Cutts v. Dormire

• Decision Date: 19 July 2012
• Docket Number: Case No. 4:11CV1038MLM
• Parties: RODNEY E. CUTTS, Petitioner, v. DAVE DORMIRE, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

RODNEY E. CUTTS, Petitioner,

v.DAVE DORMIRE, Respondent.

Case No. 4:11CV1038MLM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Date: July 19, 2012

MEMORANDUM OPINION

This matter is before the court on the Petition for Writ of Habeas Corpus filed by Petitioner Rodney E. Cutts ("Petitioner") pursuant to 28 U.S.C. § 2254. Doc. 1. Respondent filed a Response to Order to Show Cause Why a Writ of Habeas Corpus Should Not Be Granted. Doc. 7. Petitioner filed a Reply to Respondent's Response and a Supplemental Reply. Docs. 10, 11. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. 9.

I.PROCEDURAL HISTORY

Petitioner was charged by Substitute Information in Lieu of Indictment as follows: Count I, the felony of forcible rape, in that on about August 2, 2006, in the City of St. Louis, Petitioner knowingly had sexual intercourse with K.W.¹ by the use of forcible compulsion; Count II, the class C felony of sexual assault, in that on about August 2, 2006, in the City of St. Louis, Petitioner had sexual intercourse with K.W., knowing that he did so without the consent of K.W.;² Count III, theclass A felony of domestic assault in the first degree, in that on August 2, 2006, in the City of St. Louis, Petitioner attempted to cause serious physical injury to K.W. by striking her and in the course thereof inflicted serious physical injury to K.W. and K.W. and Petitioner were family or household members in that K.W. and Petitioner were adults who were or had been in a continuing social relationship of a romantic or intimate nature; Count IV, the class B felony of burglary in the first degree, in that on about August 2, 2006, in the City of St. Louis, Petitioner knowingly entered unlawfully in a building located at 1446 Morrison Lane and possessed by K.W. for the purpose of committing Domestic Assault in the first degree therein, and while in such building, K.W., who was not a participant in the crime, was present; and Count V, the class A misdemeanor of stealing, in that on about August 2, 2006, in St. Louis, Petitioner appropriated four hundred and fifty dollars which was in K.W.'s possession and Petitioner appropriated such property without the consent of K.W. and with the purpose to deprive her of it. Petitioner was charged as a prior offender. Resp. Ex. B1 at 185-87.

On October 29, 2007, through October 31, 2007, Petitioner was tried before a jury in the Circuit Court of the City of St. Louis. The testimony at Petitioner's trial was that the victim, K.W., dated Petitioner for five or six months; that they lived together for that entire time; that the relationship descended into arguing, bickering, and fighting; that, eventually, K.W. ended the relationship and took back Petitioner's key to her house; that in the early morning hours of August 2, 2006, Petitioner entered the house through the back door; that K.W.'s children were awake and Petitioner asked to talk to K.W.; that the children told him that she was asleep and not to wake her up; that K.W. awoke when she felt someone kissing on her chest and realized it was Petitioner; that K.W. then screamed asking Petitioner how he got into her house; that K.W. told Petitioner to get out of her house; that Petitioner said he loved and missed her and that he was not going anywhere; thatK.W. sent her children upstairs; that, when Petitioner tried to insert his penis in her, K.W. kicked Petitioner off of her and ran to the back door and then to the front door; that, when she reached for her cell phone, Petitioner grabbed it; that Petitioner then struck K.W. in the eye and she fell to the floor; that K.W. got up and ran to the back door, where Petitioner met her and struck her in the nose; that K.W. again fell to the floor; and that Petitioner ran out of the back door. Resp. Ex. A, Trial Transcript ("Tr.") at 151-58, 189-90.

The testimony was also that K.W. then ran to a neighbor's house and called the police; that police responded but K.W. did not tell them about the sexual acts because Petitioner had not penetrated her; that later that morning K.W. woke up and, seeing the condition of her face, called police; that, when police arrived, K.W. had a swollen eye, her other eye was discolored, and her face was swollen; that she told police about the sexual acts; that K.W.'s young son told the police that Petitioner used a key to get into the house and that he hit K.W.; that the young son, Kareem, said that his brother saw Petitioner take something from K.W.'s purse; that there was blood in various locations inside and outside the residence; that, at the hospital, it was determined that bone fragments around K.W.'s eye and her nose were broken; and that a sexual assault kit was completed.³ Tr. at 160-61, 200-201, 215.

The trial court granted Petitioner's motion for acquittal on the count of forcible rape and, instead, submitted an instruction to the jury on attempted forcible rape. Resp. Ex. K at 2 n.1. Thejury found Petitioner guilty of domestic assault in the first degree and acquitted him of all other counts. Having previously found that Petitioner was a prior offender, the court sentenced him to fourteen years incarceration. Resp. Ex. A at 213, Ex. B at 233-36. Petitioner filed a direct appeal. Resp. Ex. D. By decision, dated February 24, 2009, the Missouri appellate court affirmed the decision of the trial court. Resp. Ex. F.

On March 18, 2009, Petitioner filed a pro se post-conviction relief motion. Resp. Ex. H at 3-40. Counsel was appointed and filed an amended motion. Resp. Ex. H at 47-71. By decision, dated January 5, 2010, the motion court denied Petitioner post-conviction relief. Resp. Ex. H at 75-82. Petitioner appealed the decision of the motion court. Resp. Ex. I. By decision, dated November 16, 2010, the Missouri appellate court affirmed the decision of the motion court. Resp. Ex. K.

On June 8, 2011, Petitioner filed his § 2254 Petition in which he raises the following issues:

1. Petitioner was denied effective assistance of counsel because counsel failed to object to a faulty jury instruction for domestic assault in the first degree;

2. Petitioner was denied effective assistance of counsel because counsel failed to object to object to an instruction on domestic assault in the second degree and failed to proffer an alternative instruction on that offense;

3. Petitioner was denied effective assistance of counsel because counsel failed to present the testimony of Officer Anthony Page;

4. Petitioner is being held in violation of the Fifth and Fourteenth Amendments on the grounds of double jeopardy, collateral estoppel, and res judicata.

Doc. 1.

II.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), applies to all petitions for habeas relief filed by state prisoners after this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas reviewpursuant to § 2254 a federal court is limited to deciding whether decisions of state courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). "'Federal law, as determined by the Supreme Court,' refers to 'the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Evenstad v. Carlson, 470 F.3d 777, 782-83 (8th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). To obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he thinks the state courts acted contrary to or applied unreasonably. Id. at 783 (citing Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006); Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000)). Thus, where there is no federal law on a point raised by a habeas petitioner, a federal court cannot conclude either that a state court decision is "'contrary to, or involved an unreasonable application of, clearly established Federal law' under 28 U.S.C. §2254(d)(1)." Id. at 784. "When federal circuits disagree as to a point of law, the law cannot be considered 'clearly established' under 28 U.S.C. § 2254(d)(1). Id. at 783 (citing Tunstall v. Hopkins, 306 F.3d 601, 611 (8th Cir. 2002)). See also Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (holding that in the absence of controlling Supreme Court precedent, a federal court cannot reverse a state court decision even though it believes the state court's decision is "possibly incorrect").

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court set forth the requirements for federal courts to grant writs of habeas corpus to state prisoners under § 2254. The Court held that "§2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for writ of habeas corpus with respect to claims adjudicated on the merits in the state court." Id. at 412. The Court further held that the writ of habeas corpus may issue only if the state-court adjudication resulted in a decision that:

(1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2)"involved an unreasonable application of . . . clearly established Federal Law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the"unreasonable application"clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13.

Williams further...