GREG KAYS, District Judge.
Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center in Cameron, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 convictions and sentences for second degree felony murder and second degree assault, which were entered in the Circuit Court of Boone County, Missouri, on a change of venue from Greene County, Missouri. Petitioner's conviction and sentence was affirmed on direct appeal. State v. Bolden, 330 S.W.3d 868 (Mo. Ct. App. 2011). Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15, the denial of which was affirmed on appeal thereof. Bolden v. State, 413 S.W.3d 658 (Mo. Ct. App. 2013).
Petitioner currently raises two (2) grounds for relief: (1) his conviction violates the Due Process Clause because Mo. Rev. Stat. § 565.082 does not give adequate and fair notice that petitioner's assault on hospital staff Ruby constituted an attack on emergency personnel in violation of the state criminal law; and (2) his convictions of both felony murder and second degree assault violate the "merger doctrine" because petitioner's act of kicking the victim in the head, which formed the basis for the assault, was the same act that caused the victim's death, which merged into the homicide. Doc. No. 1, pp. 16, 18.
Respondent argues that the factual bases for petitioner's claims were available at the time of trial and discoverable through the exercise of due diligence and that petitioner procedurally defaulted the two above grounds for relief because they are not the same legal arguments that petitioner raised in the state courts on either direct appeal or in his post-conviction proceeding. Moreover, petitioner also failed to raise such claims in his post-conviction appeal. Respondent also argues that petitioner cannot overcome his state procedural default because petitioner has failed to show actual cause for and prejudice resulting from his default or that he is actually innocent. Doc. No. 9, pp. 5-8.
In affirming petitioner's convictions and sentences, the Missouri Court of Appeals set forth the following facts:
Bolden v. State, 413 S.W. 3d at 659-60.
"A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim." Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996). "In order to present a habeas claim to the state court, a prisoner must `fairly represent' not only the facts, but also the substance of his federal habeas corpus claim." Barrett v. Acevedo, 169 F.3d 1155 (8th Cir. 1999) (citing Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996), cert. denied, 517 U.S. 1215 (1996)), cert. denied, 528 U.S. 846 (1999). "If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default." Sloan at 1381.
A review of petitioner's direct appeal brief reveals that petitioner did not raise any of his present claims on direct appeal, where such claims should have been raised. Respondent's Exhibit C, pp. 14-16. Rather, petitioner raised the following grounds for relief in his appeal brief from the denial of his Rule 29.15 motion: (1) trial counsel was ineffective for failing to move to dismiss Count Two (second degree assault of emergency personnel) because the victim Ruby was not "emergency personnel" within the meaning of Section 565.082.2, which prejudiced petitioner because there was a reasonable probability that, without the second degree assault charge, there would have been no underlying felony to support the felony murder charge; and (2) appellate counsel was ineffective for failing to argue that the trial court erred in submitting the second degree assault charge to the jury and in entering judgment and sentence because it deprived petitioner of due process in that the victim was merely a hospital security guard rather than "emergency personnel" as required by Section 565.082.2. Respondent's Exhibit H, pp. 13, 15.
Based on the above review of petitioner's claims as presented in his direct appeal and in his Rule 29.15 motion and appeal from denial thereof, petitioner procedurally defaulted his current Ground 1 because he did not "fairly present" the same due process claims he raises in this Court to the state courts. See Barrett, 169 F.3d at 1161-62 (recognizing that presenting a state claim that is merely similar to the federal habeas corpus claim is not sufficient to satisfy the fairly presented requirement). Although petitioner raised ineffective assistance of trial counsel for failing to argue that the victim did not fall within the statutory definition of "emergency personnel" in his Rule 29.15 proceedings, petitioner did not raise a claim that Section 565.082 violated his due process rights as he currently asserts in Ground 1 in this federal habeas proceeding. Moreover, petitioner procedurally defaulted his current Ground 2 because he never raised a claim that his convictions for both felony murder and second-degree assault violated the "merger doctrine" in any of his state court proceedings.
A federal court may not review procedurally defaulted claims "unless the prisoner 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." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner admits in his reply to respondent's response (Doc. No. 21, p. 8), that he did not raise his statutory due process and "merger doctrine" claims in his direct appeal. Petitioner generally states, however, that he raised the ineffectiveness of trial and appellate counsel in his motion for post-conviction relief filed pursuant to Rule 29.15. Petitioner argues that he cited to the Due Process Clause in his Rule 29.15 brief and that his ineffective assistance of counsel claims in his Rule 29.15 motion are "modest modifications of legal theories" that "do not run afoul of exhaustion requirement so long as such variation does not change the ultimate question" as allowed in King v. Kemna, 266 F. 3d 3d 826 (8th Cir. 2001)(Heaney, J. dissenting), and "did not change the ultimate question of whether Section 565.082 was applied to petitioners [sic] unconstitutionally." Doc. No. 21, p. 7. Therefore, petitioner argues that he "did all he could do to present his claims in a fair and timely manner. . . ." Doc. No. 21, p. 8.
The King case petitioner cites does not change the fact that petitioner did not present the same legal claims to the state courts as he presents in his federal petition, see Sweet v. Delo, 125 F.3d 1144, 1149 n. 12 (8th Cir. 1997), and that his trial and appellate counsel were not ineffective for failing to raise such claims in the state courts. "In order for ineffective assistance of counsel to itself be cause to excuse a procedural default, the ineffective assistance must rise to the level of an independent constitutional violation." Evans v. Luebbers, 371 F.3d 438, 445 (8th Cir. 2004) (citing Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). "Thus, the assistance rendered must have been constitutionally substandard and prejudice must have resulted therefrom." Evans, 371 F.3d at 445 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
In ruling on petitioner's appeal from the denial of Rule 29.15 relief, the Missouri Court of Appeals, Western District, cited to the Strickland standard and set forth the wording of the statute petitioner challenges:
Section 565.082.1(2) provides:
Respondent's Exhibit J, pp. 6-7.
The state appellate court described the testimony of petitioner's trial counsel and appellate counsel at the Rule 29.15 post-conviction hearing, stating that neither of them believed there was merit to an argument that the victim was not "emergency personnel" as defined in Section 565.082.2. Respondent's Exhibit J, p. 7. Then, the state appellate court proceeded to state the reasons why it agreed with the state motion court's findings and conclusions that Ruby (the victim) was "emergency personnel" within the plain meaning of Section 565.082.2 and that
Respondent's Exhibit J, p. 12.
This Court concludes that petitioner has failed to demonstrate legally sufficient cause for and actual prejudice resulting from his state procedural default of Ground 1 because he has failed to show that either trial counsel or direct appeal counsel were constitutionally ineffective under Strickland, supra, for the reasons discussed by the state courts. As to Ground 2, petitioner has failed to state any cause for his state procedural default thereof or demonstrate actual prejudice resulting from therefrom.
Petitioner also has failed to show that a fundamental miscarriage of justice will result if his defaulted claims are not considered. See Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006) (petitioner must present new evidence that affirmatively demonstrates that he is actually innocent of the crime for which he was convicted in order to fit within the fundamental miscarriage of justice exception), cert. denied, 549 U.S. 1036 (2006).
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only "where a petitioner has made a substantial showing of the denial of a constitutional right." To satisfy this standard, a petitioner must show that a "reasonable jurist" would find the district court ruling on the constitutional claim(s) "debatable or wrong." Tennard v. Dretke, 542 U.S. 274, 276 (2004). Because petitioner has not met this standard, a certificate of appealability will be denied. See 28 U.S.C. § 2254, Rule 11(a).
Accordingly, it is
