Allison v. Lawrence, Case No. 13-0408-CV-W-BCW-P

• Decision Date: 26 July 2013
• Docket Number: Case No. 13-0408-CV-W-BCW-P
• Parties: ROBERT M. ALLISON, Petitioner, v. SCOTT LAWRENCE, Respondent.
• Court: U.S. District Court — Western District of Missouri

ROBERT M. ALLISON, Petitioner,

v.SCOTT LAWRENCE, Respondent.

Case No. 13-0408-CV-W-BCW-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Dated: July 26, 2013

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS

AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Robert M. Allison, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on April 8, 2013, seeking to challenge his 2008 convictions and sentences for seven counts of delivery of a controlled substance, which were entered in the Circuit Court of Boone County, Missouri.

The petition raises eight grounds for relief: (1) that the trial court erred in failing to suppress evidence obtained pursuant to a valid warrant; (2) that the trial court abused its discretion when it overruled petitioner's objection to certain out of court statements; (3) that the trial court erred in allowing the prosecution to question certain witnesses about prior bad acts; (4) that the trial court erred in finding petitioner guilty because there was insufficient evidence; (5) that trial counsel was ineffective for failing to allow petitioner to testify on his own behalf; (6) that petitioner's rights under the Fourteenth Amendment were violated when the prosecution withheld criminal records and a possible deal; (7) that petitioner's rights under the Sixth and Fourteenth Amendments were violated when he was not granted the right to confront a witness; and (8) that petitioner was denied a fair trial. Respondent contends that grounds 1, 2, 3, 4, and 5, are withoutmerit, and the Court notes that grounds 6, 7, and 8 are procedurally defaulted.

SUMMARY OF THE FACTS

On direct appeal, the Missouri Court of Appeals summarized the facts as follows:

Detective Ford was an undercover narcotics officer for the Fulton Police Department who used an undercover identity. [footnote omitted] On June 19, 2004, Detective Ford and a confidential informant ("CI") met [petitioner] at the Post Office Bar & Grill. There Detective Ford agreed to buy three and a half grams of methamphetamine from [petitioner] for $200. The three went to [petitioner's] truck, and [petitioner] drove them about a block away. [Petitioner] then stopped his car and produced a softball-size bag of methamphetamine from the center console of his truck. [Petitioner] retrieved three and a half grams of methamphetamine from the bag, rolled the drugs up in a dollar bill, and gave the drugs to the CI. [Petitioner] returned the men to the bar parking lot. The CI later gave the drugs to Detective Ford. Subsequent testing confirmed the substance was methamphetamine, a controlled substance.

On April 26, 2005, Detective Ford and the CI met with [petitioner] at [petitioner's] auto body shop, K & R Garage. The meeting was scheduled after [petitioner] contacted the CI to ask if he "wanted any medicine." The CI reported the call to Detective Ford who told the CI to call [petitioner] back to arrange a meeting. At the meeting, [petitioner] gave the CI ten pills. Subsequent testing showed the pills to be oxycodone, a controlled substance.

On May 24, 2005, Detective Ford and the CI again met with [petitioner] at his auto body shop. [Petitioner] told them that he had forty morphine pills that he did not want. Detective Ford offered to buy the pills from [petitioner]. [Petitioner] accepted Detective Ford's offer and retrieved two bags containing the pills. Subsequent testing confirmed the pills were morphine, a controlled substance.

On June 1, 2005, Detective Ford and the CI met with [petitioner] at [petitioner's] apartment in Auxvasse, Missouri. [Petitioner] offered Vicodin to both men. Both men accepted the pills. Subsequent testing confirmed the pills were Vicodin, which contains hydrocodone, a controlled substance.

On July 18, 2005, Detective Ford and the CI met with [petitioner] at1382 Blue Ridge. [footnote omitted] They discussed purchasing methamphetamine from [petitioner]. [Petitioner] did not have any methamphetamine. [Petitioner] offered OxyContin pills to both men, which both men accepted. Subsequent testing confirmed the pills to be oxycodone, a form of OxyContin, a controlled substance.

On July 29, 2005, Detective Ford and the CI met with [petitioner] at [petitioner's] apartment to purchase methamphetamine. Cassie Allison, a minor, was present. [Petitioner], Detective Ford, and the CI went into [petitioner's] bedroom and closed the door. [Petitioner] retrieved a bag from his closet and set it on top of a dresser. [Petitioner] pulled out a large triple-beam scale. [Petitioner] then retrieved a bag of methamphetamine and measured out an ounce. The purchase price was $1,200. Detective Ford told [petitioner] that he only had $800. [Petitioner] replied that he trusted Detective Ford. Detective Ford told [petitioner] that he would pay him the balance the next day. Detective Ford returned the next day with the $400 balance. Subsequent testing confirmed the substance purchased at [petitioner's] apartment was 27.8 grams of methamphetamine.

On September 1, 2005, Detective Ford, the CI, and [petitioner] met at the CI's apartment in Fulton. Detective Ford agreed to purchase two pounds of marijuana from [petitioner] for $1,350. Detective Ford went to his vehicle, retrieved the money, and gave it to [petitioner]. [Petitioner] then made a phone call because he did not have the marijuana with him. [Petitioner] told Detective Ford to drive to [petitioner's] apartment to pick up the marijuana. Detective Ford did so. Cassie Allison was waiting for him. She produced a block of marijuana from under her shirt and handed it to Detective Ford. Subsequent testing confirmed the substance to be 885 grams of marijuana, a controlled substance.

[Petitioner] was charged as a prior and persistent offender with nine counts of the class B felony of delivery of a controlled substance in Callaway County. A motion for change of venue was granted, and venue was moved to Boone County. Counts 2 and 8 were dismissed by the State prior to trial. [footnote omitted]

Following a jury trial, [petitioner] was found guilty of the remaining seven counts. The trial court sentenced [petitioner] to twenty years on each count, to run concurrently.

(Doc. No. 7, Ex. 3, pp. 2-4).

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 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).¹ Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

GROUND 1

In ground 1, petitioner claims that the trial court erred in admitting evidence that allegedly was obtained in violation of the Fourth Amendment.

Petitioner's ground for relief is barred from federal habeas corpus review by the doctrine of Stone v. Powell, 428 U.S. 465 (1976). "[W]here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id., at 482. See also Willett v. Lockhart, 37 F.3d 1265, 1271-73 (8th Cir. 1994) (adopting two-part Second Circuit test for Stone bar).

Because the record reflects that the state provided petitioner with an opportunity to fullyand fairly litigate his Fourth Amendment claim, the bar of Stone v. Powell applies here, and ground 1 will be denied.

GROUNDS 2, 3, & 4

In ground 2, petitioner contends that the trial court abused its discretion when it overruled petitioner's objection to certain out of court statements. In ground 3, petitioner contends that the trial court erred in allowing the prosecution to question certain witnesses about prior bad acts. In ground 4, petitioner contends that the trial court erred in finding petitioner guilty of Count 2 because there was insufficient evidence. Review of claims regarding evidence at trial is extremely deferential to the state courts. Constitutionally sufficient evidence exists to support a conviction if, "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).

On direct appeal, the Missouri Court of Appeals held as follows:

Point II

In his second point on appeal, [petitioner] argues that the trial court erred in overruling his objection to Detective Ford's testimony relaying a statement made to him by the CI. [Petitioner] maintains that the CI's out of court statement was testimonial hearsay which violated his rights under the Confrontation Clause because the CI was not available for cross examination.

Standard of Review

A trial court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. State v. Coats, 835 S.W.2d 430, 433 (Mo. App. E.D. 1992). An abuse of discretion only exists if "a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007) (citation omitted). However, whether [petitioner's] constitutional rights under theConfrontation Clause were violated is a question of law that we review de novo.

Analysis

At trial Ford testified regarding events that took place on April 25, 2005, and stated:

A: I had my confidential informant with me again.

Q: Okay. In your interaction with [petitioner] on that

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