Dorsey v. Steele

• Decision Date: 27 September 2019
• Docket Number: Case No. 4:15-08000-CV-RK
• Parties: BRIAN J. DORSEY, Petitioner, v. TROY STEELE, Respondent.
• Court: U.S. District Court — Western District of Missouri

BRIAN J. DORSEY, Petitioner, v. TROY STEELE, Respondent.

Case No. 4:15-08000-CV-RK

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

September 27, 2019

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is Petitioner Brian J. Dorsey's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 25.) Also before the Court is Petitioner's motion to expand the record to include additional affidavits and for an evidentiary hearing. (Doc. 100.) For the reasons below, Petitioner's motion for leave to expand the record and for an evidentiary hearing is DENIED; the Petition is DENIED; a certificate of appealability is DENIED; and the case is DISMISSED.

Background

The Supreme Court of Missouri stated the facts as follows on postconviction appeal:

On December 23, 2006, Brian J. Dorsey's family was concerned that he was in trouble because of money he owed to drug dealers. He had called several family members asking to borrow money because there were two drug dealers in his apartment and he needed help. Mr. Dorsey's cousin, Sarah Bonnie, Sarah's husband Ben,¹ and two others went to Mr. Dorsey's apartment. The two drug dealers left Mr. Dorsey's apartment when his family arrived. The Bonnies then took Mr. Dorsey to their home, where they spent the evening drinking and playing pool in the Bonnies' "shop" with other family members and Darin Carel, a family friend. A shotgun had to be moved off the pool table before they could play pool. During the evening, Mr. Dorsey drank seven to ten beers.

After everyone except Mr. Dorsey and Mr. Carel had left, the Bonnies went to bed. After Mr. Carel left, Mr. Dorsey found a bottle of vodka and drank some of it. He then retrieved the single-shot, 20-guage shotgun from the Bonnies' shop and fatally shot the Bonnies while they were in their bed. He then had sexual intercourse with Sarah's body. Afterward, he poured bleach on Sarah's torso and genital area and stole several items from the house, including Sarah's vehicle. Mr. Dorsey used some of the property to pay a debt for money he borrowed for drugs from Patricia Cannella and tried selling other stolen items, including the shotgun,to various people throughout the night. He was driving a white car, which he said was his, and the property he was trying to sell was in the car. He was heavily intoxicated and had the bottle of vodka with him.

The next day, Sarah's parents became worried when the Bonnies did not show up for a family gathering. They went over to the Bonnies' house and found their four-year-old daughter, who told them that her parents had been locked in the bedroom all day. When Sarah's parents were able to get into the locked bedroom, they found the Bonnies dead.

A sexual assault kit was used to collect evidence from Sarah's body, and the vaginal swabs taken were sent to the Missouri State Highway Patrol crime laboratory for testing. A presumptive test indicated a possible, but unconfirmed, presence of sperm cells. A full autosomal DNA profile was then created from the swab.² The profile was consistent with Sarah's DNA, indicating she was the sole source of the DNA, and eliminated Mr. Dorsey as the source of the autosomal DNA. An extraction was then performed to target DNA on any Y chromosomes in the sample because only males have Y chromosomes. The Y-chromosome profile eliminated Ben and Mr. Carel, who had been at the Bonnies' house on the night of the murders, as the source of the DNA. It did not eliminate Mr. Dorsey as the source, however.

On December 26, Mr. Dorsey surrendered to police and admitted that he was "the right guy concerning the deaths of the Bonnies." Sarah's social security card was found in Mr. Dorsey's back pocket. Later that day, police found Sarah's car with some of the Bonnies' property still inside and the shotgun in the trunk. Ms. Cannella identified many of the items in the car as those Mr. Dorsey had been trying to sell on the morning of December 24. Mr. Dorsey was charged with two counts of first-degree murder. Chris Slusher and Scott McBride were hired by the office of the Missouri State Public Defender to represent Mr. Dorsey on these charges for a flat fee. Mr. Slusher was primarily responsible for investigating and preparing mitigation evidence, while Mr. McBride was primarily responsible for reviewing the DNA evidence.

In March 2008, Mr. Dorsey pleaded guilty to both counts. A jury trial was then held for the penalty phase. The jury recommended a sentence of death for each murder, finding both murders were committed while Mr. Dorsey engaged in the commission of another unlawful homicide, committed for the purpose of receiving money or any other thing of monetary value, and involved depravity of mind and manner. The jury also found the murder of Sarah was committed while Mr. Dorsey was engaged in the crime of rape. The trial court sentenced Mr. Dorsey accordingly.

Dorsey v. State, 448 S.W.3d 276, 281-82 (Mo. banc 2014). The Supreme Court of Missouri affirmed on direct appeal, State v. Dorsey, 318 S.W.3d 648, 651-52 (Mo. banc 2010), and again on appeal from the denial of postconviction relief, Dorsey v. State, 448 S.W.3d at 301.

Petitioner then filed this § 2254 Petition, and the State responded. (Doc. 25; Doc. 29.) After several briefing extensions and a stay pending further state proceedings on Claim 26 under Rhines v. Weber, 544 U.S. 269 (2005), Petitioner filed a traverse (Doc. 86), and counsel presented oral arguments on the issue of procedural default (Doc. 95). In a separate order, the Court denied Claim 5 as procedurally defaulted. (Doc. 98.) The remaining 27 claims are now ready for decision.

Discussion

For the reasons below, Petitioner's remaining claims either are procedurally defaulted or fail on the merits.

I. Failure to Subject the State's Case to Meaningful Adversarial Testing (Claim 1)

In Claim 1, Petitioner argues that his trial counsel failed to meaningfully contest the State's case under United States v. Cronic, 466 U.S. 648 (1984) because they did not investigate guilt. Petitioner concedes this claim is procedurally defaulted because he did not raise it in state court. (Doc. 25, Pet. at 173.) To excuse the default, he must show either "cause and actual prejudice" or "actual innocence." Murphy v. King, 652 F.3d 845, 849-50 (8th Cir. 2011). Petitioner argues there is cause to excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012), because his postconviction counsel was ineffective for not raising this claim. (Doc. 25, Pet. at 173.) The Court disagrees.

To excuse a procedural default under Martinez, the underlying claim of ineffective assistance of trial counsel must be "substantial," and postconviction counsel must have been constitutionally ineffective with respect to the claim. Martinez, 556 U.S. at 14. A claim is "substantial" if it has "some merit" and "insubstantial" if "it does not have any merit or . . . is wholly without factual support." Id. at 14-16; Kemp v. Kelley, 924 F.3d 489, 499 (8th Cir. 2019).

Here, Petitioner's Cronic claim does not rise to the level of a substantial claim under Martinez. Ordinarily, an ineffectiveness claim requires showing deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Cronic excuses the need to show Strickland prejudice under certain circumstances, including when counsel "failed to function in any meaningful sense as the Government's adversary." Cronic, 466 U.S. at 666. To meet thisstandard, counsel's failure must have been "complete" throughout an entire proceeding, not only at various points. Bell v. Cone, 535 U.S. 685, 696-98 (2002).

Petitioner's Cronic claim is refuted by the record. Mr. Slusher, one of Petitioner's two trial lawyers, testified at the postconviction hearing that the public defender's office had already done substantial work on the case before he and Mr. McBride were retained to defend the case. (Doc. 29-11, PCR Tr. at 584-87.) The discovery file in their possession included police reports containing overwhelming evidence of guilt. (Petition Appendix ("Pet. App.") at 1-627.) Specifically, several witnesses placed Petitioner at the Bonnies' house on the night of the murders. (Id. at 7, 11-14, 21.) Darin Carel told police that only Petitioner was there with the Bonnies when he left. (Id. at 49-50.) The Bonnies' four-year-old daughter, J,³ told police that Petitioner came into her room after she fell asleep and, when she asked about her parents, told her she couldn't see them. (Id. at 55-56, 353-54.)

The next morning at 4:00 a.m., according to several witnesses' statements to police, Petitioner showed up at Patricia Cannella's home in what appeared to be Sarah Bonnie's white car. He was apparently attempting to sell the Bonnies' property to pay off his drug debt, including two guns, a ring inscribed with the names Sarah and Brian (Brian was also the name of Sarah Bonnie's ex-boyfriend), Ben Bonnie's cell phone, and Sarah's car. (Id. at 8, 45, 315-19, 340-41, 361-62, 397-401, 431, 618-19, 626-27.) Police later discovered the car abandoned with several things in it that were usually kept in the Bonnies' house—including the murder weapon. (Id. at 88-91, 266-69.) Lab reports showed Petitioner's DNA was consistent with DNA found on the steering wheel of the car, cigarette butts near where the car was found, and vaginal swabs from Sarah Bonnie. (Id. at 513-15.)

On December 26, 2018, Petitioner voluntarily turned himself in to the police. (Id. at 117, 120-21.) He had Sarah Bonnie's Social Security card in his back pocket. (Id. at 130.) In response to questioning, he told police that he was the "right man concerning the death of the Bonnies." (Id. at 119-21.)

According to Mr. Slusher, "it didn't take [him] long to review the case and feel like the guilt phase of the case was going to be difficult." (Doc. 29-11, PCR Tr. at 587.) Nonetheless, he deposed four police officers and moved to suppress Petitioner's incriminating statements. (Doc....