ORDER
Before the Court is Petitioner Eric Douglas's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. No. 1). Respondent filed a "Response to Order to Show Cause," (Doc. No. 10), and Petitioner filed a Traverse. (Doc. No. 19). Therefore, the matter is now ripe for review.
Petitioner Eric Douglas is incarcerated at the Crossroads Correctional Center, Cameron, Missouri as a result of the sentence and judgment issued by the 31st Judicial Circuit, Greene County, Missouri. A jury found Douglas guilty of first degree assault and armed criminal action. The Circuit Court of Greene County sentenced Douglas to two consecutive terms of twenty-five years in prison. Petitioner's convictions were affirmed on direct appeal. State v. Douglas, 304 S.W.3d 756 (Mo. Ct. App. 2010). Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15, the denial of which was also affirmed. Respondent's Exhibit J.
Petitioner now seeks relief from this Court pursuant to § 2254. Petitioner raises five grounds for relief: 1) the trial court violated his right to due process by excluding evidence at trial; 2) the trial court violated his right to due process and his Sixth Amendment right toconfrontation by admitting notes into evidence that were found at the scene of the crime; 3) his due process rights were violated because the evidence was insufficient to establish his guilt; 4) his direct appeal counsel was ineffective in failing to raise an issue on appeal; and 5) trial counsel's failure to properly advise him about an alleged plea deal constituted ineffective assistance of counsel.
Respondent contends Petitioner's complaint regarding the exclusion of evidence is not cognizable under this Court's limited jurisdiction. Respondent further contends Petitioner's claims regarding the violation of his right to confront a witness; insufficient evidence to support a conviction; and ineffective direct appeal counsel are without merit because the determination by the Missouri Court of Appeals was reasonable and entitled to deference under §2254(d). Finally, Respondent argues Petitioner procedurally defaulted his claim of ineffective assistance of trial counsel by failing to raise it before the Missouri Court of Appeals.
The following background is taken from the Missouri Court of Appeals' Opinion affirming Douglas's conviction and sentence:
Appellant was convicted of shooting Kevin Chaison ("Victim") in the neck and buttocks in the early morning hours on July 25, 2006. In the light most favorable to the judgment, the evidence was that on the date of the shooting a utility worker, Matthew Young, observed a man and lady standing near a Neon automobile at the corner of Grant and Walnut; he subsequently heard some "popping noises," which caused him to look up. When he looked up, he saw a man in a "blue hoodie," firing a gun at a man, Victim, who had been near the Neon. The man in the blue hoodie continued to walk toward Victim as Victim tried to run away towards the back of a building. Mr. Young heard at least four to six shots being fired by the man in the blue hoodie but did not see any aggressive acts by the man who was shot. After the shooter stopped shooting, Mr. Young heard the lady say that she knew the shooter and that they would get him. Mr. Young was not able to identify the shooter, nor did he see the shooter point the gun at the lady.
Retha Brown lived next to Appellant; she testified that sometime between 6:30 a.m. and 7:00 a.m., Appellant came to her house wearing a dark-colored hoodie.
He appeared upset and stated that someone had broken into his house and stolen some things. He asked Ms. Brown to give him a ride to Walnut and Grant. Ms. Brown drove him to that location and dropped him off before going to work.
Rosalind Lee testified that she lived with Victim. On the evening prior to the shooting, Ms. Lee and Victim had an argument and Victim took her car, which was a Neon. Victim returned between 5:30 a.m. and 6:00 a.m., on the date of the incident. Shortly before 7:00 a.m., as Ms. Lee was getting in her car to go to work and Victim was standing on the passenger side of the car, Appellant walked down the street and called for Victim to come talk to him. Victim began to walk toward Appellant. Ms. Lee saw Appellant walk up to the back of the car and, while on the sidewalk, fire three shots.
She testified that she knew Appellant because he had dated her sister and knew he carried a .22 pistol. Appellant was wearing a blue hoodie, which was identified by Ms. Lee as the same one the shooter was wearing. The hoodie was found by the police in the alleyway close to the scene of the shooting, together with some .22 ammunition. Ms. Lee further testified that, after Victim was shot and ran to the rear of the apartment complex, Ms. Lee spoke to Appellant and said, "I know you're not going to shoot me with that gun;" however, Appellant then turned the gun on her and fired but it was out of ammunition. Appellant did not move until she told him the police were coming and then "broke and ran" to the west and away from the apartment complex.
Victim was lying on the ground in the back of the building with a bullet wound in his neck and bleeding from his mouth; he had also been shot in the buttocks. After Appellant fled, Ms. Lee put Victim in her car and drove him to the hospital. He remained in the hospital for one week with serious injuries, including a tracheal tube in his throat for part of the week.
Ms. Lee further testified that Appellant's mother, Gwendolyn Douglas, called her and offered her $500.00 if she failed to appear for court in this matter. Mrs. Douglas countered that testimony by stating that it was Ms. Lee who had contacted her a week before trial requesting money to not show up and testify against Appellant. Mrs. Douglas also claimed that Ms. Lee asked for money to help her hide from the police and that, on a previous occasion, Ms. Lee asked for money in exchange for not coming to court.
The police found "two pieces of paper that were folded up on the sidewalk that led from the front of the apartment complex over to the driveway to the east side of the [apartment] building" during their search of the grounds. The officer did not know who wrote on them, but both referred to Appellant by his first name or his first and last names. One gave a telephone number of Tonya Shockley and the other said "Amanda can't come until this afternoon" and had the words "Eric Douglas" where a signature would be.
Victim did not testify. While he was on parole and supposed to be living in a St. Louis Release Center, he "walked away" prior to the trial and "never returned." After the shooting, Appellant went into hiding and was not seen by anyone or heard from by anyone for almost six months.
Respondent's Exhibit E; State v. Douglas, 304 S.W.3d 756, 759-60 (Mo. Ct. App. 2010)(internal quotations and footnotes omitted).
A district court shall entertain petitioner's application for a writ of habeas corpus if the person is in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). "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. 1984). The state court's determination of factual issues shall be presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Here, the state courts' findings have fair support in the record and the petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous. Therefore, the Court defers to and adopts the factual findings of the state court.
In Ground One, Petitioner argues the exclusion of telephone records during trial violated his due process rights. Respondent contends there was never proper foundation for admission of the telephone records at trial. Respondent further argues, even if there was proper foundation, the records would not have damaged the credibility of the witnesses and certainly did not fatally infect Petitioner's trial to render it fundamentally unfair.
Petitioner contends that the Missouri Court of Appeals failed to address this due process claim "in any manner whatsoever." However, the Missouri Court of Appeals stated the following with regard to Petitioner's argument pertaining to the phone records:
In his final point, Appellant contends that the trial court erred in refusing to admit Appellant's mother's telephone records. Appellant claims that the records would have shown that Ms. Lee called Appellant's mother, not that Appellant's mother called Ms. Lee. Appellant did not offer the records into evidence nor did he make any offer of proof. As the trial court properly noted, there was an improper foundation as Appellant did not provide an appropriate business records affidavit to the State in advance of trial nor present testimony from a records custodian authenticating the accuracy of the records. The trial court denied the admission of the records, specifically stating that the records, even if properly presented, were an attempt to provide evidence on a collateral matter.
To properly preserve a claim regarding the exclusion of evidence for review, a party must make an adequate offer of proof. State v. Miller, 172 S.W.3d 838, 853-54 (Mo. App. S.D. 2005). To be adequate, an offer of proof must
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