RONNIE L. WHITE, District Judge.
This matter is before the Court on the Petition of Montrell Moore for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Petition is fully briefed and ready for disposition.
Petitioner Montrell Moore is currently incarcerated at the Southeast Correctional Center ("SECC") pursuant to the judgment and sentence of the Circuit Court of St. Louis City, Missouri. (Resp't's Ex. 3 pp. 95-100) On August 11, 2010, a jury found Petitioner guilty of second-degree murder, abuse of a child resulting in death, endangering the welfare of a child in the first degree, possession of a controlled substance, possession of marijuana under 35 grams, and possession of drug paraphernalia. (Resp't's Ex. 6 p. 1; Resp't's Ex. 3 pp. 7, 83-88) On September 10, 2010, the court sentenced him to consecutive terms of life imprisonment on the murder and child abuse resulting in death convictions; consecutive terms of 7 years' imprisonment on the endangering the welfare of a child and possession of a controlled substance counts; and concurrent one year terms of imprisonment on the marijuana and drug paraphernalia counts. (Resp't's Ex. 3 pp. 95-100) Petitioner filed a direct appeal, and on December 13, 2011, the Missouri Court of Appeals affirmed the judgment of the trial court. (Resp't's Ex. 6) Petitioner then filed Motions to Vacate, Set Aside, or Correct Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15. (Resp't's Ex. 10 pp. 29-33, 41-48) Appointed counsel filed an amended Rule 29.15 motion on July 16, 2012. (Id. at pp. 50-72) On May 14, 2013, the motion court denied Petitioner's motion for post-conviction relief. (Id. at pp. 79-86) On May 13, 2014, the Missouri Court of Appeals affirmed the judgment of the motion court. (Resp't's Ex. 13) On December 15, 2014, Petitioner filed the present petition for habeas relief in federal court.
In June of 2009, Petitioner was living with his girlfriend, L.C., and her two children, S.B. and R.W., ages 2 and 9 respectively. On June 26, 2009, L.C. gave S.B. a bath and then took him downstairs around 11:00 p.m. where he slept on a sectional couch. During the night, L.C. heard S.B. whining so she went downstairs to check on him. Petitioner was in the kitchen and told L.C. that nothing was wrong with S.B. During the night, S.B. awoke and was fussy and loud. In the morning, L.C. woke up around 4:30 a.m. to get ready for work. She tucked in S.B., told him to go back to sleep, and left for work around 5:00 a.m. L.C.'s fifteen-year-old sister, T.C., was staying there to help with S.B. She slept on the opposite end of the couch from S.B. and awakened to knocks at the door from paramedics. Around 8:00 a.m., Petitioner called L.C. to inform her that S.B. had been taken to the emergency room because his face was peeling. Petitioner said that he found S.B. drinking a cleaning fluid. When S.B. arrived at the hospital, S.B. was not breathing and was in complete cardiopulmonary arrest. The ER physician found a burn on S.B.'s face that was consistent with scalding from a very hot liquid and found no indication that S.B. had ingested a chemical cleaning fluid. The doctor also found a bruise on S.B.'s face and large bruises in the shape of hand prints, finger prints, and fist marks along S.B.'s rib cage.
When the hospital workers informed Petitioner that S.B. could not be resuscitated, Petitioner started hitting the walls and apologizing. When L.C. arrived at the hospital, S.B. had already passed away. L.C. hit Petitioner and asked what he did to her son. Petitioner again apologized. However, he provided inconsistent stories as to how S.B. was injured. He finally admitted that he struck S.B. several times with his hand, and he wrote an apology letter to L.C. from jail. The medical examiner found extensive injuries on S.B., including a blunt force injury on his forehead, broken ribs on both sides, punctured lungs, bruising on his heart, a tear in the liver, and a lacerated spleen and kidney. Cause of death was ruled as abdominal blunt force trauma. Moore v. State, 431 S.W.3d 15, 17-18 (Mo. Ct. App. 2014).
In his Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus, Petitioner raises six claims for federal habeas relief. Petitioner argues in Ground One that the trial court erred in not striking juror 837 for cause because the juror was biased. In Ground Two, Petitioner asserts that the trial court erred in allowing witness testimony regarding prior child abuse of S.B. because it improperly showed a propensity for child abuse. Ground Three alleges that the trial court erred by admitting autopsy photos. In Ground Four, Petitioner contends that the trial court erred in denying Petitioner's motion for a new trial because the charges of second degree murder and abuse of a child resulting in death violated the ban on double jeopardy. Petitioner asserts in Ground Five that trial counsel was ineffective for failing to call a potential witness, Tayrean Smith. Finally, in Ground Six, Petitioner contends that trial counsel was ineffective for failing to present theory that S.B.'s injuries were caused by someone else.
Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus. . . only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, a federal court may not grant habeas relief unless the claim adjudicated on the merits in state court "`resulted in a decision that was contrary to, or involved an umeasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. § 2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual findings presumed to be correct where fairly supported by the record).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With regard to the "umeasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but umeasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Bucklew v. Luebbers 436 F.3d 1010, 1016 (8th Cir. 2006); Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.
To preserve a claim for federal habeas review, a petitioner must present the claim to the state court and allow that court the opportunity to address petitioner's claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation omitted). "Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted." Id. A federal court will consider a defaulted habeas claim "only where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice." Id.
In the instant case, Respondent concedes that Petitioner timely filed his petition and properly raised his claims in state court. Thus, Petitioner's claims are exhausted and are not procedurally barred from federal review.
Petitioner argues in ground one that the trial court erred in not striking juror 837 for cause because the juror was biased. Specifically, Petitioner contends that the juror repeatedly made statements during voir dire that demonstrated bias against Petitioner, depriving him of a fair trial. Petitioner raised this ground on direct appeal. The Missouri Court of Appeals addressed Petitioner's claim and found that the trial court did not abuse its discretion in failing to strike the venireperson for cause. (Resp't's Ex. 6 p. 8) The Moore court extensively quoted the voir dire transcript, wherein the juror indicated that she and three female cousins had been abused by an uncle. (Id. at pp. 4-8) She stated that she would have difficulty listening to the evidence due to her experience as a mother and the fact that a minor was involved. (Id. at pp. 5-6) However, the juror also stated that her experience would not affect her ability to listen to the evidence and be fair to both sides. (Id. at pp. 5-7) The Missouri Court of Appeals addressed Petitioner's claim that the trial court erred in failing to strike the venireperson because she demonstrated an inability to remain impartial and found:
(Id. at pp. 7-8)
"The issue of an individual juror's partiality is a question of `historical fact' for the trial court, and is entitled to `special deference.'" Reynolds v. Russell, No. 4:14 CV 1060 CDP, 2015 WL 7273322, at *4 (E.D. Mo. Nov. 18, 2015) (quoting Patton v. Yount, 467 U.S. 1025, 1036, 138 (1984)). "`Under 28 U.S.C. § 2254(d), a habeas court must, of course, afford this determination the presumption of correctness due a state court's factual findings.'" Id. (quoting Logan v. Lockhart, 994 F.2d 1324, 1326-27 (8th Cir. 1993)). "`The question for this court, then, is whether the state court's conclusion that the juror would be impartial is fairly supported by the record.'" Id. (quoting Logan, 994 F.2d at 1327). Petitioner has the burden of showing "with clear and convincing evidence . . . that the state court incorrectly resolved the factual issue of [Petitioner's] bias." McFarland v. Wallace, No. 4:12CV290 RWS, 2015 WL 1347001, at *25 (E.D. Mo. Mar. 19, 2015).
Here, the state court found that Plaintiff was unequivocal in stating that she could remain fair and impartial and would base her decision on the evidence presented. (Resp`t's Ex. 6 pp. 7-8) Because Petitioner has not presented clear and convincing evidence to the contrary, the Court "must accept the state court's factual finding that [Ms. Raymond] was not actually biased." Sanders v. Norris, 529 F.3d 787, 791 (8th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Thus, the Court finds that Petitioner's first ground for habeas relief lacks merit and is denied.
In his second ground, Petitioner claims that the trial court erred in allowing witness testimony regarding prior child abuse of S.B. because it improperly showed a propensity for child abuse. Specifically, Petitioner asserts that the testimonies from Tia Coleman and Re'Gan Wilson regarding Petitioner's prior bad acts violated his right to be tried only for the charged crimes. The Missouri Court of Appeals addressed this claim and found no prejudice from the admission of the evidence in light of the substantial evidence against Petitioner. (Resp't's Ex. 6 p. 9) The state court did not find that the admission of Coleman and Wilson's testimony was inadmissible. However, the court assumed arguendo that those testimonies were inadmissible and found, "in light of all the evidence which was properly admitted in this case, we conclude that there is not a reasonable probability that the jury would have acquitted [Petitioner] but for the allegedly erroneously admitted testimony of Coleman and Wilson." (Id.)
The challenged testimony included Coleman testifying that she saw Petitioner "grab the victim's head to force it to tum around so the victim would go to sleep" and that "the victim had scratches all over his body and a scar across his forehead" which the victim attributed to an iron. (Id. at p. 8) Wilson testified that she witnessed Petitioner "hit the victim in the leg and arm" and "spank the victim if he ever got off the couch." (Id. at p. 9) In addition, Wilson recalled that she heard Petitioner "punch the victim in the stomach, causing the victim to throw up." (Id.) Petitioner argued on appeal, as he does in the present Petition, that the trial court admitted this testimony for the purpose of showing his propensity for abusing the victim. (Id.) The appellate court found that Petitioner was not prejudiced by the admission of this testimony. (Id. at p. 11)
"`Questions regarding admissibility of evidence are matters of state law, and they are reviewed in federal habeas inquiries only to determine whether an alleged error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process.'" Rousan v. Roper, 436 F.3d 951, 958 (8th Cir. 2006) (quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir.1993)). "The question of undue prejudice in the admissibility of evidence addresses itself to the discretion of the trial court." Anderson v. Goeke, 44 F.3d 675, 678 (8th Cir. 1995). Federal courts on habeas review "will reverse a state court evidentiary ruling only if the `petitioner . . . show[s] that the alleged improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair.'" Id. at 679 (quoting Hamilton v. Nix, 809 F.2d 463, 470 (8th Cir. 1987) (internal quotation omitted)). "`To carry that burden, the petitioner must show that there is a reasonable probability that the error complained of affected the outcome of the trial-i.e., that absent the alleged impropriety the verdict probably would have been different.'" Id. (quoting Hamilton, 809 F.2d at 470).
Here, the Court gives appropriate deference to the state court's finding that Petitioner failed to demonstrate the requisite prejudice. The totality of evidence presented at trial supported Petitioner's conviction regardless of the witnesses' testimonies. Petitioner changed his story several times before finally admitting to striking the victim. Upon hearing that S.B. could not be revived, he began hitting the walls and apologizing. In addition, he wrote a letter to the victim's mother stating he was sorry. Further, the medical evidence showed bums consistent with immersion into a hot liquid and not ingestion of cleaner. In addition, the bruising was consistent with hand marks from an adult, and the cause of death resulted from a massive amount of force. Based on this evidence, Petitioner is unable to demonstrate that the testimony of Coleman and Wilson "fatally infected the proceedings or that there is a reasonable probability that [the testimony] affected the outcome of the trial." White v. Wallace, No. 4:14-CV-1357 (CEJ), 2017 WL 1374711, at *4 (E.D. Mo. Apr. 17, 2017). Thus, the Court concludes that the appellate court's determination that the trial court did not err in admitting the testimony of Coleman and Wilson was not contrary to or an unreasonable application of clearly established federal law. The Court therefore finds that Petitioner's second ground for habeas relief lacks merit.
In his third ground for habeas relief, Petitioner argues that the trial court erred by admitting autopsy photos. Specifically, he claims that the three photos showed the victim on the autopsy table with his skin pulled away and internal organs exposed, which caused three jurors to cry and the judge to remark that the photos "obviously affected" the jurors. Petitioner raised this claim in state court. According to the appellate court's decision, after introducing the first photo, Petitioner's attorney approached the bench and stated, "[i]t's clear that at least three jurors are openly crying. Several others aren't looking at the pictures and looking disgusted by the whole thing, and several are looking down." (Resp't's Ex. 6 p. 11) The trial judge responded, "I wouldn't say disgusted, but they are obviously affected." (Id.) The trial court admitted the next two photos but did not publish them. (Id. at p. 12) On appeal, Petitioner argued that the "photographs were unduly gruesome and served only to arouse the emotions of the jury and prejudice the jury against him in violation of his right to an impartial jury." (Id.) In addition, Petitioner argued that the photos were unnecessary because Dr. Nanduri, the medical examiner, testified to the extent of the victim's injuries. (Id.)
The Missouri Court of Appeals found the trial court did not abuse its discretion in admitting the photos:
(Resp't's Ex. 6 pp. 12-13)
As stated above, admissibility of evidence is a matter of state law, and the Court reviews such admissibility in habeas cases "only to determine whether an alleged error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process." Rousan, 436 F.3d at 958 (internal quotation omitted). The Court finds that Petitioner has failed to demonstrate that "the alleged improprieties were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair." Anderson, 44 F.3d at 679 (quotation omitted). The autopsy photos were relevant and probative in showing the internal injuries sustained by the victim, and they corroborated the testimony of the medical examiner. See Rousan, 436 F.3d at 959 (finding the district court did not err in denying habeas relief where the photographs corroborated the testimony of a key witness for the state, assisted the jury in understanding the pathologist's testimony, and assist the state's proof of deliberation); Kuntzelman v. Black, 774 F.2d 291, 292-93 (8th Cir. 1985) (finding no constitutional error in the admission of "flagrantly gruesome" photographs where the photos "were at least arguably relevant and probative in showing the identity and condition of the deceased, the location of the wound, and the intent of [petitioner]"). Thus, the decision of the Missouri Court of Appeals, finding no error in the admission of the autopsy photos, was not contrary to or an unreasonable application of clearly established federal law. Petitioner's third ground for habeas relief fails on the merits.
Next, Petitioner claims that the trial court erred in denying Petitioner's motion for a new trial because based on the trial court's failure to require the State to proceed with either the charge of first/second degree murder or abuse of a child resulting in death. Petitioner contends that both charges involved the same elements, and the act Petitioner was convicted of constituted a continuous course of conduct, thus violating his right against double jeopardy. Petitioner raised this claim on direct appeal, and the Missouri Court of Appeals no abuse of discretion. (Resp't's Ex. 6 p. 16) Specifically, the appellate court found:
(Resp't's Ex. 6 pp. 15-16)
"The Fifth Amendment's Double Jeopardy Clause provides a criminal defendant with three protections." Dodge v. Robinson, 625 F.3d 1014, 1017 (8th Cir. 2010) (citation omitted). "The first two guard against successive prosecution, either after an acquittal or after a conviction," and the third protects against cumulative punishment. Id. While Petitioner does not specify which protection he is invoking, the Court notes that Petitioner was not subjected to successive prosecution. Thus, the Court presumes that Petitioner challenges his sentences.
However, where cumulative punishment is imposed for violations of state law, whether the legislature authorizes such punishment is a question of state law. Id. "The Supreme Court repeatedly has held, in the double-jeopardy context, that whether a state legislature intends cumulative punishment for two offenses is an issue of state law, over which state courts have final authority." Id. Thus, courts are bound by the Missouri court's construction of Missouri state statutes. Id. Missouri courts have held that the offenses of second degree murder and abuse of a child under the respective Missouri statutes each have "an element that the other does not and, thus, constitute separate offenses" under the Blockburger test. State v. Gray, 347 S.W.3d 490, 507 (Mo. Ct. App. 2011).
Therefore, "to the extent that the Missouri appellate court relied on its interpretation of Missouri law, upon concluding that the Missouri legislature intended cumulative punishment for murder and abuse of a child, issue concerning the interpretation of state law are not cognizable in federal habeas review." Dixon v. Steele, No. 4:13CV691SNLJ (NCC), 2016 WL 4427212, at *5 (E.D. Mo. June 15, 2016). Further, in analyzing Petitioner's double jeopardy claim, the Missouri appellate court properly applied the Blockburger same-elements test and considered legislative intent. Thus, the Court finds that the decision of the state court finding no violation of the Double Jeopardy Clause is not contrary to, and is a reasonable application of, federal law. Ground four in Petitioner's habeas petition is therefore without merit. Id.
Petitioner argues in his fifth ground for habeas relief that trial counsel was ineffective for failing to call a potential witness, Tayrean Smith ("Smith"). Petitioner raised this claim in his Rule 29.15 post-conviction motion and on post-conviction appeal. Specifically, Petitioner contends that trial counsel was ineffective for failing to call Smith as a witness during trial because Smith would have testified that he never saw Petitioner interact inappropriately with the victim. The state court addressed this claim and found that counsel was not ineffective. The appellate court noted, "Counsel's decision not to call a witness is presumptively a matter of trial strategy and will not support a claim of ineffectiveness unless the movant clearly establishes otherwise. . . . If a potential witness's testimony would not unqualifiedly support the defendant's case, the failure to call the witness does not constitute ineffective assistance." Moore, 431 S.W.3d at 19 (citations omitted). The Missouri Court of Appeals quoted Strickland in addressing the reasonableness of counsel's investigation and found:
Id. at 19-20.
To establish ineffective assistance of counsel, Petitioner must demonstrate that counsel's performance was "deficient" and that such deficient performance "prejudiced" his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Judicial scrutiny of counsel's performance is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide range ofreasonable professional judgment." Bucklew, 436 F.3d at 1016 (citing Strickland, 466 U.S. at 689). The prejudice prong requires Petitioner to prove that but for counsel's deficiency, the outcome of his trial would have been different absent counsel's error. Id. at 694; Bucklew, 436 F.3d at 1016. In other words, Petitioner must demonstrate "that counsel's errors were so serious that they rendered the proceedings fundamentally unfair or the result unreliable." Bucklew, 436 F.3d at 1016 (citation omitted).
As previously stated, habeas relief may not be granted unless the claim adjudicated on the merits in state court "`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.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. § 2254(d)(1)). "Therefore, we will not grant [petitioner's] habeas petition unless the state court's decision in this case was contrary to, or an unreasonable application of, the standard articulated by the Supreme Court in Strickland." Id.; see also Bucklew, 436 F.3d at 1016 (where state court correctly identifies Strickland as the controlling authority, federal courts "address whether the state court unreasonably applied that precedent and whether the state court unreasonably determined the facts in light of the evidence presented.").
Here, Petitioner has failed to demonstrate that trial counsel's performance was deficient and prejudiced the defense. The record shows that Petitioner mentioned Smith as someone who was frequently present around Petitioner and the victim and could have testified that Petitioner was not abusive toward the victim. (Resp't's Ex. 9 p. 6) However, despite trying to speak with Smith, counsel was unable to contact him via information provided by Petitioner. (Id. at pp. 9-12) Smith testified at the post-conviction hearing that he was at the apartment with Petitioner and the victim all the time and never saw Petitioner hit the victim. (Resp't's Ex. 8 pp. 21-22) He further stated that he never heard from Petitioner's attorney but that Smith was present in the courtroom during the trial yet never informed counsel that he was there. (Id. at pp. 29-31) The record also reflects that Smith was not present at the time of the incident because he worked during the day and stayed at his girlfriend's home at night. (Id. at pp. 32-33)
Petitioner is unable to demonstrate that counsel's performance was deficient for failing to investigate and call Smith as a defense witness. Counsel diligently and reasonably attempted to contact Smith; however, Petitioner did not provide additional contact information for Smith, despite the fact that Smith was present in the courtroom during the trial. Further, Smith was not in the apartment on the date of the incident and was unable to speak to what occurred between Petitioner and the victim. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," and here, Petitioner has failed to overcome the presumption that counsel's failure to call Smith "might be considered sound trial strategy." Strickland, 466 U.S. at 690 (internal quotation marks omitted).
Furthermore, Petitioner is unable to demonstrate the requisite prejudice. The evidence against Petitioner was compelling, including physical evidence, medical evidence, and Petitioner's apologies. Petitioner has not shown that Smith's testimony would have provided a viable defense or otherwise would have changed the outcome of the trial. Bucklew, 436 F.3d at 1016; see also Deck v. Steele, 249 F.Supp.3d 991, 1029 (E.D. Mo. 2017) (finding that because petitioner could not show that counsel's failure to investigate or call a witness to testify at trial prejudiced his defense, he could not demonstrate ineffective assistance of counsel). Thus, the Court finds that the state court reasonably applied Strickland in determining that counsel was not ineffective. Id. at 1021. Petitioner's fifth ground lacks merit and will be denied.
In his sixth and final ground, Petitioner claims that trial counsel was ineffective for failing to present theory that S.B.'s injuries were caused by someone else. Petitioner argues that counsel failed to address with the doctors that the bruises on the victim were not necessarily caused by a large person such as Petitioner. Petitioner raised this claim in his motion for postconviction relief and on appeal, arguing that the bruises could have been caused by the victim's mother or someone performing CPR. The Missouri Court of Appeals addressed this claim and found that counsel's choice was a matter of trial strategy and was not unreasonable. The appellate court noted the medical testimony that established the bruises were caused by a person oflarge stature such as Petitioner. Moore, 431 S.W.3d at 21. The state court further noted that defense counsel asked the medical examiner whether the bruising could be consistent with a smaller fist or hand, to which the witness responded, "I don't think so." Id. In addition, the appellate court found:
Id.
The Court agrees that trial counsel's decision not to pursue a defense that someone else caused the bruising was reasonable trial strategy. The record shows that the victim's mother was at work when the victim was injured. Further, there was no evidence that CPR caused the fatal injuries. As stated above, the evidence pointed to Petitioner as the person that caused the victim's death. "Post-conviction counsel cannot be ineffective for failing to pursue a nonmeritorious claim." Deck, 249 F. Supp. 3d at 1029. "Based on the foregoing and the other evidence of record, and considering defense counsel's conduct based on his perspective at the time, [the Court] find[s] that the strong presumption that defense counsel's performance `falls within the wide range of reasonable professional assistance' is not overcome." Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004) (quoting Strickland, 466 U.S. at 689). Because counsel's performance was not deficient, the Court need not consider the prejudice prong of Strickland. Id. Thus, the Court finds that the state court's determination that "[d]efense counsel's decision to abandon a non-viable defense theory was reasonable trial strategy" and was not ineffective assistance was not contrary to, or an unreasonable application of, the standard articulated by the Supreme Court in Strickland. Moore, 431 S.W.3d at 21. Petitioner's sixth ground for habeas relief will be denied for lack of merit.
Accordingly,
