Clemons v. Steele

Decision Date28 November 2011
Docket NumberCase No. 4:11CV379 JCH
PartiesREGINALD CLEMONS, Petitioner, v. TROY STEELE, Respondent.
CourtU.S. District Court — Eastern District of Missouri
MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner Reginald Clemons' pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

On April 2, 2007, a jury in the Circuit Court of St. Genevieve County, Missouri, found Petitioner guilty of Committing Violence to a Department of Corrections Employee. (Resp. Ex. B, P. 251). On June 19, 2007, Petitioner was sentenced to fifteen years imprisonment, with said sentence to run consecutive to the sentence he was serving at the time. (Id.) Petitioner thereafter appealed to the Missouri Court of Appeals, Eastern District. (Id., P. 253). The Missouri appellate court affirmed the trial court's judgment on May 13, 2008. (Resp. Ex. E).

On October 15, 2008, Petitioner filed a pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence of the Circuit Court of St. Genevieve County. (Resp. Ex. F, PP. 5-14). Counsel was appointed to represent Petitioner that same day (Id., P. 16), and on January 14, 2009, an Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence and Request for Evidentiary Hearing was filed. (Id., PP. 18-46). The trial court denied the motion without anevidentiary hearing. (Id., PP. 48-56). The Missouri Court of Appeals affirmed the denial of Petitioner's motion. (Resp. Ex. J).

Petitioner is currently incarcerated at the Potosi Correctional Center in Mineral Point, Missouri. As the Court construes the instant petition for writ of habeas corpus, Petitioner raises the following five claims for relief:

(1) That the trial court erred in failing to provide a self-defense instruction to the jury;
(2) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to request that a self-defense instruction be given to the jury;
(3) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to improper argument made during the prosecutor's closing statement;
(4) That Petitioner was denied the right to confront his accuser; and
(5) That Petitioner was denied his sixth amendment right to have the jury provide a sentence recommendation.

(Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("§ 2254 Petition"), PP. 6-12).

DISCUSSION
A. Procedural Default
1. Ground 1

As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in failing to provide a self-defense instruction to the jury. (§ 2254 Petition, PP. 6-7). The Court's review of the record reveals that Petitioner failed to pursue this claim on direct appeal from his conviction and sentence.

A claim must be presented at each step of the judicial process in state court to avoid procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.), citing Benson v. State, 611 S.W.2d538, 541 (Mo. App. 1980), cert. denied, 513 U.S. 983 (1994). Because Petitioner failed to raise this claim on direct appeal, the claim is defaulted and Petitioner is procedurally barred from pursuing it in this federal habeas proceeding. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert. denied, 515 U.S. 1163 (1995). Therefore, this Court cannot reach the merits of the claim absent a showing of cause and prejudice, or a demonstration "that failure to consider the claim[] will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Forest, 52 F.3d at 719; Keithley, 43 F.3d at 1217.

In his § 2254 petition, Petitioner apparently attempts to demonstrate cause for his failure to raise the claim in state court, by claiming his appellate attorneys refused to raise the claim on direct appeal. (§ 2254 Petition, P. 6). This Court need not decide whether Petitioner's allegation is sufficient to establish cause for the procedural default, however, because Petitioner fails to establish he suffered the requisite prejudice as a result of the alleged error. See infra, section B(1). In addition, because Petitioner makes no claim of actual innocence, he cannot satisfy the "fundamental miscarriage of justice" exception to the required showing of cause and prejudice. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Washington v. Delo, 51 F.3d 756, 760-761 (8th Cir.), cert. denied, 516 U.S. 876 (1995). Therefore, the claim raised in Ground 1 of the instant petition is procedurally barred and must be denied.

2. Grounds 4, 5

As stated above, in Ground 4 of his § 2254 petition Petitioner asserts he was denied the right to confront his accuser. (§ 2254 Petition, PP. 9-10). In Ground 5, Petitioner asserts he was denied his sixth amendment right to have the jury provide a sentence recommendation. (Id., PP. 11-12). A review of the record reveals that Petitioner failed to pursue his fourth and fifth grounds for relief ondirect appeal from his conviction and sentence, in his amended 29.15 motion, or on appeal from the denial of that motion.

As noted above, a claim must be presented at each step of the judicial process in state court to avoid procedural default. Jolly, 28 F.3d at 53. Because Petitioner failed to raise these claims on either direct appeal or through the post-conviction motion process, the claims are defaulted and Petitioner is procedurally barred from pursuing them in this federal habeas proceeding. Coleman, 501 U.S. at 731-32; Forest, 52 F.3d at 719; Keithley, 43 F.3d at 1217. See also Jolly, 28 F.3d at 53 (citation omitted) ("Failure to raise a claim on appeal from the denial of a post-conviction motion erects a procedural bar to federal habeas review."). Therefore, this Court cannot reach the merits of the claims absent a showing of cause and prejudice, or a demonstration "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Forest, 52 F.3d at 719; Keithley, 43 F.3d at 1217. Petitioner has not shown cause for his failure to raise the claims in state court.1 In addition, because Petitioner makes no claim of actual innocence, he cannot satisfy the "fundamental miscarriage of justice" exception to the required showing of cause and prejudice. Schlup, 513 U.S. 298; Washington, 51 F.3d at 760-761. Therefore, the claims raised in Grounds 4 and 5 of the instant petition are procedurally barred and must be denied.

B. Claims Addressed on the Merits
1. Ground 2

As stated above, in Ground 2 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to request that a self-defense instruction be given to the jury. (§ 2254 Petition, PP. 6-7). Petitioner raised this claim in his 29.15 motion for pos-conviction relief, and the court denied the claim as follows:

5. a. To prevail on a motion for post-conviction relief on a claim of ineffective assistance of counsel, movant2 must prove his allegation by a preponderance of the evidence, and must show 1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and 2) that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687-689 (1984), Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Counsel's performance will not be deemed ineffective unless a Movant satisfies both elements of the Strickland test. Helmig v. State, 42 S.W.3d 658, 667 (Mo. App. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). On a claim of ineffective assistance of counsel, there is a presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment. Kluck v. State, 30 S.W.3d 872 (Mo. App. 2000)....
6. Secondly, Movant claims that trial counsel provided ineffective assistance of counsel when he failed to submit a self-defense instruction for consideration by the jury. Movant claims that had trial counsel submitted a self-defense instruction, the trial court would have given it and there is a reasonable probability that the outcome of the trial would have been different.
a. This is a claim of instructional error disguised as a claim of ineffective assistance of counsel. "Claims of instructional error are matters for direct appeal and are not cognizable on motion for post conviction relief." Morrow v. State, 21 S.W.3d 819 (Mo banc 2000). This argument is not proper in a post conviction motion.
b. Movant also cites MAI 306.06, the definition of self-defense, stating that "a person can lawfully use force to protect himself against an unlawful attack." MAI 306.06. Mr. Clemons was an inmate who was charged with violence to an employee of the Department ofCorrections in violation of Missouri Revised Statutes Section 217.385. Section 217.405 describes defender abuse and states "no employee of the department [of corrections] shall use any physical force on an offender except that the employee shall have the right to use such physical force as is necessary to...suppress an individual or group revolt or insurrection, enforce discipline or to secure the offender." Mo.Rev.Stat. § 217.405.3. In this case, the officer attempted to use force to transfer the Movant to another location and to secure the offender. At no point in time did the officer's actions elevate to the level of an unlawful attack or was evidence presented justifying the use of a self-defense instruction.
c. In Wilson v. State, 177 S.W.3d 852, 854-855 (Mo. App. E.D. 2005) the Eastern District explained the test for using self-defense as follows:
d. The use of force in self-defense is justified if a defendant can show (1) an absence of aggression on his part; (2) reasonable grounds for him to believe he
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