CAROL E. JACKSON, District Judge.
This matter is before the Court on the petition of Donald A. Byrd for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner Donald Byrd is presently incarcerated at the Jefferson City Correctional Center pursuant to the sentence and judgment of the Circuit Court of Pemiscot County, Missouri. On February 8, 2007, a jury found petitioner guilty of four counts of first-degree statutory sodomy, in violation of Mo.Rev.Stat. § 566.062.
Petitioner filed a timely motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which the post-conviction court denied following an evidentiary hearing. On December 30, 2010, the Missouri Court of Appeals affirmed the denial of post-conviction relief.
On March 19, 2005, 10-year-old S.W. told her mother ("Ms. Byrd") that she had been molested by petitioner, her stepfather with whom she had lived since she was two months old. Ms. Byrd called the police. Ann Cutler, an investigator with the Children's Division of the Missouri Department of Social Services, interviewed S.W. later that day. S.W. told Ms. Cutler that she had been molested by petitioner on three or four occasions. Tr. 282-83. She also said that petitioner told her that she would be sent away if she told anyone. Tr. 284.
Ms. Cutler scheduled a forensic examination to take place on March 28, 2005. In the meantime, Ms. Byrd and her children went to stay with Jessica Smith, Ms. Byrd's cousin, who was married to petitioner's brother. Ms. Smith testified at trial that she had a private conversation with S.W. in which she told her that she needed to "tell the truth" so that her mother would feel better. Tr. 393-95. After this conversation, Ms. Smith told Ms. Byrd that S.W. said petitioner had not molested her. Tr. 263. Ms. Smith accompanied S.W. and her mother to the scheduled forensic examination.
The examination was conducted by Katherine Blevins, a nurse practitioner with extensive experience in conducting forensic examinations of children and adults who have been sexually abused. Tr. 293. As part of the evaluation, Ms. Blevins completed a physical examination of S.W., during which she found no physical evidence of sexual abuse. Ms. Blevins testified, however, that "physical findings" of sexual abuse are found in fewer than 5% sexually-abused children. Tr. 309. Ms. Blevins also conducted two videotaped interviews with S.W., which were played for the jury. The videotapes showed S.W. using anatomical drawings to describe a number of sexual activities petitioner had engaged in with her. Tr. 315-16. At some point, however, S.W. told Ms. Blevins that she had made the story up. Tr. 325 ("She said that she had told a lie about her daddy . . . Donald."). Ms. Blevins testified that it is not unusual for victims to recant. Based on S.W.'s initial statements and body language, Ms. Blevins believed S.W. had been molested by petitioner. Tr. 326-28.
A few days after the forensic evaluation, S.W. told her classroom teacher she wanted to speak with the school guidance counselor, Carolyn Hayes. S.W. told Ms. Hayes that petitioner had abused her. She also said that Jessica Smith pressured her to recant. Tr. 343-44 (S.W. "said that Aunt Jessica . . . had told her to tell them that her dad had not done this, and had kept on and on until . . . she told one lady that he didn't, but he did."). When S.W. began to describe petitioner's actions in detail, Ms. Hayes asked the school nurse to join them. S.W. told them that petitioner had molested her on a number of occasions. (Tr. 344-45).
On August 9, 2005, S.W. was interviewed by Tommy Capps, an investigator with the Division of Children's Services. A videotape of the interview was played at trial. S.W. told Mr. Capps that, at various times, petitioner put his penis in her mouth, put his mouth and his hand on her vagina, and made her put her hand on his penis.
Additional facts will be included as necessary to address the merits of petitioner's claims for relief.
When a claim has been adjudicated on the merits in state court proceedings, habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), only if the state court's determination:
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,"
Petitioner asserts that there was no evidence that he put his mouth on S.W.'s vagina on more than one occasion, as charged in Count II of the second amended information. Resp. Ex. A at 14-15. He claims that the trial court erred by denying his motion for acquittal on this count (Ground 1) and that the court of appeals erred by affirming his conviction (Ground 2).
During direct examination, S.W. twice answered "No" when the prosecutor asked whether petitioner ever touched her vagina with his mouth. Tr. 221. On cross-examination, when asked again, she answered, "I can't remember." Tr. 237. However, in August 2005, S.W. told investigator Tommy Capps that petitioner did touch her "private" with his mouth — once while they were at her grandmother's home and once in a trailer.
"Constitutionally, sufficient evidence supports a conviction if, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"
The Missouri Court of Appeals determined that the videotaped interview was properly admitted into evidence and that S.W.'s statements during the interview constituted sufficient evidence for a reasonable person to find that petitioner committed first-degree statutory sodomy by placing his mouth on S.W.'s vagina on more than one occasion. Resp. Ex. D at 15. Petitioner argues that S.W.'s videotaped statements were contradicted by her trial testimony and thus cannot constitute evidence. To the extent that S.W. gave conflicting statements, it was the function of the jury to evaluate which version they found credible. Petitioner may disagree with the jury's credibility determination, but that is a different question than whether the prosecution presented evidence in the first instance. Because there was evidence sufficient to establish the charged offense, the decisions of the state courts were not contrary to, or unreasonable applications, of established federal law.
Petitioner asserts three claims that his trial counsel rendered constitutionally ineffective assistance, three claims that the Missouri Court of Appeals erred in affirming the denial of post-conviction relief on these claims, and one claim that post-conviction counsel was ineffective.
To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced thereby.
"Taken together, AEDPA and
Petitioner asserts that trial counsel rendered ineffective assistance by failing to challenge juror Dale Hall during jury selection or to move for a mistrial after Mr. Hall revealed mid-trial that he knew petitioner and his family. He asserts that the post-conviction court erred in denying his ineffective-assistance claim (Ground 3) and that the appeals court erred in affirming that denial (Ground 4).
At trial, Ms. Byrd testified that the family had lived at 115 West Main St., in Hayti, Missouri, at some time between 2002 and 2005. (Tr. 253-56). During a recess following this testimony, juror Dale Hall informed the court that he lived at 110 West Main St. (Tr. 278). In response to questions from the court, Mr. Hall stated that he had not interacted socially with members of petitioner's family and had not known their names. He felt that he could be a fair and impartial juror. The attorneys did not ask Mr. Hall any additional questions and he was allowed to remain on the jury.
Petitioner and his trial counsel both testified at the post-conviction evidentiary hearing. Counsel testified that petitioner told him during voir dire that Mr. Hall might have been a neighbor. Resp. Ex. K at 5. According to counsel, petitioner thought Mr. Hall's familiarity with the family would be beneficial to the defense, because Mr. Hall would know that S.W. and her family were "somewhat untruthful." Counsel testified that he thought it was "odd" that Mr. Hall did not state he knew the family during voir dire, but counsel did not pursue the issue because petitioner wanted Mr. Hall on the jury.
The post-conviction court rejected petitioner's claim that counsel rendered ineffective assistance by failing to move to strike Mr. Hall during jury selection. The court found that petitioner acquiesced in the decision to leave Mr. Hall on the jury and thus was foreclosed from raising the issue in a post-conviction motion. Resp. Ex. F at 5-6.
Darrell Kuehl and David Holifield testified that they met petitioner in the Pemiscot County Jail while they were awaiting trial on stealing charges. They each testified that petitioner told them he had abused his stepdaughter. Tr. 373-74, 381. Petitioner claims that his counsel was ineffective for failing to request a pretrial reliability hearing in order to prove their testimony was inherently unreliable. He argues that the post-conviction court erred in denying this claim (Ground 5) and that the appellate court erred in affirming the denial (Ground 6).
The state courts rejected petitioner's claim based on counsel's failure to seek a pretrial reliability hearing on this testimony because Missouri criminal procedure does not provide for such a hearing. Resp. Ex. F at 6 ("This court not aware of any such procedure in Missouri criminal cases involving unprivileged testimony by a competent, adult, lay witness). "Counsel is not ineffective for failing to request a hearing he has no right to receive." Resp. Ex. I at 8. The court of appeals further found that petitioner failed to establish that the outcome of the trial would have been different if the testimony of the jailhouse informants had been excluded. The state court decisions are not contrary to, or unreasonable applications, of established federal law.
Petitioner argues in Ground 7 that post-conviction counsel provided ineffective assistance by failing to reassert the claims he raised in his pro se motion for post-conviction relief. He further argues that the post-conviction court denied him due process by failing to issue findings of fact and conclusions of law on the claims made in his pro se motion.
Petitioner filed a pro se motion for post-conviction relief pursuant to Mo.S.Ct.R. 29.15 in which he asserted five claims for relief.
Petitioner does not seek relief on the merits of the excluded claims or argue that ineffective assistance of post-conviction counsel caused procedural default of the claims. Rather, he challenges the refusal of Missouri courts to review pro se claims that are not included in the amended petition. This alleged error in state court post-conviction proceedings does not constitute an error of constitutional magnitude and thus is not cognizable in federal habeas corpus proceedings.
S.W.'s mother, Ms. Byrd, testified at a pretrial hearing that, about three months before S.W. disclosed the abuse, she told her mother that she would "do whatever it takes" to get petitioner out of the house. Resp. Ex. J at 63. Ms. Byrd also testified that S.W. often told petitioner she did not want him there "because him being a stepfather."
At the post-conviction evidentiary hearing, trial counsel testified that he chose not to impeach Ms. Byrd because she was crying uncontrollably. Resp. Ex. K at 16. He stated he looked at the jurors and "every one of the jurors was crying."
The post-conviction court found that counsel made a reasonable strategic decision not to use Ms. Byrd's prior inconsistent statement for impeachment, and thus did not provide ineffective assistance. The court further found that petitioner could not establish he was prejudiced by the alleged failure because impeaching Ms. Byrd would not have changed the outcome of the trial. Resp. Ex. F at 7. The appellate court affirmed. Resp. Ex. I at 10-11. The state court decisions are not contrary to, or unreasonable applications, of established federal law.
For the reasons discussed above, the Court concludes 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 the state court proceedings. 28 U.S.C. § 2254(d). Petitioner has also failed to make a substantial showing of the denial of a constitutional right. Therefore, the Court will not issue a certificate of appealability.
