Osborne v. Purkett, 04-1714.

Citation411 F.3d 911
Decision Date16 June 2005
Docket NumberNo. 04-1714.,04-1714.
PartiesRobert OSBORNE, Appellant, v. James D. PURKETT, Superintendent, Eastern Missouri Correctional Center, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Ronald L. Jurgeson, argued, Lee's Summit, MO, for appellant.

Cheryl A. Caponegro, argued, Assistant Missouri Attorney General (Lisa J. Berry, Assistant Missouri Attorney General, on the brief), for appellee.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

Robert Osborne was convicted of rape following a jury trial in Missouri state court. His conviction and the denial of his motion for post-trial relief were upheld by the Missouri Court of Appeals. Osborne then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000). The District Court1 denied the petition without a hearing, and Osborne now appeals. We affirm.

I.

Osborne was tried in the Circuit Court of Buchanan County on May 5-7, 1998. The state's principal witness was seventeen-year-old Ryann Summerford, Osborne's second cousin. Summerford testified that on July 21, 1994, when she was thirteen years old, Osborne raped her in her home. That evening, after other family members had gone to bed, Summerford went into the living room where Osborne was watching television and laid herself down on the couch. Osborne went to the couch and raped her. The next morning, Osborne told Summerford that he was sorry for raping her and that he had been drinking at the time.

Summerford testified that the rape was not the only time that Osborne sexually assaulted her. On at least two earlier occasions, Osborne laid beside her and masturbated against her. On an occasion following the rape, Osborne attempted to sodomize her while she was doing laundry in the basement of the house. Osborne approached Summerford from behind, took down her pants, and attempted to insert his penis into her anus. When he was unable to do so, Osborne told her that he "needed to loosen [her] up" and inserted a broom stick into her anus. Trial Tr. at 239. When Summerford began to cry, Osborne did not proceed with the act.

Summerford reported the rape in February 1997. On March 13, 1997, Robin Murphy, a nurse practitioner, performed a Sexual Abuse Forensic Examination (SAFE examination) of Summerford. Murphy testified that she found scarring on Summerford's hymen and a rolled edge on Summerford's posterior fourchet, the tissue below the hymen. According to Murphy, these findings are consistent with Summerford having had sexual intercourse.

The jury convicted Osborne of rape on May 7, 1998. The Missouri Court of Appeals affirmed the conviction. Osborne sought post-conviction relief under Missouri Supreme Court Rule 29.15. The Circuit Court of Buchanan County denied Osborne's motion, and the Missouri Court of Appeals affirmed. Osborne v. State, 80 S.W.3d 538 (Mo.Ct.App.2002). Osborne then filed his petition for writ of habeas corpus in federal court, which the District Court denied. This appeal followed.

II.

A state prisoner who believes that he is incarcerated in violation of the Constitution or laws of the United States may file a petition for writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254 (2000).2 In the interests of finality and federalism, however, federal courts are constrained by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to exercise only a "limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir.), cert. denied, 540 U.S. 1059, 124 S.Ct. 833, 157 L.Ed.2d 716 (2003). A federal court may not grant a writ of habeas corpus 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." 28 U.S.C. § 2254(d)(1) (2000).

A state-court decision is "contrary to" clearly established federal law if it "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 120 S.Ct. 1495. As noted by the Supreme Court, "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." Id. at 411, 120 S.Ct. 1495 (emphasis added). "Rather, that application must also be unreasonable." Id. (emphasis added). In other words, a federal court may not grant the petition unless the state-court decision, viewed objectively and on the merits, cannot be justified under existing Supreme Court precedent. James v. Bowersox, 187 F.3d 866, 869 (8th Cir.1999), cert. denied, 528 U.S. 1143, 120 S.Ct. 994, 145 L.Ed.2d 942 (2000).

When a district court denies a habeas petition, we review the district court's factual findings for clear error and its legal conclusions de novo. Johnston v. Luebbers, 288 F.3d 1048, 1051 (8th Cir.2002) cert. denied, 537 U.S. 1166, 123 S.Ct. 983, 154 L.Ed.2d 904 (2003).

III.

Pursuant to the certificate of appealability issued by the District Court, Osborne raises four issues on appeal: (1) whether the District Court erred in denying Osborne's request for an evidentiary hearing, (2) whether the District Court erred in denying habeas corpus relief based on the trial court's admission of evidence of other sexual offenses committed by Osborne against Summerford, (3) whether the District Court erred in denying habeas corpus relief based on Osborne's claim that his trial counsel was ineffective for failing to impeach a state witness, (4) whether the District Court erred in denying habeas corpus relief based on Osborne's claim that his trial counsel was ineffective for failing to investigate other acts involving the penetration of Summerford by someone other than Osborne. We address each of these issues in turn, mindful of the standards discussed above.

A.

First, Osborne argues that the District Court erred by not granting him an evidentiary hearing to develop a factual record that Todd Shalz, Summerford's boyfriend, had engaged in sexual intercourse with Summerford before the SAFE examination was performed. Osborne sought to introduce an affidavit in the District Court from Shalz stating the same.3 Osborne asserts that, with this fact, he intended to show that the scarring found during the physical examination of Summerford was just as likely caused by Shalz than by Osborne.

We review the District Court's decision denying the evidentiary hearing for abuse of discretion. Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir.2002), cert. denied, 540 U.S. 893, 124 S.Ct. 233, 157 L.Ed.2d 168 (2003). Initially, we note that the District Court's discretion to grant the hearing was constrained by AEDPA.4 Pursuant to the statute, when a habeas petitioner "has failed to develop the factual basis of a claim" in the state courts, the federal district court may not hold an evidentiary hearing unless the applicant shows that the claim relies on "a factual predicate that could not have been previously discovered through the exercise of due diligence" and that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2254(e)(2) (2000).5 A failure to develop the factual basis of a claim in state-court proceedings is established, and the restrictions of § 2254(e)(2) apply, when "there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Diligence requires "at a minimum," that the petitioner "seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437, 120 S.Ct. 1479.

Osborne concedes that he did not present evidence in the state-court proceedings showing that Shalz and Summerford engaged in sexual intercourse. He argues that Shalz did not come forward with this fact until September 25, 2003, after the state-court proceedings had terminated. As the District Court noted, however, neither Osborne nor his attorneys exercised diligence in attempting to discover this fact at the time of the state-court proceedings. Prior to trial, Summerford revealed in her deposition that she had a sexual relationship with Shalz that involved digital vaginal penetration. This testimony put Osborne's attorneys on notice of Summerford's relationship with Shalz and its possible materiality. The sole indication that counsel made some effort to investigate the relationship was the trial attorney's testimony at the Rule 29.15 hearing that she asked Shalz whether he had intercourse with Summerford and Shalz replied that he could not recall. Given knowledge of the sexual nature of the relationship and its potential importance, a diligent attorney would have done more. At the very least, Osborne's attorneys in the state-court proceedings should have conducted a follow-up interview with Shalz to fully investigate his relationship with Summerford. Neither Osborne nor his attorneys "made a reasonable attempt, in light of the information available at the time, to investigate and pursue [the issue] in state court." Id. at 435, 120 S.Ct. 1479.

Because Osborne "failed to develop" in the state proceedings the fact that he seeks...

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