JEAN C. HAMILTON, District Judge.
This matter is before the Court on Edward Smith's pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. (Petition, ECF No. 1.) Respondent has filed a Response (ECF No. 7), and the Petition is now ready for disposition.
In January 2009, Petitioner pled guilty to one count of stealing property valued at over $500. The Circuit Court of St. Louis City, Missouri determined that Petitioner was a prior and persistent offender, and sentenced him to seven years in prison. In June 2009, Petitioner moved for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035, and he was appointed counsel. His counsel thereafter filed an amended motion, which was denied without an evidentiary hearing. The Missouri Court of Appeals reversed and remanded for an evidentiary hearing. Following a December 2011 evidentiary hearing, the motion court denied Petitioner's request for post-conviction relief, and the appeals court affirmed. (Petition at 1-14; Pet. Exs., ECF No. 1.2 at 21-34, 43-46; Resp. Exs. A-D, ECF No. 7.1.)
Petitioner was incarcerated for the instant offense at the Missouri Eastern Correctional Center.
(Petition at 5-11.) Petitioner presented only Grounds 1 through 3 to the state courts. Id.
"Ordinarily, a federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules." Arnold v. Dormire, 675 F.3d 1082, 1086-87 (8th Cir. 2012) (quotation and citations omitted). "In Missouri, a claim must be presented at each step of the judicial process in order to avoid default." Id. (quotations and citations omitted). "A section 2254 applicant's failure to raise a claim in state post-conviction proceedings results in procedural default on that claim." Lyon v. Luebbers, 403 F.3d 585, 593 (8th Cir. 2005) (citation omitted). To avoid defaulting on a claim, a petitioner must have "fairly presented the substance of the claim to the state courts ... thereby affording such courts fair opportunity to apply controlling legal principles to the facts bearing upon [the] claim" Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotations and citations omitted). "A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts which he is attempting to raise in his federal habeas petition." Id. at 1021 (quotations and citations omitted).
"When a habeas petitioner defaults his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of his claims is barred unless he `can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.'" Morgan v. Javois, 744 F.3d 535, 538 (8th Cir. 2013) (quoting Coleman v. Thompson, 501 U.S. 722, 750-51 (1991)). To establish "cause" for the default, a petitioner generally must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Arnold, 675 F.3d at 1087 (cause must be something external and not fairly attributable to petitioner). To establish actual prejudice, the petitioner "must show that the errors of which he complains `worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
In Ground 4 of his Petition Petitioner asserts, "Prosector's [sic] withheld (suppressed) the line-up photographs, that would have proven the white male in my line-up." (Petition at 10.) Upon review of the record, the Court finds that Petitioner failed to exhaust this claim in the state courts, as he did not raise it in his amended Rule 24.035 motion. Therefore, he is procedurally barred from pursuing it here. The Court also finds that Petitioner has not shown cause for his failure to raise the claim. Although Petitioner indicates in his Petition that his post-conviction attorney failed to raise the claim (Petition at 11), it is "well established" that generally ineffective assistance of counsel during state post-conviction proceedings cannot serve as cause to excuse factual or procedural default. Wooten v. Norris, 578 F.3d 767, 778 (8th Cir. 2009) (citations omitted); see also Maples v. Thomas, 132 S.Ct. 912, 922 (2012) (under only very limited and extraordinary circumstances can conduct of post-conviction counsel constitute "cause" for procedural default—namely, where counsel abandons petitioner; counsel's negligence does not qualify as cause).
"In the habeas setting, a federal court is bound by the [Anti-Terrorism and Effective Death Penalty Act of 1996 (`AEDPA')] 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 the AEDPA, a federal court may not grant relief to a state prisoner unless the state court's adjudication of a claim:
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." Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted). If the state court's decision is not "contrary to" clearly established law, the remaining question is whether the state court's determination was "unreasonable." Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012). This standard is "difficult to meet, and even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (quotation and citation omitted). "[A] state court's decision involves an unreasonable application of Supreme Court precedent when the state court 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 either unreasonably extends a legal principle from [Supreme Court] 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." Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001) (quotations and citation omitted). "Federal habeas relief is warranted only when the refusal was objectively unreasonable, not when it was merely erroneous or incorrect." Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (quotation and citation omitted).
A state court's 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." Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004) (quotation and citation omitted). "[A] determination of a factual issue made by a State court shall be presumed to be correct," unless the petitioner rebuts the determination with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The deference owed by a federal habeas court to a state court's findings of fact includes deference to state court credibility determinations, Smulls v. Roper, 535 F.3d 853, 864 (8th Cir. 2008) (en banc), and to "[a] state court's findings of fact made in the course of deciding an ineffective assistance of counsel claim," Odem v. Hopkins, 382 F.3d 846, 849 (8th Cir. 2004). Moreover, the presumption of correctness of findings of fact applies to the factual determinations made by a state court at either the trial or appellate levels. See Smulls, 535 F.3d at 864-65.
To establish a claim of ineffective assistance of counsel, a petitioner must satisfy the twopart test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, under the "performance" component, the petitioner must show that his counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed [him] by the Sixth Amendment." Id. at 687. Judicial scrutiny of counsel's performance is "highly deferential," and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Second, under the "prejudice" component, the movant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding," as "not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding." Id. at 693.
In Ground 1 of his Petition Petitioner claims that he received ineffective assistance of counsel, in that plea counsel falsely told him that he would only have to serve 37 percent of a seven-year sentence if he pled guilty. Petitioner raised this claim in his amended Rule 24.035 motion.
Following the post-conviction evidentiary hearing—at which Petitioner, Petitioner's sister, and plea counsel testified—the motion court made the following findings of fact:
(Resp. Ex. C, ECF No. 7.1 at 7-9) (quotation omitted). The motion court denied Petitioner's claim, based upon the following conclusions of law:
Id. at 10.
Petitioner advanced this claim on appeal, and the Missouri Court of Appeals affirmed the motion court's findings as follows:
(Resp. Ex. D, ECF No. 7.1 at 17-18) (citation omitted).
Upon review of the record, the Court finds that the state courts' holdings with regard to this claim were neither contrary to, nor unreasonable applications of, clearly established federal law, and that they were not based upon unreasonable determinations of fact. Therefore, Ground 1 is denied.
In Ground 2 of his Petition Petitioner claims that he received ineffective assistance of counsel, in that his plea counsel failed to investigate witnesses. Petitioner raised this claim in his amended Rule 24.035 motion; specifically, Petitioner asserted that plea counsel failed to locate his sister and call her as a witness.
Following the post-conviction evidentiary hearing, the motion court made the following findings of fact, in addition to the aforementioned in Ground 1:
(Resp. Ex. C, ECF No. 7.1 at 8-9). The motion court denied Petitioner's claim, based upon the following conclusions of law:
Id. at 11.
Petitioner advanced this claim on appeal, and the Missouri Court of Appeals affirmed the motion court's findings as follows:
(Resp. Ex. D, ECF No. 7.1 at 20.)
Upon review of the record, the Court finds that the state courts' holdings with regard to this claim were neither contrary to, nor unreasonable applications of, clearly established federal law, and that they were not based upon unreasonable determinations of fact. Therefore, Ground 2 is denied.
In Ground 3 of his Petition Petitioner claims that he received ineffective assistance of counsel, in that plea counsel failed to file a motion to suppress the line-up. Petitioner raised this claim in his amended Rule 24.035 motion.
Following the post-conviction evidentiary hearing, the motion court made the following finding of fact, in addition to the aforementioned findings in Grounds 1 and 2:
(Resp. Ex. C, ECF No. 7.1 at 9.) The motion court denied Petitioner's claim based upon the following conclusions of law:
Id. at 11-12.
Petitioner advanced this claim on appeal, and the Missouri Court of Appeals affirmed the motion court's findings as follows:
(Resp. Ex. D, ECF No. 7.1 at 22.)
Upon review of the record, the Court finds that the state courts' holdings with regard to this claim were neither contrary to, nor unreasonable applications of, clearly established federal law, and that they were not based upon unreasonable determinations of fact. Therefore, Ground 3 is denied.
Accordingly,
