CAROL E. JACKSON, District Judge.
This matter is before the Court on the petition of Donald Church for a writ of habeas corpus pursuant to 28 U.S.C. §2254. Respondent has filed a response in opposition. Petitioner has not filed a reply, and the time allotted to do so has expired.
Petitioner Donald Church is currently incarcerated at the Crossroads Correctional Center located in Cameron, Missouri, pursuant to the sentence and judgment of the Circuit Court of the City of St. Louis. On October 22, 2008, a jury found petitioner guilty of one count of forcible rape, two counts of forcible sodomy, one count of kidnapping, one count of first-degree robbery, and five counts of armed criminal action. Resp. Ex. A. On December 19, 2008, petitioner was sentenced as a persistent sexual offender to consecutive terms of imprisonment on all charges, resulting in an aggregate term of life imprisonment.
The Missouri Court of Appeals affirmed petitioner's convictions on December 8, 2009. Resp. Ex. E;
In the instant § 2254 petition, petitioner asserts nine grounds for relief: (1) that his trial counsel was ineffective for failing to call Terrell Gholson as a witness; (2) that the trial court erred in denying his motion for a mistrial when the prosecutor, in closing argument, alluded to the fact that petitioner did not testify in his own defense; (3) that the trial court erred in denying his motion for mistrial when a juror disclosed that he was personally acquainted with a witness for the prosecution; (4) that the trial court abused its discretion by admitting testimony about the CODIS DNA match because such testimony implied that petitioner had a prior criminal record; (5) that the prosecutor engaged in improper personalization during closing argument; (6) that evidence should have been excluded because it was the product of an unlawful search and seizure; (7) that the trial court's determination that petitioner should be sentenced as a persistent sexual offender was improper; (8) that the trial court erred in allowing the prosecutor to argue that the victim was happy and healthy prior to the crime; and (9) that the trial court improperly admitted bolstering evidence.
At approximately 11:00 p.m. on February 12, 2007, Nicholas Althoff was walking to his apartment building when petitioner approached him and asked where he could find a woman. Althoff told petitioner to try a bar, but petitioner said, "that's not what I mean, I'm looking for a woman." Althoff left petitioner, went into his apartment building, and told his female friends to be careful on their way home, because there was a strange man outside.
Meanwhile, N.S., who lived with her boyfriend in an apartment across the street from Althoff's apartment, arrived home around 11:00 p.m. When she reached the second floor of her building, petitioner approached her and asked if she had any money. When she said no, petitioner showed her a gun. She gave him money, and he told her that he needed a ride somewhere. N.S. tried to give petitioner her car keys, but he insisted that she come with him.
N.S. drove petitioner as he directed her. Petitioner had N.S. stop the car in multiple places. He forced N.S. to smoke crack cocaine, threatened to kill N.S. when she tried to avoid inhaling the crack because she was pregnant, and eventually forced N.S. to strip to her underwear. He hit her on the head with the gun when she did not undress quickly enough. Petitioner had N.S. perform oral sex on him, holding her head down to his penis with one hand and holding the gun in the other. Petitioner put his hand and then his penis into her vagina. After petitioner ejaculated, N.S. asked to go home and promised that she would not tell anyone about the rape. Petitioner let N.S. go, but said that if N.S. told anyone about what happened, he would have his "boys" hurt her. As N.S. drove home, she called her boyfriend and told him to call the police because she had been raped. N.S. was crying when she arrived home. The police took N.S. to the hospital, where a rape kit was collected.
On February 14, 2007, police officers pulled over a vehicle for a traffic violation. Petitioner was the driver, and a gun was in the car. The officers arrested petitioner for unlawful use of a weapon. A week later, the officers received a CODIS DNA hit, matching petitioner's DNA to that gathered from N.S.'s rape kit. N.S. identified petitioner from a photo lineup as the man who raped her, and Althoff identified petitioner as the man he had seen on the night of the rape. N.S. also identified the gun found in petitioner's car as the one used during the kidnapping and rape. Petitioner's fingerprints matched those found on the handle of N.S.'s car, and his seminal fluid was found on the rear passenger seat and floor mat, on N.S.'s underwear, and on a swab from N.S.'s buttocks.
Federal courts may not grant habeas relief on a claim that has been decided on the merits in state court unless that adjudication:
28 U.S.C. § 2254 (d)(1)-(2).
A state court's decision is "contrary to" clearly established law if "it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result."
A decision involves an "unreasonable application" of clearly established law if "the state court applies [the Supreme Court's] precedents to the facts in an objectively unreasonable manner,"
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. 28 U.S.C. § 2254(e)(1);
Petitioner claims that his trial counsel was ineffective for failing to call Terrell Gholson to testify. He argues that Gholson's testimony would have supported his defense that the sexual encounter with N.S. was consensual.
In order to state a claim of ineffective assistance of trial counsel, petitioner must meet the
To determine if a defendant was prejudiced by the failure of counsel to call a witness, a court adds that witness's proffered testimony to the evidence that was before the jury, and determines what the likely outcome of the trial would have been, based on the totality of the evidence.
Petitioner raised his claim of ineffective assistance in his amended post-conviction motion, and the state court held an evidentiary hearing at which petitioner, petitioner's trial counsel, and Gholson testified. Resp. Ex. J. Trial counsel testified that he attempted to contact Gholson on several occasions without success. Gholson arrived at trial during the prosecution's case in chief, and counsel spoke with him and asked him to return the next day, but did not subpoena him. Gholson did not return to court the next day.
At the time of the motion hearing, Gholson was being detained in the St. Louis County jail on a "Federal hold." He testified to having convictions for drug trafficking, drug possession, and unlawful use of a weapon. He stated that he once lived in the same apartment building as N.S. and that he sold drugs to her. He claimed that N.S. offered him sexual favors in exchange for drugs, but he declined. He testified that he introduced petitioner and N.S., and saw N.S. and petitioner go to the basement of the apartment building to smoke crack together. On the night of the rape, petitioner told Gholson that N.S. was going to drive him somewhere. Finally, Gholson explained that when he arrived at petitioner's trial, he gave petitioner's counsel his cell phone number. He thought that counsel would call his phone if he had to testify, but counsel never did. Resp. Ex. J.
The motion court denied petitioner's claim. That court reasonably determined that Gholson was not a credible witness, and even if he was, his proposed testimony would not have resulted in a different outcome. Considering Althoff's testimony regarding petitioner's behavior shortly before the rape, N.S.'s testimony regarding her experience that night, the accounts of N.S.'s demeanor after the rape from police officers and N.S.'s boyfriend, and the physical evidence, this Court agrees that there is no reasonable probability that the proposed testimony of Gholson might have altered the outcome of the trial. The state court's determination that petitioner was not prejudiced by counsel's failure to call Gholson was reasonable. Petitioner is not entitled to relief on this ground.
Petitioner argues that the trial court erred in denying his motion for a mistrial based on improper closing argument by the prosecutor.
The Fifth Amendment proscription against compulsory self-incrimination prevents a prosecutor from directly commenting on a defendant's failure to testify.
The Missouri Court of Appeals concluded that the challenged statements, viewed in context, referred to the lack of evidence supporting petitioner's defense and not to his failure to testify. "In general, the government may comment on the failure of the defense, as opposed to the defendant, to counter or explain the evidence [unless] the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."
Petitioner contends that the trial court's failure to declare a mistrial after Juror 1204 disclosed that he was acquainted with a witness deprived him of a fair trial by an impartial jury.
After the prosecution rested its case, Juror 1204 told the deputy that he recognized one of the State's witnesses, a lab analyst named Jenna Oakes-Smith. The juror was brought before the court, and explained that he knew Oakes-Smith from volleyball and soccer. During voir dire, the juror stated that he knew someone named Jenna, but he did not know her last name. Consequently, the juror did not respond when Oakes-Smith's name was mentioned as a potential witness. The juror stated that his relationship with Oakes-Smith would not affect his ability to decide the case based on the evidence, and the court instructed the juror to return to the jury room and say nothing to the other jurors. The defense later moved for a mistrial because Juror 1204 had an opportunity to talk to other jurors and taint the jury with his knowledge of the witness. The court denied the motion but "in an abundance of caution" removed Juror 1204 from the jury and replaced him with an alternate juror. Resp. Ex. A at 491-93; 505.
The Sixth and Fourteenth Amendments guarantee the right to an impartial jury.
Petitioner argues that the trial court abused its discretion by admitting testimony about the CODIS DNA match because the testimony implied that petitioner had a criminal history.
Admissibility of evidence is generally a matter of state law, and claims of error of state law are not cognizable in federal habeas proceedings.
Petitioner argues that the prosecutor engaged in improper personalization during closing argument. "Improper argument violates due process when the argument is so egregious that it renders the entire trial fundamentally unfair."
During summation, the prosecutor stated:
Resp. Ex. A at 518-19. The Missouri Court of Appeals determined that the argument was not improper, because the prosecutor did not ask the jurors to put themselves in the place of the victim, but rather to consider what the victim was thinking in order to emphasize that the encounter was non-consensual. Resp. Ex. E. Petitioner has not shown the argument to be improper personalization, and certainly has not shown that the argument rises to the level of a due process violation. Thus, petitioner is not entitled to relief on this ground.
Petitioner's remaining claims were raised in his motion for a new trial (which was denied), but not on direct appeal. Resp. Ex. C. Under Missouri law, when a defendant fails to brief or argue points raised in a motion for a new trial again on direct appeal, those points are deemed waived.
In order to overcome procedural default, petitioner must show cause and prejudice or actual innocence.
Because petitioner's remaining claims are procedurally defaulted, and he has not shown cause and prejudice or actual innocence, the Court will not address these claims on the merits.
For the reasons discussed above, the Court finds that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly established federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability.
A separate judgment in accordance with this Memorandum will be entered this same date.
