GARY A. FENNER, District Judge.
Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center in Cameron, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 convictions and sentences for fourteen counts of rape, six counts of sodomy, four counts of attempted rape, three counts of first-degree robbery, and four counts of first-degree assault, which were entered in the Circuit Court of Jackson County, Missouri. Petitioner's convictions were affirmed on direct appeal. Resp. Ex. E. Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied following an evidentiary hearing (Resp. Ex. F, pp. 91-103), and that denial was affirmed on appeal therefrom (Resp. Ex. I).
Petitioner raises five grounds for relief:
In affirming petitioner's convictions and sentences, the Missouri Court of Appeals, Western District, set forth the following facts:
Resp. Ex. E, pp. 3-4 (footnotes omitted).
Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254(e)(1).
Respondent contends that petitioner procedurally defaulted Ground 1(a) by not raising it on direct appeal and procedurally defaulted Grounds 1(b), 2, and 3 by not raising them on appeal from the denial of his Rule 29.15 post-conviction motion. Doc. No. 9, pp. 2-3.
"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). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" before presenting those issues in an application for habeas relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (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, 54 F.3d at 1381.
As respondent argues, petitioner failed to raise Ground 1(a) on direct appeal and failed to assert Grounds 1(b), 2, and 3 in his post-conviction appeal. Resp. Ex. C; Resp. Ex. G. As a result, Grounds 1(a), 1(b), 2, and 3 are procedurally defaulted. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997) (recognizing that failure to present claims in the Missouri Courts at any stage of direct appeal or post-conviction proceedings is a procedural default), cert. denied, 523 U.S. 1010 (1998). 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).
In reply, petitioner argues that direct appeal counsel was ineffective for not raising Ground 1(a) on direct appeal. Doc. No. 16, p. 2. Similarly, petitioner asserts that his post-conviction appeal counsel was ineffective for not raising Grounds 1(b), 2, and 3 in his post-conviction appeal. Id. Petitioner cites to Martinez v. Ryan, 132 S.Ct. 1309 (2012), to support his claims.
As to petitioner's claim that post-conviction appellate counsel's ineffective assistance excuses his default in Grounds 1(b), 2, and 3, although Martinez recognized that ineffective assistance of postconviction counsel could constitute cause for the failure to raise a claim in an initial post-conviction proceeding, it did not change the rule that ineffective assistance of post-conviction appellate counsel could not constitute cause to excuse a state procedural default. Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 2012) ("Martinez offers no support, however, for the contention that the failure to preserve claims on appeal from a postconviction proceeding can constitute cause."); see also Coleman v. Thompson, 501 U.S. 722, 752-57 (1990) (holding that ineffective assistance of post-conviction appeal counsel does not constitute legally sufficient cause permitting a claim to be raised in federal court). Thus, Martinez does not apply to Grounds 1(b), 2 and 3, and petitioner fails to establish cause for his procedural default of these grounds.
As to petitioner's claim that the ineffective assistance of direct appeal counsel caused the default of Ground 1(a), a claim of ineffective assistance of direct appeal counsel must "be initially `presented to the state courts as an independent claim before it may be used to establish cause for a procedural default' in a federal habeas proceeding." Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003), cert. denied 541 U.S. 947 (2004) (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). Petitioner did not assert a claim of ineffective assistance of direct appeal counsel in the state courts relating to counsel's failure to raise an Ex Post Facto Clause violation on appeal. Resp. Ex. F, pp. 26-89; Resp. Ex. G. Even if petitioner argues under Martinez that post-conviction counsel was ineffective for not asserting a claim that direct appeal counsel was ineffective for not raising Ground 1(a) on appeal, the United States Court of Appeals for the Eighth Circuit and other courts decline to extend Martinez to claims alleging ineffective assistance of counsel on direct appeal. Dansby v. Hobbs, 766 F.3d 809, 833-34 (8th Cir. 2014); see also Reed v. Stephens, 739 F.3d 753, 778 n. 16 (5th Cir. 2014); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012). In any event, petitioner's claim that direct appeal counsel was ineffective for failing to raise Ground 1(a) is conclusory. See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir. 1990) ("petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified"). Consequently, petitioner's allegation of ineffective assistance of direct appeal counsel cannot excuse the procedural default of Ground 1(a).
Petitioner fails also 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). As a result, Grounds 1(a), 1(b), 2, and 3 are procedurally defaulted and will be denied.
In Ground 4, petitioner claims that trial counsel was ineffective for failing to let petitioner testify on his own behalf. Doc. No. 1, p. 9. In order for petitioner to successfully assert a claim for ineffective assistance of trial counsel, petitioner must demonstrate that his attorney's performance "fell below an objective standard of reasonableness" and that "the deficient performance" actually prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "A court considering a claim of ineffective assistance of counsel must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). Petitioner must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
To satisfy the prejudice prong, a petitioner must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. Moreover, this Court may not grant habeas relief unless the state appellate court's decision "was contrary to, or an unreasonable application of, the standard articulated by the [United States] Supreme Court in Strickland." Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999), cert. denied, 530 U.S. 1265 (2000).
In affirming the denial of petitioner's post-conviction motion, the Missouri Court of Appeals, Western District, set forth the Strickland standard and denied Ground 4 as follows:
Resp. Ex. I, pp. 5-8.
The findings of the Missouri Court of Appeals, Western District, are reasonable and are entitled to deference under Section 2254(d). In holding that Ground 4 did not merit post-conviction relief, the state appellate court identified and applied reasonably the Strickland standard and made a reasonable determination based on the record that petitioner knowingly, voluntarily, and intelligently waived his right to testify. Resp. Ex. I, pp. 5-8. As to the state appellate court's finding that trial counsel gave reasonably strategic advice that petitioner not testify, "courts must resist the temptation to second-guess a lawyer's trial strategy; the lawyer makes choices based on the law as it appears at the time, the facts as disclosed . . . and his best judgment as to the attitudes and sympathies of judge and jury." Blackmon v. White, 825 F.2d 1263, 1265 (8th Cir. 1987); see also Shaw v. U.S., 24 F.3d 1040, 1042 (8th Cir. 1994) (trial counsel's reasonable trial strategies cannot constitute ineffective assistance, even if they are unsuccessful); Henderson v. Norris, 118 F.3d 1283, 1287-88 (8th Cir. 1997) (matters of trial strategy presumed correct), cert. denied, 522 U.S. 1129 (1998).
Because the state court's determinations did not result 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 in "a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," see 28 U.S.C. §2254(d)(1) and (2), Ground 4 will be denied.
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
