NOELLE C. COLLINS, Magistrate Judge.
This matter is before the Court for review and final disposition of a petition for writ of habeas corpus filed by Craig Hill ("Hill" or "petitioner") pursuant to 28 U.S.C. § 2254.
The Missouri Court of Appeals, Eastern District, summarized the facts as follows:
Chase testified that although it was getting dark, the street lights had come on and there was enough light for her to see the shooter clearly. Chase testified that the shooter was light skinned, skinny, a couple of inches taller than her, and had his hair in medium sized twisties. Chase identified [Hill] as the shooter in court.
Resp't Ex. E at 2-6 (Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b)).
On direct appeal, petitioner argued that (1) the trial court erred in denying his motion to suppress identifications, and in allowing testimony regarding the pretrial lineup and in-court identifications of him by Erica Alexander and Sabrina Chase; and (2) the trial court plainly erred in allowing the prosecutor to argue in closing that the evidence was uncontradicted and uncontroverted in violation of his Fifth Amendment right to stay silent. Id. at 6-7. The Missouri Court of Appeals found that the grounds were not preserved for appellate review and, therefore, reviewed them for plain error. Id. at 7. After review, the appellate court found no plain error and affirmed the conviction and sentences. Id. at 8-12.
Petitioner filed a timely motion for postconviction relief under Rule 29.15 of the Missouri Court Rules. Resp't Ex. F at 3 (Legal File). The motion court denied relief without holding an evidentiary hearing. Id. at 3.
On appeal from the denial of postconviction relief, petitioner argued that (1) trial counsel was ineffective for failing to investigate and call Courtney Woods and Josephine Woods to testify at trial because they would have provided him with an alibi; and (2) trial counsel was ineffective for refusing to allow him to testify at trial. Resp't Ex. I at 12-13 (Appellant's Statement, Br., and Argument). The Missouri Court of Appeals, Eastern District, applied the Strickland test to both of petitioner's claims, and it found that petitioner had failed to demonstrate that trial counsel was ineffective. Resp't Ex. at 3-8.
Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 1, 2014.
To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted may not give rise to federal habeas relief unless the petitioner can demonstrate cause and prejudice for the default. Id. "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can 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).
"In the habeas setting, a federal court is bound by the AEDPA to exercise only limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner unless the state court's adjudication of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
A state court decision is contrary to clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or . . . decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. Finally, 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); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
Federal habeas review of an ineffective assistance of counsel claim is "doubly deferential." Knowles v. Mirzayance, 556 U.S. 111 (2009). First, a petitioner must overcome the high bar of Strickland v. Washington, 466 U.S. 668 (1984), by showing that (1) counsel's performance fell below an objective standard of reasonableness; and (2) petitioner was sufficiently prejudiced such that "the result of the proceeding would have been different." Id. at 688, 694. Second, under 28 U.S.C. § 2254, petitioner must show that the state court's adjudication of his ineffective assistance claim was "unreasonable." Harrington v. Richter, 562 U.S. 86, 105 (2011). Both the Strickland standard and the standard set forth in § 2254 are highly deferential. Ultimately, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.
In ground one, petitioner argues that counsel was ineffective for failing to call as witnesses Mary Hill, Adrian Hill, Dana Merriweather, Rochelle Smith, "as well as alibi witnesses Josephine, Anthony, and Courtney Woods, and the testimony of Craig Hill, that would have demonstrated Hill's actual innocence."
Respondent argues that ground one is procedurally defaulted. Petitioner responds that the claim could have been presented to the state courts with more clarity but that the "substance" of the claim was presented to the state courts.
In his appeal from the denial of postconviction relief, petitioner argued that trial counsel was ineffective for failing to investigate and call Courtney and Josephine Woods, who would have provided him with an alibi. Petitioner testified during his deposition that Courtney and Josephine Woods had told his mother that he was at their house at the time the shooting occurred. Resp't Ex. G at 9 (Dep. Tr.). He told counsel about the witnesses and gave him their address and phone number. Id. Counsel endorsed them as witnesses. Id. at 8-9; Resp't Ex. B at 27 (Legal File). During his deposition, counsel testified that he knew the address and phone number for the witnesses. Resp't Ex. H at 10 (Dep. Tr.). He further testified that he called them but they did not call him back. Id. He said the did not go to their house to attempt to talk to them. Id.
In denying relief on this claim, the Missouri Court of Appeals discussed the problems with petitioner's alleged witnesses:
Resp't Ex. K at 4-5.
The appellate court applied the Strickland standard and found that petitioner had failed to show that petitioner "failed to show that [Courtney or Josephine Woods] could have been successfully contacted or would have testified if called." Id. at 6. The court noted that they had refused to return counsel's calls and refused to appear for their depositions or the motion hearing. Id. The court also noted that counsel was concerned about calling any of petitioner's witnesses because "the prosecutor would have `rammed them down his throat." Id. at 4.
The Missouri Court of Appeals' recitation of the facts is supported by the record. Petitioner failed to demonstrate that counsel was ineffective, and he has not shown that the state court's decision was contrary to clearly established federal law. As a result, petitioner is not entitled to relief on ground one of the petition. Moreover, to the extent that petitioner is attempting to bring claims he did not bring in his postconviction appeal — such as his claim that counsel should have investigated and called Mary Hill, Adrian Hill, Dana Merriweather, Rochelle Smith — his claims are procedurally barred, and he has not shown cause or prejudice for the default.
In ground two, petitioner argues that trial counsel was ineffective for failing to investigate and call his alibi witnesses.
This claim is duplicative of ground one. Petitioner mentions that his mother told counsel about some other possible witnesses she knew of who had seen him at the time of the shooting, but neither petitioner nor his mother told counsel who the witnesses were or where they could be found. This claim is wholly unsupported by the record, and petitioner failed to raise it in his postconviction appeal. Therefore, this claim is both meritless and procedurally defaulted.
In ground three, petitioner argues that trial counsel was ineffective for advising him not to testify at trial. Respondent contends that this claim is refuted by the record.
After the close of the State's evidence, the following colloquy occurred between the trial court and petitioner:
Resp't Ex. A at 408-09 (Trial Tr.).
The Missouri Court of Appeals denied this claim, citing the Strickland standard, stating, "Here, [petitioner] admitted he knew he had the right to testify and it was his decision, and counsel's advice not to testify constituted sound trial strategy because of [petitioner's] vulnerability on cross-examination in light of his multiple conflicting alibis." Resp't Ex. K at 8.
The appellate court's determination of the facts is supported by the record. Petitioner testified that it was his strategic decision not to testify. And the court applied the correct federal standard. As a result, petitioner is not entitled to relief on this ground.
In ground four, petitioner argues that counsel was ineffective for failing to object to a verdict director based on transferred intent. He contends that because the indictment only charged him with first-degree murder, the verdict director on transferred intent was improper. Respondent argues that this claim is procedurally barred and meritless.
Petitioner raised this ground in his motion for postconviction relief. However, he did not raise it on the appeal thereof. He argues that, nevertheless, he fairly presented his claim to the state courts. Alternatively, he argues that the procedural bar is excused because postconviction counsel was ineffective for not bringing it on appeal. Petitioner is incorrect.
Issues not raised before the Missouri appellate court, in either a direct appeal or in the appeal of the denial of a Rule 29.15 motion, as appropriate, are procedurally defaulted and cannot be raised pursuant to § 2254, absent a showing of cause and prejudice. See Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003).
Petitioner's claim that postconviction counsel was ineffective failing to bring this claim on appeal is wholly conclusory, and does not allege any facts that might demonstrate his claim. Ground four is procedurally defaulted, and petitioner is not entitled to relief on this ground.
Moreover, this claim arises under state law and is not cognizable in federal habeas relief.
Finally, in discussing this ground, the motion court stated: "[Petitioner] has cited no legal authority that this is not permitted and the Court finds the claim without merit." Resp't Ex. F at 123. Petitioner has not cited any cases from the United States Supreme Court demonstrating that he is entitled to relief on this ground. For each of these reasons, petitioner is not entitled to relief on this ground.
In ground five, petitioner argues that the trial court erred when it failed to suppress petitioner's identification from the lineups. Petitioner contends that the lineup was impermissibly suggestive because some of the other persons in it were taller than petitioner or did not have the same hairstyle. Petitioner contends that the Court should review this claim de novo.
On direct appeal, the court found that petitioner had failed to preserve the issue for appeal. Resp't Ex. E at 7. Petitioner asked the court to review it for plain error, and the court did so. Id. "Under plain error review, this Court must first determine whether the trial court actually committed an evident, obvious, and clear error that affected a substantial right. Then, we must determine whether the error resulted in a manifest injustice or a miscarriage of justice. Id. The appellate court found that petitioner had failed to show that the "pre-trial identification procedures were impermissibly suggestive . . ." Id. at 10. The court also found that petitioner had failed to show prejudice because the witnesses identified him in court as well. Id.
Id. at 9.
When a state court reviews a claim for plain error, the district court must review the state court's claim with the "deferential lens" of the AEDPA. Shelton v. Purkett, 563 F.3d 404, 408 (8th Cir. 2009).
The Missouri Court of Appeal's decision that there was no manifest injustice was not unreasonable. The witnesses testified that they clearly saw petitioner at the time of the incident. They stated that the police did not coerce them into identifying anyone in the lineup. And they recognized petitioner in Court. As a result, petitioner is not entitled to relief on this ground.
In ground six, petitioner argues that trial counsel was ineffective by failing to investigate and impeach State witness Jason Holman with his prior misdemeanor conviction of driving while suspended. Petitioner admits that he did not raise this claim in his motion for postconviction relief. He says cause and prejudice exists because he was in prison when the motion was filed and he did not have access to the State's criminal records.
Respondent argues that this claim is procedurally barred and that petitioner cannot show Strickland prejudice because trial counsel impeached Holman with a prior felony conviction. Respondent is correct.
Because he did not present this claim to the state courts, this claim is procedurally barred. He cannot show prejudice because nothing external to the defense prevented him from bringing this claim.
Furthermore, this claim is meritless. On cross-examination, trial counsel asked Holman if he had ever been convicted of a felony. Resp't Ex. A at 311. Holman replied that he had been convicted for carrying a concealed weapon. Id. Petitioner has failed to show that, had trial counsel also elicited that Holman had a misdemeanor offense as well, the jury would have returned a not guilty verdict. As a result, petitioner is not entitled to relief on this ground.
In ground seven, petitioner argues that trial counsel was ineffective due to the cumulative effect of his errors.
Cumulative error is not recognized under clearly established federal law. See Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006). As a result, petitioner is not entitled to relief on this ground.
For these reasons, petitioner is not entitled to federal habeas relief. Furthermore, petitioner has failed to make a substantial showing of the denial of a constitutional right, which requires a demonstration "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002) (quotation omitted). Thus, the Court will not issue a certificate of appealability. 28 U.S.C. § 2253(c).
Accordingly,
A separate Judgment will issue forthwith.
