SHIRLEY PADMORE MENSAH, Magistrate Judge.
This case is before the undersigned on Petitioner Rodney Foster's First Amended Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2254, filed through counsel. (Doc. 53). This case was referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b). For the following reasons, the undersigned recommends that the petition be denied.
In 2010, Petitioner was convicted of one count of robbery in the first degree, one count of assault in the first degree, and two counts of armed criminal action, and he was sentenced to four terms of twenty-eight years' imprisonment, to run concurrently. Resp't Ex. B, Doc. 10-2, at 68-72.
On February 2, 2015, acting pro se, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C.§ 2254. (Doc. 1). On April 24, 2015, Respondent filed a response. (Doc. 10). On August 26, 2016, Petitioner filed a Reply. (Doc. 34). On April 6, 2017, Petitioner filed a motion for leave to amend his petition, along with a proposed amended petition including four proposed grounds for relief. (Docs. 44 & 45). Following briefing on the motion for leave to amend, on August 2, 2016, the undersigned entered a report and recommendation recommending that the motion for leave to amend be granted in part and denied in part. (Doc. 50). On August 25, 2017, the district court adopted the undersigned's recommendation and ordered that Petitioner could assert three grounds in the amended petition: (1) actual innocence, (2) ineffective assistance of counsel based on counsel's advice to Petitioner not to testify, and (3) ineffective assistance of counsel based on failure to investigate surveillance video of the crime scene. (Doc. 51). On September 22, 2017, Petitioner filed his First Amended Petition, in which he asserted those three grounds. (Doc 53). On December 6, 2017, Respondent filed a response. (Doc. 57 & 58).
Federal habeas review exists only "as `a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.'" Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). Accordingly, "[i]n the habeas setting, a federal court is bound by AEDPA [the Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28 U.S.C. § 2254). Under AEDPA, a federal court may not grant relief to a state prisoner with respect to any claim that was adjudicated on the merits in the state court proceedings unless the state court's adjudication of a 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 decision is "contrary to" clearly established Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision involves an "unreasonable application" of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002). "Finally, a state court decision involves an unreasonable determination of the facts in light of the evidence presented in the state court proceedings only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C. § 2254(e)(1)).
To preserve a claim for federal habeas review, a state prisoner must present that claim to the state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). "Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted." Id. The federal habeas court will consider a procedurally defaulted claim only "where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice." Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992) and Abdullah v. Groose, 75 F.3d 408, 41 (8th Cir. 1996) (en banc)). To demonstrate cause, a petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a petitioner must demonstrate that the claimed errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982). Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner must "`present new evidence that affirmatively demonstrates that he is innocent of the crime for which he was convicted.'" Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).
In Ground One, Petitioner asserts that his "right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution was violated when the trial court overruled his Motions for Judgment of Acquittal, failed to grant his Motion for New Trial, and in entering his judgment and sentence in that Petitioner is actually innocent of the crimes charged." 1stf Am. Pet'n, Doc. 53, at 4. In support of this claim, Petitioner asserts that his trial, appellate, and post-conviction counsel "failed to effectively present evidence through the testimony of witnesses and cross examination and conduct investigation that would have proved Petitioner's innocence." Id. Specifically, Petitioner alleges that although he repeatedly informed his trial counsel at what residence he had last seen the victim, and that although he informed trial counsel regarding his alibi, trial counsel failed to investigate the residence, failed to obtain cell phone or other records to establish his whereabouts, and failed to cross-examine the victim regarding his memory and other issues. Id.
As the undersigned previously noted in its report and recommendation on Petitioner's motion for leave to amend, the nature of the claim being asserted in Ground One is not entirely clear from the First Amended Petition. Although the first sentence of Ground One appears to indicate that it is an actual innocence claim, the other assertions in Ground One, viewed broadly, could relate to multiple claims, including actual innocence, insufficiency of the evidence, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and/or ineffective assistance of post-conviction counsel. However, in Petitioner's reply to the response to the motion for leave to amend, and again in Petitioner's reply to the response to the First Amended Petition, both filed through counsel, Petitioner made it clear that he is asserting a claim of actual innocence. Thus, the undersigned will treat this as a claim asserting actual innocence.
Respondent first argues that Ground One should be denied as untimely because it was filed outside the period specified in the statute of limitations and does not relate back to the date of the original petition. Respondent made the same argument in opposing Petitioner's Motion for Leave to Amend, and the undersigned analyzed that argument and rejected it, finding that the claim in Ground One did relate back to the original petition. The district court adopted the conclusions of the undersigned. Thus, this issue has already been resolved in Petitioner's favor, and Respondent's argument is without merit.
The undersigned next addresses the merits of this claim. In the habeas context, a claim of "actual innocence" may be either a "gateway claim," in which a petitioner asserts his actual innocence as a way to overcome procedural default of another claim, or a "freestanding claim," in which a petitioner asserts his actual innocence as an independent basis for habeas relief. See, e.g., Hayes v. Bowersox, No. 4:12-CV-224- JMB, 2016 WL 659081, at *15 (E.D. Mo. Feb. 18, 2016) (discussing both types of claims). It appears likely that Petitioner is likely attempting to assert a freestanding claim rather than a gateway claim. However, because he does not expressly state which type of claim he is asserting and does not cite any case law relevant to this claim, the undersigned considers both possibilities.
A "gateway claim" of actual innocence, which has long been recognized by the Supreme Court, permits a federal habeas court to address the merits of procedurally defaulted claims where a petitioner has proven that he is actually innocent of the crime of which he was convicted. See Schlup v. Delo, 513 U.S. 298, 324-28 (1995). See also Nash v. Russell, 807 F.3d 892, 898-99 (8th Cir. 2015); Burton v. Dormire, 295 F.3d 839, 846 (8th Cir. 2002). To establish a gateway claim of actual innocence, "a petitioner must satisfy a two-part test." Nash, 807 F.3d at 899 (citing Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001). First, "the `allegations of constitutional error must be supported with new reliable evidence not available at trial.'" Id. (quoting Amrine, 238 F.3d at 1029). Second, the petitioner must show that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. The Eighth Circuit has found that "evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence." Amrine, 238 F.3d at 1029; accord Nash, 807 F.2d at 899; Kidd v. Norman, 651 F.3d 947, 953 (8th Cir. 2011).
Although the gateway claim of actual innocence has long been recognized, the Supreme Court has "not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence." McQuiggins v. Perkins, 569 U.S. 383, 392 (2013) (citing Herrera v. Collins, 506 U.S. 389, 404-05 (1993)). The Eighth Circuit has recognized that "if the Supreme Court were to grant relief on this type of claim, `the threshold . . . would be extraordinarily high [and] would require more convincing proof than the gateway standard.'" Nash, 807 F.3d at 899 (quoting Dansby v. Hobbs, 766 F.3d 809, 816 (8th Cir. 2014)). "[O]n a freestanding claim of actual innocence, it is not sufficient that a petitioner shows even that it is `more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" Dansby, 766 F.3d at 816 (quoting Schlup, 513 U.S. at 327). "The `extraordinarily high' threshold, if recognized, would be even higher." Id. (quoting House v. Bell, 547 U.S. 518, 555 (2006). See also Hayes, 2016 WL 659081, at *15 ("Because Hayes cannot meet the gateway standard of actual innocence, he certainly cannot satisfy any possible freestanding standard that might be applied to his case."); Johnson v. Kelley, No. 5:15-CV-00138-KGB-JTR, 2016 WL 10519110, at *9 (E.D. Ark. Dec. 15, 2016) ("Johnson has failed to establish a gateway actual innocence claim. A fortiori, his freestanding actual innocence claim also fails."), report and recommendation adopted, 2017 WL 5180807 (E.D. Ark. Nov. 8, 2017).
Petitioner has not alleged the facts necessary to establish either a gateway claim of actual innocence or the more demanding freestanding actual innocence claim (even assuming the latter were recognized). Petitioner does not allege that he has discovered any new evidence of his innocence, nor does he allege that any of that evidence was not available at trial. Although Petitioner alleges that his trial counsel should have investigated "cellphone or other records to establish Petitioner's whereabouts" and should have investigated a residence where Petitioner had last seen the victim, he does not allege that he has any of this evidence now, that any of this evidence was not available at trial, or that any of this evidence could not have been discovered earlier through the exercise of due diligence. In addition, although he asserts that his trial counsel should have cross-examined the victim regarding the victim's memory or other issues, he does not allege the existence of any evidence that was not available at trial that would have enabled such cross-examination. Petitioner also has not shown that any of this evidence shows "that it is more likely than not that no reasonable juror would have convicted him" had such evidence been presented at trial. See Schlup, 513 U.S. at 327. Thus, Petitioner cannot establish actual innocence either as a gateway claim or a freestanding claim, and the undersigned recommends that Petitioner's actual innocence claim be denied.
In Ground Two, Petitioner asserts that his trial counsel was ineffective because his trial counsel encouraged Petitioner not to testify at trial. Petitioner asserts that he was a necessary witness in his own defense to show that he was not in fact the assailant, that he wanted to testify in his own defense, and that it was unreasonable to encourage him not to testify. Petitioner also argues that if he had been permitted to testify, the result in his case would have been different.
Both parties appear to presume that this claim was raised in state court and denied on the merits. However, a review of the record shows that the claim Petitioner raised in state court was different from the one raised here—it was not a claim that trial counsel made an unreasonable decision to encourage Petitioner not to testify, but instead was a claim that trial counsel failed and refused to prepare Petitioner to testify, thereby forcing Petitioner to involuntarily waive his right to testify and denying him his constitutional right to testify on his own behalf. In the interest of clarity and completeness, the undersigned will presume that Petitioner intends to raise both claims here and will address each separately.
The undersigned first considers the claim that Petitioner's trial counsel was ineffective because he failed and refused to prepare Petitioner to testify, thereby forcing Petitioner to involuntarily waive his right to testify and denying him his right to testify on his own behalf. This claim was raised in Petitioner's motion for post-conviction relief and in the appeal from the denial of that motion. See Resp't Ex. F, Doc. 10-6, at 12, 14-15; Resp't Ex. H, Doc. 10-8, at 14-17. The state courts considered that claim and denied it on the merits. Resp't F, Doc. 10-6, at 41-42; Resp't Ex. J, Doc. 10-10, at 3-4.
A criminal defendant has a federal constitutional right to testify on his or her own behalf at his or her trial. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). The defendant "has the ultimate authority to make certain fundamental decisions regarding the case, [including] whether to . . . testify in his or her own behalf." Jones v. Barnes, 463 U.S. 745, 751 (1983). "Because the right to testify is a fundamental constitutional guarantee, only the defendant is empowered to waive the right." United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987). A defendant's waiver of the right to testify must be made voluntarily and knowingly. Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998). See also Berkovitz v. Minnesota, 505 F.3d 827, 828 (8th Cir. 2007) ("Only the defendant may waive her right to testify, and the waiver must be made voluntarily and knowingly.").
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective assistance of counsel, Petitioner must show both that "[his] counsel's performance was deficient" and that "the deficient performance prejudiced [his] defense." Id. at 687; see also Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014). To show deficient performance, Petitioner must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "Judicial scrutiny of counsel's performance must be highly deferential," and Petitioner bears a heavy burden in overcoming "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and "might be considered sound trial strategy." Id. at 689 (citation and internal quotation marks omitted). To show prejudice, Petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
When an ineffective assistance claim has been addressed by the state court, the federal habeas court must bear in mind that "[t]aken together, AEDPA and Strickland establish a `doubly deferential standard' of review." Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (quoting Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). "So long as the state court's decision was not `contrary to' clearly established law, the remaining question under the `unreasonable application' clause of § 2254(d) is whether the state court's determination under the Strickland standard is unreasonable, not merely whether it is incorrect." Id. "This standard was meant to be difficult to meet, and even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (internal quotation marks omitted).
In denying Petitioner's claim that his trial counsel was ineffective because he refused to prepare Petitioner to testify at trial, thereby denying him his right to testify, the motion court stated:
Resp't Ex. F, Doc. 10-6, at 41-42. In reviewing this claim on appeal, the Missouri Court of Appeals stated:
Resp't Ex. J, Doc. 10-10, at 3-4.
The Missouri Court of Appeals' decision did not involve an unreasonable determination of the facts presented in state court, nor did it represent an unreasonable application of Strickland or any other federal law to the facts of this case. The record contains ample factual support for the state courts' conclusion that Petitioner's decision not to testify was made knowingly and voluntarily, rather than being a decision he was forced into based on his trial counsel's refusal to prepare him to testify. Specifically, the record shows that before the trial court, Petitioner unequivocally testified that his trial counsel had talked to him about the fact that he had the right to testify, that his trial counsel had given him his advice about the pros and cons of testifying and of remaining silent, that Petitioner understood the plusses and minuses of each choice, that Petitioner understood that the final decision was his, that Petitioner understood that he would make his decision based on what he thought was best for him, and that Petitioner chose to remain silent. Resp't Ex. M, Vol. 3, Doc. 57-5, at Tr. 419-22.
Consistent with the trial court record, Petitioner's trial counsel testified at the hearing before the motion court that he discussed with Petitioner any testimony he might give, that he told Petitioner it would be foolhardy to testify, that he did not recall Petitioner telling him he wanted to testify, that Petitioner was given the option to testify and did not want to, and that trial counsel was "wholeheartedly in agreement" with Petitioner's decision not to testify. Resp't Ex. G, Doc. 10-7, at 7-8. Although Petitioner testified at the hearing before the motion court that he wanted to testify but did not testify because his attorney did not prepare him, id. at 24, the state courts were not required to credit that testimony over the other evidence in the record showing that he chose not to testify based on the advice of his attorney, family, and friends. Cf. Winfield v. Roper, 460 F.3d 1026, 1035 (8th Cir. 2006) (denying ineffective assistance claim where the petitioner's assertion that he did not waive his right to testify was explored at an evidentiary hearing and the state court found counsel's testimony more credible than contrary evidence). The Missouri Court of Appeals also reasonably determined that Petitioner's trial counsel could not be found ineffective for failing to prepare a defendant to testify when that defendant had decided he did not want to testify.
In light of Petitioner's unequivocal testimony that he understood his right to testify and that the decision not to testify was his, it was not unreasonable for the state courts to deny Petitioner's claim that his trial counsel's failure to prepare him denied him his right to testify or that his trial counsel's failure to prepare him constituted deficient performance. See, e.g., Berkovitz v. Minnesota, 505 F.3d 827, 828 (8th Cir. 2007) (per curiam) (denying petitioner's claim that she was unduly influenced or coerced into waiving her right to testify by her counsel's conduct; finding her waiver was knowing and voluntary based on evidence that trial counsel had informed her of her right to testify, that the trial court made sure that she understood her right to testify, and that petitioner remained silent after her trial counsel rested); Sansoucie v. Wallace, No. 4:10-CV-2393-ACL, 2014 WL 2611802, at *4 (E.D. Mo. June 11, 2014) (state court reasonably found that trial counsel was not ineffective for failing to inform petitioner that it was his decision whether to testify in his defense, where the trial court advised petitioner of his right to testify and the petitioner testified during his trial that he understood his rights and decided not to testify after consulting with his attorneys); Blanchard v. Wallace, No. 4:12-CV-1269, 2014 WL 1648891, at *2 (E.D. Mo. Apr. 24, 2014) ("Petitioner's acknowledgment of his understanding of his right to testify evidences that he voluntarily waived this right at trial."); Liston v. Bowersox, No. 4:06-CV-0532-AGF, 2009 WL 539941, at *8 (E.D. Mo. Mar. 4, 2009) (denying petitioner's claim that his counsel was ineffective because his counsel coerced him into not testifying; reasoning that the trial court had ascertained on the record that petitioner understood he had the right to testify and made the voluntary decision not to do so, that petitioner admitted that his trial counsel had told him the decision was his, and that petitioner remained silent after defense counsel rested).
Petitioner argues that the state court decision rested on an unreasonable determination of the facts and misapprehended and ignored the true nature of the evidence involved, and that therefore the court should conduct a de novo review of this claim. Petitioner relies for this proposition on Taylor v. Maddox, 366 F.3d 992, 1006-08 (9th Cir. 2004), in which the Ninth Circuit set aside the state court's determination of the facts and made its own, after first finding that the state court had made an unreasonable determination of the facts because it failed to take into account key evidence in the record that was highly relevant to the petitioner's claim.
Taylor is inapplicable. Here, the state court did not fail to take into account key evidence in the record and did not otherwise make an unreasonable determination of the facts. The Missouri Court of Appeals did not ignore the key evidence on which Petitioner relied in support of his claim—his testimony at the evidentiary hearing that he did not testify because counsel failed to prepare him—but rather discussed that evidence expressly, along with other evidence regarding how and why Petitioner decided not to testify. The only specific error Petitioner identifies in the state court's ruling is that the Missouri Court of Appeals mischaracterized the motion court's decision when it stated, "the record supports the trial court's conclusion that Movant made the decision to testify based upon reasonable advice from counsel, and therefore, counsel could not be considered ineffective for failing to prepare Movant to testify following Movant's voluntary choice." Petitioner is correct that the motion court never actually made a finding that Petitioner's decision not to testify was based on "reasonable" advice of counsel, likely because that issue was not placed before it. However, the Missouri Court of Appeals' misstatement does not render its decision unreasonable, for two reasons. First, it does not appear that the Missouri Court of Appeals' statement about the reasonableness of counsel's advice not to testify was material to the denial of Petitioner's claim. Petitioner never argued to either the motion court or the appeals court that his trial counsel's advice that he not testify was unreasonable; instead, he argued only that because trial counsel refused to prepare him to testify, he was forced to waive his right to testify. The motion court and the Missouri Court of Appeals reasonably resolved that claim by finding that Petitioner himself made the decision not to testify voluntarily and knowingly, based on his counsel's advice, and that counsel could not be found ineffective for failing to prepare him to testify when he had voluntarily decided not to testify. Second, to the extent that the Missouri Court of Appeals' finding regarding the reasonableness of trial counsel's advice not to testify was material to its decision, that finding was reasonable and supported by the record, as discussed at length below in the undersigned's discussion of Ground 2B.
For all of the above reasons, the undersigned recommends that Ground 2A—the claim that trial counsel was ineffective because he failed and refused to prepare Petitioner to testify, thereby forcing Petitioner to involuntarily waive his right to testify and denying him his right to testify on his own behalf—be denied.
The undersigned next addresses Petitioner's claim that his trial counsel was ineffective because his trial counsel unreasonably encouraged Petitioner not to testify at trial, despite the fact that Petitioner was a necessary witness in his own defense and wanted to testify. Petitioner also argues that if he had testified, the result in his case would have been different. Petitioner does not specify precisely what testimony he would have offered had he testified at trial, nor does he explain how that testimony would have affected the outcome of the trial, except to say that he "was a necessary witness in his own defense to establish that he was not in fact the assailant." 1st Am. Pet'n, Doc. 53, at 5.
It appears likely that this claim has been procedurally defaulted, because Petitioner never presented to the state courts the issue of whether his trial counsel's advice that he not testify was reasonable. However, the question of procedural default is somewhat complicated, given Petitioner's raising of a closely related claim and the Missouri Court of Appeals' finding regarding the reasonableness of Petitioner's trial counsel's advice. Moreover, Respondent did not raise the issue of procedural default, and the Eighth Circuit has held that the district court should not sua sponte decide a case based on a procedural default without giving the parties fair notice and an opportunity to present their positions. See Dansby v. Hobbs, 766 F.3d 809, 824 (8th Cir. 2014); accord Deck v. Steele, No. 4:12-CV-1527-CDP, 2015 WL 5885968, at *2 (E.D. Mo. Oct. 8, 2015). The Eighth Circuit has recognized that "judicial economy sometimes dictates reaching the merits if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated." Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999). Because this claim is easily resolved against Petitioner on its merits, the undersigned need not reach the question of procedural default.
The undersigned will assume, for purposes of this analysis, that the state courts did not address this claim, and thus will not apply the deferential standards of AEDPA. See Taylor v. Bowersox, 329 F.3d 963, 968 (8th Cir. 2003) (AEDPA's deferential standards do not apply to claims not adjudicated on the merits by the state court). Even under a de novo review, the undersigned finds that Petitioner's claim is without merit.
As discussed above, in establishing deficient performance under the first prong of Strickland, Petitioner bears a heavy burden in overcoming "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and "might be considered sound trial strategy." Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted). "[C]ourts must resist the temptation to second-guess a lawyer's trial strategy; the lawyer makes choices based on the law as it appears at the time, the facts as disclosed in the proceedings to that point, and his best judgment as to the attitudes and sympathies of judge and jury." Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir. 1987). "Counsel may advise a defendant not to testify . . . as a matter of reasonable trial strategy." Deck v. Steele, 249 F.Supp.3d 991, 1031 (E.D. Mo. 2017) (citing Whitfield v. Bowersox, 324 F.3d 1009, 1016-17 (8th Cir. 2003)).
Petitioner has not overcome the presumption that his counsel's advice that he not testify was a reasonable trial strategy. Petitioner testified on the record that his trial counsel had given him his advice about the pros and cons of testifying and of remaining silent, and that Petitioner made the decision not to testify after hearing the opinions of his trial counsel and his family and friends. Resp't Ex. M, Vol. 3, Doc. 57-5, at Tr. 419-22; Resp't Ex. A, Doc. 10-1, at 13-16. Petitioner's trial counsel also testified at the hearing before the motion court that he had discussed with Petitioner any testimony he might give and that he told Petitioner it would be foolhardy to testify. Resp't Ex. G, Doc. 10-7, at 7-8. Although Petitioner's trial counsel did not specifically testify about why he gave that advice—likely because Petitioner did not raise that as an issue in the state court proceedings—Petitioner testified that he was aware that if he testified, his multiple prior convictions would be brought to the attention of the jury. Id. at 24.
The record also shows that, contrary to Petitioner's argument that his testimony was necessary to show that he was not the assailant, Petitioner's trial counsel was able to introduce Petitioner's alibi defense through other means: the testimony of Petitioner's son. Petitioner's son testified that at the time of the crime, Petitioner was visiting Petitioner's son's home in another area of town. See Resp't Ex. M., Vol. 3, Doc. 58-5, at Tr. 436-37. Given that evidence of Petitioner's alibi was introduced from this other source, his own testimony regarding his alibi would have been cumulative. The undersigned cannot say it was an unreasonable decision for his trial counsel to advise him not to testify where that testimony would have been cumulative, particularly given the potential for harm from the jury learning of his prior convictions. See Winfield v. Roper, 460 F.3d 1026, 1033 (8th Cir. 2006) (counsel was not ineffective for failing to introduce testimony that "would have been cumulative to that which was introduced"). Thus, Petitioner cannot establish the first prong of Strickland, and the undersigned recommends that this claim be denied.
The undersigned also finds that Petitioner cannot establish the second prong of Strickland (prejudice), because he cannot show that but for counsel's advice that he not testify, the result of the proceeding would have been different. As discussed above, evidence of Petitioner's alibi was introduced at trial, so to the extent that Petitioner would have offered testimony about his whereabouts at the time of the crime, that testimony would have been cumulative. Petitioner's trial counsel's decision not to introduce this cumulative evidence did not constitute prejudice under Strickland. See Washington v. Kemna, 16 F. App'x 528, 530 (8th Cir. 2001) (petitioner failed to show prejudice under Strickland from trial counsel's failure to advise petitioner of his right to testify where "[petitioner's] testimony would have merely reiterated the alibi defense already provided through the trial testimony of his mother"); Blanchard v. Wallace, No. 4:12-CV-1269-CEJ, 2014 WL 1648891, at *3 (E.D. Mo. Apr. 24, 2014) (petitioner failed to show prejudice under Strickland based on attorney's failure to call petitioner as a witness where "petitioner's testimony would have been cumulative of evidence already in the record"). Notably, Petitioner does not identify any other testimony he would have given had he testified, nor does he explain how his testimony might have changed the outcome of the trial.
For all of the above reasons, the undersigned recommends that Ground 2B—the claim that Petitioner's trial counsel was ineffective because his trial counsel unreasonably encouraged Petitioner not to testify at trial—be denied.
In his final ground for relief, Petitioner asserts that his trial counsel rendered ineffective assistance because he failed to conduct sufficient investigation to secure a DVD containing a surveillance video of the crime scene. This claim was raised in Petitioner's amended motion for postconviction relief and in the appeal from the denial of that motion, and the Missouri Court of Appeals denied the claim on the merits. Resp't Ex. G, Doc. 10-7, at 12-13; Resp't Ex. J, Doc. 10-10, at 4-5.
In reviewing the claim on appeal, after noting the applicable Strickland standards, the Missouri Court of Appeals stated:
Id. at 2-5.
As discussed above, to show ineffective assistance of counsel, Petitioner must show both that "[his] counsel's performance was deficient" and that "the deficient performance prejudiced [his] defense." Strickland, 466 U.S. at 687. In addition, because this ineffective assistance claim has been addressed by the state court, this Court must apply a "doubly deferential" standard of review. Williams, 695 F.3d at 831.
Petitioner has not shown that the decision of the Missouri Court of Appeals was contrary to federal law, resulted from an unreasonable determination of the facts, or involved applying Strickland to the facts of this case in an unreasonable manner. The Missouri Court of Appeals set forth the two-pronged Strickland test in its decision, and although its decision could have been clearer, it appears that the Missouri Court of Appeals' decision rested on a finding that Petitioner could not establish the second prong of Strickland (prejudice), because Petitioner had not shown any evidence that the DVD existed or that it contained evidence that would have aided his case.
As the state court reasonably found, Petitioner did not present any evidence that the DVD— if it even existed at all—contained any evidence that would have aided in Petitioner's defense. Petitioner offered nothing other than speculation that it would have contained exculpatory evidence. Thus, he did not show a reasonable probability that the outcome of the trial would have been different had trial counsel conducted additional investigation into the existence of the DVD, and the second prong of Strickland is not satisfied.
Petitioner argues that the Missouri Court of Appeals' decision is contrary to Supreme Court precedent, because the Missouri Court of Appeals found that Petitioner was required to produce the DVD, a condition not present in the Strickland test. This argument is without merit. The Missouri Court of Appeals did not require Petitioner to produce the actual DVD in order to prevail on his claim. Instead, it pointed out that Petitioner could not prevail because he "failed to present any evidence at the hearing to prove the DVD actually existed" and "did not present any evidence that if the DVD did exist that it contained evidence that would have aided his defense." Resp't Ex. J, Doc. 10-10, at 5. This is entirely consistent with Strickland's requirement that a Petitioner show a "reasonable probability that . . . the result of the proceeding would have been different" absent counsel's alleged error. It is also consistent with the above-cited Eighth Circuit cases requiring a petitioner to offer more than mere speculation that evidence not found by trial counsel would have changed the outcome of the trial. Because the state court reasonably found that Petitioner could not establish the second prong of Strickland, this claim is without merit.
Petitioner states in his petition that he "requests an evidentiary hearing on all of his claims for relief," but he provides no argument for why he is entitled to such a hearing. With regard to the claims that were addressed on the merits by the state court (Ground 2A and Ground 3) this Court's review of the claim is limited to the record that was before the state court. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("[R]eview under [28 U.S.C.] § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."); 28 U.S.C. § 2254(d)(2) (providing that a claim shall not be granted unless the adjudication of the claim "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") (emphasis added). Thus, no evidentiary hearing is permitted with respect to those claims.
To the extent that Petitioner is asserting claims that were not adjudicated on the merits in state court—Grounds 1 and Ground 2B—Petitioner has also failed to establish that a hearing is permitted or warranted. Under 28 U.S.C. § 2254(e)(2), where a petitioner has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that:
Petitioner plainly failed to develop the factual basis of both his actual innocence claim and his claim that his trial counsel was ineffective in advising him not to testify, as he made no attempt to raise these claims before the state court. See Williams v. Taylor, 529 U.S. 420, 437 (2000) ("For state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record and presenting, if possible, all claims of constitutional error. If the prisoner fails to do so, himself or herself contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court, unless the statute's other stringent requirements are met. Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.").
Petitioner does not allege that any of his claims relies on a new rule of constitutional law, nor does he make any attempt to show that any of his claims relies on a factual predicate that could not have been previously discovered through the exercise of due diligence. Petitioner's actual innocence claim in Ground 1 rests on his assertion that his counsel was aware of evidence that trial counsel should have used to prove Petitioner's innocence, and the petition makes it clear that the facts underlying that claim all could have been discovered through the exercise of due diligence at trial, on appeal, and/or in post-conviction proceedings. The claim in Ground 2B—that Petitioner's trial counsel was ineffective failing for unreasonably advising Petitioner not to testify—also relies on facts that were, or could have been discovered, at trial or in post-conviction proceedings.
For all of the above reasons, the request for an evidentiary hearing is denied.
For all of the above reasons, the undersigned recommends that Petitioner is not entitled to relief on any of his claims and finds that his request for an evidentiary hearing should be denied. Accordingly,
The parties are advised that they have fourteen (14) days to file written objections to this Order and Report and Recommendation. Failure to timely file objections may result in waiver of the right to appeal questions of fact. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
