CATHERINE D. PERRY, District Judge.
Robert Griffith was convicted by jury in a Missouri state court of one count of first-degree child molestation.
After deliberating from September 19-20, 2008, a jury convicted Robert Griffith of first-degree child molestation. One month later, he was sentenced to five years of incarceration with the Missouri Department of Corrections. On appeal, Griffith raised eight points of error, including juror misconduct, instructional error, and insufficiency of the evidence. The Court of Appeals for the Southern District of Missouri affirmed the conviction. State v. Griffith, 312 S.W.3d 413, 427 (Mo. Ct. App. 2010). Griffith was denied both rehearing and transfer to the Supreme Court of Missouri, and he brought no motion in state court for post-conviction relief.
In 2006, Robert Griffin was employed as a pre-kindergarten school bus driver in Doniphan, Missouri. One of his passengers included Child, a five-yearold girl who rode the bus home each morning.
Child`s father ("Father") testified at trial. In September 2006, he began noticing that the bus, which until then had dropped Child off at regular times, began sporadically running late. In November 2006, Father saw Child exit the bus crying. She did not want Father to talk to her bus driver. The next day, she refused to go to school, which was abnormal. Child told Father that she was tired of being kissed and did not want to ride the bus. Child later told Father that her bus driver, "Bob," had touched her on the "pee-pee" and had made her touch Bob`s "pee-pee." Father testified further on the interactions reported to him by Child, including that she and Bob had gotten "sexy" — meaning that they had taken off their clothes. Father also recalled other changes in his daughter`s behavior, including incidents where she would hit herself in the head, saying "she had a lot of bad things in her head." Tr. 361, 364.
When deposed, Child corroborated that she had told her father that Bob had both touched and kissed her on the "pee-pee." ECF Doc. 1-19, Dep. Sept. 25, 2007 ("Sept. Dep."), at 23-24. Child said that the Bob she was talking about is the Bob that is her bus driver. Sept. Dep. at 25.
The Court of Appeals set forth some of the evidence supporting conviction:
Griffith, 312 S.W.3d at 425-26 (internal citations omitted) (quoting Sept. Dep. at p. 18-19).
The Court of Appeals rejected Griffith`s arguments that the evidence was insufficient to convict and that conflicts in Child`s testimony required corroboration under Missouri Law:
The foregoing testimony, even if uncorroborated, ordinarily would support Defendant`s conviction. Generally, in sexual offense cases the victim`s testimony alone is sufficient to sustain a conviction, even if uncorroborated.
We consider these arguments in turn.
Griffith, 312 S.W.3d at 426 (quotation marks and citations omitted). The Court of Appeals quoted from two depositions during which Child was interrogated on the identity of her abuser:
Griffith, 312 S.W.3d at 426 n.10 (quoting ECF Doc. 1-20; 1-18). Ultimately, the Missouri Court of Appeals found that Child`s misidentifications did not create reasonable doubt as to Griffith`s guilt:
Griffith, 312 S.W.3d at 426-28 (internal quotation marks, citations, and footnote omitted).
Griffith raises two grounds for relief. First, Griffith argues that the Missouri Court of Appeals violated his rights to procedural due process by applying the incorrect threshold to his challenge of the sufficiency of the evidence. Second, Griffith argues that there is clear and convincing evidence opposing any factual determinations made by the appellate court in upholding his conviction.
"A petitioner must present both the factual and legal premises' of his claims to the state courts in order to preserve them for federal habeas review." Kilmartin v. Kemna, 253 F.3d 1087, 1088 (8th Cir. 2001) (quoting Flieger v. Delo, 16 F.3d 878, 884 (8th Cir. 1994). The petitioner bears the burden of proving either exhaustion of state remedies prior to filing the federal petition or the satisfaction of an exception to the exhaustion requirement. Darr v. Burford, 339 U.S. 200, 218 (1950), overruled on other grounds by Fay v. Noia, 372 U.S. 391 (1963).
Applications for transfer to the Missouri Supreme Court are not part of the standard review process for purposes of federal habeas corpus review. See Randolph v. Kemna, 276 F.3d 401, 404 (8th Cir. 2002) (citing Mo. S. Ct. R. 83.04). Griffith challenged the sufficiency of his conviction in the court of appeals, and he alleged that the appellate court applied the incorrect law in contravention of United States Supreme Court precedent in his applications for transfer to the Supreme Court of Missouri. Griffith`s claims for relief were exhausted. Cf. Randolph, 276 F.3d at 402-03, 405-06.
Under section (d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, when a claim has been adjudicated on the merits in state court, an application for a writ of habeas corpus shall not be granted unless the state court adjudication:
28 U.S.C. § 2254(d).
In Shafer v. Bowersox, the Eighth Circuit articulated the standards for subsection (1) as follows:
329 F.3d 637, 646-47 (8th Cir. 2003) (quoting Williams v. Taylor, 529 U.S. 362, 405, 411, 413 (2000)).
Under subsection (2), "a state court decision involves an unreasonable determination of the facts in light of the evidence presented in state court proceedings,' only if it is shown by clear and convincing evidence that the state court`s presumptively correct factual findings do not enjoy support in the record." Lomholt v. Iowa, 327 F.3d 748, 752 (8th Cir. 2003) (quoting 28 U.S.C. § 2254(d)(2)) (citing 28 U.S.C. § 2254(e)(1); Boyd v. Minnesota, 274 F.3d 497, 501 n.4 (8th Cir. 2001)).
In his first ground for relief, Griffith argues that his rights to procedural due process were violated because the Missouri Court of Appeals analyzed the sufficiency of the evidence under the outdated "no set of facts" principle, rather than the "beyond a reasonable doubt" standard set forth in Jackson v. Virginia.
In reviewing a claim of insufficiency of the evidence, "the relevant question is whether, 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). "Once a defendant has been found guilty of the crime charged, the factfinder`s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Id. (emphasis in original). In applying this standard, the scope of review is extremely limited. The court must presume that the trier of fact resolved all conflicting inferences in the record in favor of the state, and the court must defer to that resolution. Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003).
Before Jackson, the Supreme Court in Thompson stated that in order for a state court conviction to be overturned in a habeas corpus proceeding, there must be "no evidence whatever in the record" to support conviction. Thompson v. City of Louisville, 362 U.S. 199, 206 (1979).
Because a federal court can grant habeas relief only if there was an unreasonable application of clearly established federal law, this court may grant relief only if it finds the Missouri appellate court`s conclusion that the evidence satisfied the Jackson sufficiency of evidence standard was "both incorrect and unreasonable." Cole v. Roper, 623 F.3d 1183, 1187 (8th Cir. 2010) (emphases added); see Skillicorn v. Luebbers, 475 F.3d 965, 977 (8th Cir. 2007) (recognizing the scope of review of the state court`s determination of whether evidence was sufficient is "extremely limited").
Griffith contends that the Missouri Court of Appeals must have followed the "no set of facts" standard of Thompson, rather than the proper standard set forth in Jackson. Griffith bases this argument on the court`s decision to cite State v. Jones, 296 S.W.3d 506 (Mo. Ct. App. 2009), for the proposition that the court is not a "super juror."
Griffith`s argument misses the mark. At the outset of its sufficiency analysis, the Missouri Court of Appeals gauged whether it needed to apply Missouri`s "corroboration rule." It ultimately determined that the case at bar did not require "a different quantum of evidence" "from the due process standard for appellate review and the phrase beyond a reasonable doubt." Griffith, 312 S.W.3d at 425 (internal quotation marks and alteration marks omitted) (quoting State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993)). The Grim court, in turn, specifically noted that Missouri courts use the same standard for reviewing the sufficiency of the evidence established in Jackson. Grim, 854 S.W.2d at 405. Nothing in the record indicates that the appellate court applied the "no set of facts" standard, rather than the standard articulated in Jackson.
Having determined that the state court used the correct federal law, I must now look to whether the law was applied unreasonably to the facts. Griffith argues that because Child`s testimony was internally inconsistent, her testimony could not have constituted sufficient evidence for the jury to find him guilty beyond a reasonable doubt.
The court of appeals acknowledged that during her deposition crossexaminations, Child identified the wrong man as her bus driver, "Bob." However, the court recognized that Child repeatedly stated that the man who inappropriately touched her was her bus driver. Father identified the defendant, Robert Griffin, as Child`s bus driver, and Griffith admitted at trial that he was Child`s bus driver. This is sufficient evidence for a trier of fact to determine that Robert Griffin and "Bob" are the same person.
The court of appeals also noted that Child repeatedly responded, "I don`t know," to many of the questions. However, the court also recognized correctly that "when Child was told at deposition that she needed to say what Bob did to her, she did not say, I don`t know. `She said that he [t]ouched my titties,' and never recanted that statement." Griffith, 312 S.W.3d at 427 (alteration in original).
Griffith argues that the inconsistencies in Child`s testimony are so detrimental to the prosecution that there must be reasonable doubts as to his guilt. But inferences must be made in favor of the prosecution. Whitehead, 340 F.3d at 536. "It is the exclusive province of the jury to determine the believability of a witness." U.S. v. Kime, 99 F.3d 870, 884 (8th Cir. 1996); see also U.S. v. Peneaux, 432 F.3d 882, 890 (8th Cir. 2005).
Griffith`s second ground for relief asserts the same facts as ground one but attempts to preserve the issue for appeal under the clear and convincing evidence standard. Griffith, though represented by counsel, "finds it difficult to understand exactly what there must be shown by clear and convincing evidence.`" Likewise, this court finds it difficult to understand what argument Griffith presents in his second ground for relief. At one point, Griffith argues, "[I]t would seem to be the State`s burden to enlighten the court on what the State thought it proved." Doc. 1, p. 20.
So far as Griffith argues that the appellate court`s decisions are based upon unreasonable determinations of the facts, it is his burden to show "by clear and convincing evidence that the court`s presumptively correct factual findings do not enjoy support in the record." Lomholt, 327 F.3d at 752. Griffith does point to some facts that he believes should leave me clearly convinced of the insufficiency of the evidence, including testimony from Child that the molestation occurred when it was dark, her inability to identify Griffith`s home from a photograph, and the fact that Griffith drove the daytime bus. To the extent that Griffith makes any tenable argument on this point, it echoes the reasons set forth under his first Ground for relief. Griffith fails to carry his burden, and ground two of his petition for habeas corpus is denied.
Under 28 U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28 U.S.C. § 2254 proceeding unless a circuit justice or judge issues a Certificate of Appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the justice or judge must find a substantial showing of the denial of a federal constitutional right. Id. § 2253(c)(2); see Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). I find that reasonable jurists could not differ on any of Griffith`s claims, so I will deny a Certificate of Appealability on all claims.
Accordingly,
A separate judgment in accordance with this Memorandum and Order is entered this same date.
