Colvin v. Bowersox
| Decision Date | 16 March 2015 |
| Docket Number | Case No. 4:11CV2242 ACL |
| Parties | STEVEN COLVIN, Petitioner, v. MICHAEL BOWERSOX, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the Petition of Steven Colvin for a Writ of Habeas Corpus under 28 U.S.C. § 2254.
Petitioner is presently incarcerated at the South Central Correctional Center in Licking, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of St. Louis County, Missouri. (Respt's Ex. B at 41-43.)
On June 2, 2008, a jury found Petitioner guilty of one count of second degree domestic assault and one count of felonious restraint. (Id. at 33-34.) Petitioner was sentenced as a persistent offender to two concurrent terms of fifteen years imprisonment. (Respt's Ex. A at 191.)
In his single point raised on direct appeal, Petitioner argued that the trial court erred in denying his Motion for Judgment of Acquittal and for entering judgment and sentence on the felonious restraint charge because the evidence was insufficient to support his conviction. (Respt's Ex. C at 6.) On June 23, 2009, the Missouri Court of Appeals affirmed Petitioner's convictions. (Respt's Ex. E.)
Petitioner filed a timely motion for post-conviction relief under Rule 29.15. (Respt's Ex. G at 3-13.) After the appointment of counsel, Petitioner filed an amended post-conviction reliefmotion and request for an evidentiary hearing. (Id. at 24-46.) In the amended motion, Petitioner raised the following claims: (1) he was denied due process of law and a fair trial when he was visibly restrained and shackled in the presence of the venire panel without good cause and in the absence of a case-specific determination of necessity by the trial judge; and (2) he was denied effective assistance of counsel when trial counsel failed to request to quash the venire panel after he learned that Petitioner had been visibly restrained and shackled in the presence of the venire panel for a period of approximately fifteen to twenty minutes. (Id.) The motion court denied Petitioner's claims after holding an evidentiary hearing. (Id. at 51-60.)
Petitioner raised the same two grounds for relief on appeal from the denial of post-conviction relief. (Respt's Ex. H.) The Missouri Court of Appeals affirmed the decision of the motion court. (Respt's Ex. J.)
Petitioner timely filed the instant Petition on December 27, 2011. (Doc. # 1.) Petitioner raises three grounds for relief: (1) the evidence was insufficient to support his conviction for felonious restraint; (2) the motion court erred in denying his post-conviction relief motion because he was visibly restrained and shackled within the courtroom and in the presence of the venire panel without good cause and in the absence of a case-specific determination of necessity by the trial judge; and (3) he received ineffective assistance of counsel when trial counsel failed to move to quash the venire panel after learning Petitioner had been in the presence of and seen by the venire panel in visible restraints and shackles. (Id.)
On February 23, 2012, Respondent filed a Response to Order to Show Cause, in which he argues that ground two is procedurally defaulted and all of Petitioner's grounds for relief fail on their merits. (Doc. # 9.) On March 9, 2012, Petitioner filed a Traverse, in which he provides further argument in support of his Petition. (Doc. # 11.)
Petitioner was at the home of D.B. Petitioner and D.B. had recently ended a five-year relationship. Petitioner told D.B. he wanted to stay the night, but D.B. told him that he could not. D.B. offered to drive Petitioner home. Petitioner accepted and rode in the passenger seat of D.B.'s car as D.B. drove.
During the drive, Petitioner began to hit D.B. in the head and face while calling her names. The car then hit a curb and stopped. Petitioner continued to hit D.B. D.B. reached for her keys in the ignition, but Petitioner grabbed her hand. D.B. jerked her hand lose from Petitioner's grip and exited the car. D.B. ran from the car, but her knee popped out of place and she fell to the ground. Petitioner caught up to D.B. and began hitting her again. D.B. yelled for help, and people in a nearby apartment building came out and called the police. Petitioner ran away, but was found and arrested soon after by police.
Petitioner was convicted by a jury of both second degree assault and felonious restraint. He was sentenced to two concurrent terms of 15 years.
A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:
28 U.S.C. § 2254(d).
The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362 (2000). With respect to the "contrary to" language, a majority of the Court held that a state court decision is contrary to clearly established federal law "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] Court has on a set of materially indistinguishable facts." Id. at 405. Under the "unreasonable application" prong of § 2254(d)(1), a writ may issue if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id. Thus, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 410. Although the Court failed to specifically define "objectively unreasonable," it observed that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410.
To avoid defaulting on a claim, a petitioner seeking federal habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and citations omitted) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his claims in each appropriate state court before seeking federal habeas review of the claim.Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not fairly presented to the state courts are procedurally defaulted. See id. at 1022.
Missouri requires the raising of constitutional claims at the first available opportunity. See In re J.M.N., 134 S.W.3d 58, 73 (Mo. Ct. App. 2004); In re T.E., 35 S.W.3d 497, 504 (Mo. Ct. App. 2001). Alleged trial errors, including constitutional claims of trial error, must be raised on direct appeal; for "[p]ost-conviction motions cannot be used as a substitute for direct appeal or to obtain a second appellate review." State v. Clark, 859 S.W.2d 782, 789 (Mo. Ct. App. 1993); accord Amrine v. State, 785 S.W.2d 531, 536 (Mo. 1990) (en banc); Allen v. State, 903 S.W.2.
Absent a showing of cause and prejudice or a miscarriage of justice, a federal habeas court may not reach the merits of a federal constitutional claim procedurally defaulted due to a petitioner's failure to follow applicable state rules in raising the claim in state court. Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992). "Cause for a procedural default exists where 'something external to the petitioner, something that cannot fairly be attributed to him[,]...' impeded [his] efforts to comply with the State's procedural rule." Maples v. Thomas, 132 S.Ct. 912, 922 (2012) (alternations in original) (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991).
Respondent contends that Petitioner's second ground for relief is procedurally defaulted, because it was not raised on direct appeal. In his second ground for relief, Petitioner argues that the motion court erred in denying his post-conviction relief motion, because he was visiblyshackled in the presence of the venire panel. Petitioner argued in his amended post-conviction relief motion that he was denied due process when he was visibly restrained in the presence of the venire panel and the jury on the first day of trial.
Petitioner also raised this claim in his appeal from the denial of post-conviction relief. The Missouri Court of Appeals held that Petitioner's claim was not cognizable. (Respt's Ex. J at 2.) The court noted that a post-conviction motion is not a substitute for a direct appeal. (Id.) The court stated that Petitioner's claim was apparent at trial, and Petitioner could have and should have raised the issue on direct appeal. (Id.)
Claims that have not been fairly presented to the state courts are procedurally defaulted and may not give rise to federal habeas relief unless the petitioner establishes "cause for not presenting the claim on...
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