Dejesus-Andujar v. Bowersox

• Decision Date: 29 February 2012
• Docket Number: Case No. 11-1277-CV-W-DGK-P
• Parties: SANDRIO DEJESUS-ANDUJAR, Petitioner, v. MICHAEL BOWERSOX, Respondent.
• Court: U.S. District Court — Western District of Missouri

SANDRIO DEJESUS-ANDUJAR, Petitioner,

v.MICHAEL BOWERSOX, Respondent.

Case No. 11-1277-CV-W-DGK-P

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

Dated: February 29, 2012

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS

AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Sandrio DeJesus-Andujar, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on December 14, 2011, seeking to challenge his 2007 conviction and sentence for attempted forcible sodomy, which was entered in the Circuit Court of Jackson County, Missouri.

The petition raises the following sole ground for relief: that trial counsel was ineffective for advising petitioner to waive his right to testify in his own defense. Respondent contends that this ground is without merit.

SUMMARY OF THE FACTS

On appeal from the denial of petitioner's Mo. Sup. Ct. Rule 29.15 motion, the Missouri Court of Appeals summarized the facts as follows:

In January of 2007, [petitioner] was incarcerated at the Livingston County Jail. He was housed in the same block as the victim ("Victim") and others, including Michael Gale and Jeremiah Muth, [petitioner's] co-defendants. While Victim was in the common area, Gale and [petitioner] attempted to hold Victim down and to grab his buttocks. Initially, Victim thought the other two men were just joking around, but he became convinced that they were not joking when they persisted in chasing him around the common area, attempting to grab his buttocks and his private area. [Petitioner] attempted to pull Victim's pants down while Gale held him againsta wall. [Petitioner] and Gale attempted to get Victim into an empty cell. Gale repeatedly tried to kiss Victim. [Petitioner] threatened to smack Victim's head into the floor if he called for help. Gale told Victim, "I'm going to get you, I'm going to get you. I'm going to penetrate you, I'm going to penetrate you."

[Petitioner] lifted Victim and carried him into a cell shared by [petitioner] and another inmate named Marcus Moore. Victim did not want to go into the cell and resisted. After [petitioner] and Gale forced Victim into the cell, Muth shut the door and tied it shut with a towel.

While Victim was in the cell, [petitioner] sat on his chest and held his hands down. Gale and [petitioner] tried to pull Victim's pants down and Gale tried to penetrate him, telling Victim that he was going to "get" him "in the butt" and that Gale would knock Victim out and take "it" from him. Meanwhile, [petitioner] repeatedly told Victim to lie there and "take it like a grown man." Gale lowered his pants to reveal his boxer shorts, and Muth passed a rubber glove through the cell door to Gale, who tried to put the glove on his penis. According to Livingston County Sheriff Steve Cox, inmates often use rubber gloves as condoms. Gale told Victim that he was unable to obtain a sufficient erection to apply the glove. [Petitioner] continued to laugh and tell Victim to lie there and take it.

Victim heard a voice say "keys," which he took to mean that a guard was coming down the hallway. At that time, [petitioner] and Gale left the cell. As Victim left the cell, Gale told him that he would hit Victim, bust his face up, and kill him if Victim were to "snitch." Gale flexed his muscles and threatened to make Victim his "bitch" and to orally and anally sodomize him.

. . .

[Petitioner] did not testify at the guilt phase of his trial. No record was made as to [petitioner's] understanding that the decision of whether to testify in his own defense was his to make or that he was voluntarily choosing not to testify.

Although [petitioner] did not testify at trial, he testified, through an interpreter, at his sentencing hearing. n.1

n.1 [Petitioner] waived jury sentencing and chose to be sentenced by the court.

At that time, although he had many complaints about his trial counsel, Jane Dunn, none of his complaints related to the fact that Dunn had prevented him from testifying in his own defense at trial. In addition, [petitioner] testified that he was generally satisfied with the assistance of Dunn's co-counsel, then-District Defender David Miller. n.2

n.2 Hon. David Miller has since been appointed to the Circuit Court of Ray County.

[Petitioner's] direct appeal did not allege that the trial court denied him a right to testify in his own defense.

In [petitioner's] motion for post-conviction relief, he alleged that trial counsel Dunn ("Counsel") was ineffective for failing to advise him that he had the right to testify in his own defense at the guilt phase of his trial. [Petitioner] alleged that he told Counsel that he wanted to testify at trial, but Counsel responded that it was best that she not call [petitioner] to testify and that she planned to call other defense witnesses. [Petitioner] also alleged that the trial court failed to make sure that he was voluntarily waiving his right to testify. [Petitioner] alleged that if he had known that he could override Counsel's decision, he would have chosen to testify at the guilt phase of his trial and would have denied the State's allegations against him. [Petitioner] alleged that he could have testified to matters to which the other two defense witnesses were unable to testify, namely that Gale never exposed himself inside the cell or tried to use the rubber glove as a condom. [Petitioner] also alleged that he would have testified that the horseplay began after Victim had called Gale, "sexy." [Petitioner] alleged that, had he testified at trial, there is a reasonable probability that the outcome would have been different.

At the hearing on his motion, Counsel testified that she had been employed by the Public Defender's office for over sixteen years. Counsel was assisted in [petitioner's] case by the-District Defender Miller. Counsel had visited [petitioner] several times at the jail while his case was pending. At the meetings, Counsel would sometimes speak with [petitioner] in English, and sometimes she would bring a Spanish-speaking interpreter with her. A few days before [petitioner's] trial began, Counsel and an interpreter met with [petitioner] at the jail and discussed whether [petitioner] should testify; Counsel did not believe that it was necessary for [petitioner] to testify at his trial. Although Counsel did not specifically recalltelling [petitioner] that the decision whether to testify was his to make, she testified that she typically would explain this to her clients.

Now-Judge David Miller also testified that he had assisted Counsel in her representation of [petitioner] and that he accompanied her on several of her visits with [petitioner] at the jail. Although Judge Miller could not remember any specific conversation with [petitioner] about whether he should testify at his trial, Miller would routinely advise clients of their right to testify, and would have advised [petitioner] of this right, as Counsel's supervisor, if Counsel had not done so.

[Petitioner] testified at the hearing that he did not understand English well and that Counsel did not always bring an interpreter when she visited [petitioner] in the jail. [Petitioner] testified that he asked Counsel to call him to testify but that Counsel told him that other witnesses would tell his side of the story. [Petitioner] denied that either Counsel or Miller advised him that the decision whether to have [petitioner] testify was [petitioner's] to make. [Petitioner] testified that he thought it was Counsel's decision and that he would have testified had he known that he could. Specifically, [petitioner] claimed that he would have testified that Gale never exposed his genitals to Victim, never attempted to use a rubber glove as a condom, and never made any sexual advances to Victim while the men were in the cell. [Petitioner] would have testified that Victim was free to leave the cell at any time and that the men were just engaging in horseplay.

The motion court's judgment found that [petitioner's] claim that he was never advised of his right to testify in his own defense "strain[ed] credibility to the breaking point." The court noted that Counsel had questioned the jury panel during voir dire about a criminal defendant's right to testify, the credibility of a defendant in the jury's eyes, and the weight given to his testimony in comparison to other witnesses. This inquiry lasts for over six pages in the trial transcript, and [petitioner] had been in the courtroom and accompanied by an interpreter during this inquiry. The motion court also noted that [petitioner] "could scarcely have hired two more seasoned and professional attorneys to represent him" at the trial and that both attorneys testified that they typically advise their clients of their right to testify. The court found that [petitioner's] claims were not credible, and therefore the motion court denied the motion.

(Respondent's Exhibit K, pp. 2-6).

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.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his sole ground for relief, petitioner claims that trial counsel was ineffective in denying him the ability to testify in his own defense, and thus the waiver of his right to testify was involuntary. He also asserts that the court should have assured that petitioner knew his rights. The claim...