State its rightful opportunity to resolve federal constitutional claims.”). Petitioner has exhausted his claim on Ground 2, through his motion for post-conviction relief, but has only partially exhausted his claims in Ground 1.

         In Ground 1, petitioner claims that the court improperly admitted hearsay statements of victim K.M. in two witnesses' testimony and in two exhibits. Trial counsel objected to the hearsay in the testimony but not in the exhibits. Petitioner raised these claims on direct appeal and, while the Missouri Court of Appeals addressed the hearsay in testimony on the merits, it did not address the hearsay in the exhibits on the merits. Rather, the court found that claim to be waived, because petitioner's trial counsel had not objected to its introduction: if “a party affirmatively states that it has no objection to ...


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