Cross v. Lewis

Decision Date25 March 2020
Docket NumberNo. 4:16-CV-01800-SPM,4:16-CV-01800-SPM
PartiesDALE G. CROSS, Petitioner, v. JASON LEWIS, Respondent.
CourtU.S. District Court — Eastern District of Missouri

This matter is before the undersigned on the petition of Missouri state prisoner Dale G. Cross ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 6). For the following reasons, the petition will be denied.


In its order affirming Petitioner's convictions on direct appeal, the Missouri Court of Appeals described the underlying facts as follows:

Annette Cross-Sanford ("Cross-Sanford") is Defendant's sister. Cross-Sanford had two children with Andrew Day ("Victim"). Cross-Sanford lived in Lawrence, Kansas; Defendant lived in Hannibal, Missouri; and Victim lived in Mountain View, Missouri. During August 2009, Cross-Sanford's daughter reported to Defendant that her "private" hurt after she returned from visitation with Victim.
On September 14, 2009, Defendant's mother, Joann Cross ("Cross"), purchased a handgun at a pawn shop. Cross-Sanford drove with her children to Hannibal. The children remained with Cross at Defendant's home. Cross-Sanford and Defendant put on black hooded sweatshirts and drove to Victim's home.
At Victim's home, Defendant left the gun on the roof of the car while Defendant and Cross-Sanford spoke with Victim. A confrontation ensued with Victim shoving Defendant. Defendant went back to the car to retrieve the gun. Defendant then shot Victim and lit the couch on fire.
One of Victim's neighbors drove by Victim's home at about 5:30 a.m. on September 15, 2009, noticed that Victim's home was on fire, and called 911. After the fire was extinguished, Victim's body was found in the remains of the home. Victim had been shot four times, twice in the head and twice in the chest.
Defendant was subsequently arrested. After being advised of his Miranda rights, Defendant admitted shooting Victim and setting the home on fire.
Defendant was charged with first-degree murder, first-degree arson, and armed criminal action. The jury found Defendant guilty of second-degree murder, second-degree arson, and armed criminal action. In a subsequent proceeding, the jury recommended sentences of 25 years for second-degree murder, 7 years for second-degree arson, and 25 years for second-degree, 7 years for second-degree arson, and 25 years for armed criminal action. The judge sentenced Defendant in accordance with the jury's recommendation, and this appeal followed.

Resp't Ex. E, at 2-3 (footnote omitted). Additional relevant facts will be discussed below as needed to address Petitioner's claims.

In his direct appeal, Petitioner asserted two points: (1) that the trial court abused its discretion in excluding as hearsay the testimony of John Matney about what Danney Snethern told him; and (2) that the trial court erred in denying Petitioner's motion for a new trial due to discovery violations by the prosecutor—specifically, the prosecutor's failure to disclose that he had in his possession tapes of appellant's jail phone calls. Resp't Ex. C, at 15-17. The Missouri Court of Appeals reviewed both claims and found them to be without merit. Resp't Ex. E. In his amended motion for post-conviction relief, filed through counsel, Petitioner asserted a single claim: that Petitioner's trial counsel was ineffective in that trial counsel failed to obtain discovery of recordings of jail calls. Resp't Ex. F, at 22-32. The motion court denied the claim on the merits. Resp't Ex. F, at 73-83. On appeal from the denial of his motion, the Missouri Court of Appeals affirmed the motion court's denial of this claim. Resp't Ex. I, at 6-7.

In his Petition, Petitioner asserts seven claims: (1) that the trial court erred by excluding the testimony of John Matney about what Danny Snethern told him, because those statements were admissible under the residual hearsay exception; (2) that the trial court erred in overruling Petitioner's motion for a new trial with respect to the state's failure to disclose recordings oftelephone calls that Petitioner made while he was incarcerated an awaiting trial; (3) that Petitioner's trial counsel was ineffective based on trial counsel's failure to obtain discovery related to jail phone calls between Petitioner and others prior to trial; (4) that Petitioner's trial counsel was ineffective based on trial counsel's failure to make a challenge that as a result of the unconstitutional holding in Missouri v. Hunter, 459 U.S. 359 (1983), and the unconstitutional Missouri statute section 571.015, that Petitioner has been placed in double jeopardy by being convicted and sentenced for both Count 1 and Count 3;1 (5) that Petitioner's direct appeal counsel was ineffective based on counsel's failure to raise on appeal the issue that the trial court erred by overruling Petitioner's motion to suppress statements taken in violation of Petitioner's right to counsel, right against self-incrimination, and right to due process; (6) that Petitioner's direct appeal counsel was ineffective based on the failure to raise the issue that the trial court erred in overruling Petitioner's motion to stop introduction of State's Exhibit 68, a close-up of a burned face already depicted in other photographs; and (7) that Petitioner's direct appeal counsel was ineffective based on the failure to raise the issue that the trial court erred by denying Petitioner's jury instruction 6(A) with the parenthetical.

A. Standard for Reviewing Claims on the Merits

Federal habeas review exists only as a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quotation marks omitted). Accordingly, "federal habeas 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." White v. Kelley, 824 F.3d 753, 756 (8th Cir. 2016) (quoting Sera v. Norris, 400 F.3d 538, 542 (8th Cir. 2005)). Under AEDPA, a federal court may not grant habeas relief to a state prisoner with respect to any claim that was adjudicated on the merits in the state court proceedings unless the state court's adjudication of a claim "(1) resulted 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established Supreme Court precedents "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision involves 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." Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002). "Finally, a state court decision involves an unreasonable determinationof the facts in light of the evidence presented in the state court proceedings only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C. § 2254(e)(1)).

B. Procedural Default

To preserve a claim for federal habeas review, "a state habeas petitioner must present that claim to the state court and allow that court an opportunity to address his claim." Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). "Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are procedurally defaulted." Id. The federal habeas court will consider a procedurally defaulted claim "only where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice." Id. (citing Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992)). To demonstrate cause, a petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice, a petitioner must demonstrate that the claimed errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982); accord Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). Lastly, in order to assert the fundamental miscarriage of justice exception, a petitioner must "present new evidence that affirmatively demonstrates that he is innocent of the crime forwhich he was convicted." Murphy v. King, 652 F.3d 845, 850 (8th Cir. 2011) (quoting Abdi v. Hatch, 450 F.3d 334, 338 (8th Cir. 2006)).

A. Ground One: Trial Court ErrorExclusion of Hearsay Testimony


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