MEMORANDUM AND ORDER
STEPHEN R. CLARK, UNITED STATES DISTRICT JUDGE
In
February 2013 Glen Evans drove his friend Matt Cook to
Advance, Missouri, so Cook could “take care of some
business” with someone. Cook, who was upset and was
texting during the drive, said at one point: “I'm
gonna kill him.” Evans also saw that Cook had a gun. In
Advance, Cook shot and killed Sean Crow in a McDonald's
parking lot. Evans and Cook then drove back to Evans's
house, where Cook stayed for a few days. While Cook and Evans
were together at an Applebee's, Police officers arrested
Cook-then arrested Evans later that night at Evans's
house.
A
state-court jury found Evans guilty of second-degree murder.
Doc. 11-2 at p. 77. The state court sentenced Evans to
twenty-five years imprisonment. Doc. 11-1 at p. 820; Doc
11-2 at pp. 81-83. Evans appealed his conviction to the
Missouri Court of Appeals, which affirmed. Doc. 11-6. He did
not appeal to the Supreme Court of Missouri. A state motion
court denied Evans's amended post-conviction relief
motion after an evidentiary hearing. Doc. 11-8 at pp. 116-40.
The Missouri Court of Appeals affirmed the motion court, Doc
11-12, and the Supreme Court of Missouri denied transfer.
Evans remains incarcerated. Doc. 5 at pp. 1-2. He now
petitions this Court under 28 U.S.C. § 2254 for a writ
of habeas corpus, alleging ineffective
assistance of his trial counsel and claiming the state trial
court made various errors. Id. For the reasons
discussed below, the Court denies Evans's petition.
According
to 28 U.S.C. § 2254(e), “[i]n a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court,
a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear
and convincing evidence.” The Missouri Court of Appeals
described the pertinent facts as follows:
On Tuesday, February 19, 2013, [Evans] drove his friend Matt
Cook (Cook) to Advance, Missouri, to “take care of some
business” with a guy. During the drive, Cook was upset
and at one point he said, “I'm gonna kill
him.” Cook was texting and told [Evans], “He
thinks he's getting some pu**y.” [Evans] also saw a
gun that Cook told him belonged to his girlfriend, Jackie
Rudd (Rudd).
When they arrived in Advance, Cook told [Evans] to pull into
McDonald's. McDonald's was a combination fast food
restaurant, convenience store, and gas station. Surveillance
tapes showed [Evans] arrived at 7:10 p.m. After [Evans]
parked, Cook exited the car and entered the convenience
store, and returned about five minutes later with no
purchases. Across the parking lot, Sean Crow (Crow) was
sitting in his red pickup truck parked with the headlights
on. Cook told [Evans] that the person he needed to see was in
the red truck across the parking lot. Cook told [Evans] to
pull around the back of McDonald's, which [Evans] did.
Cook got out of the car and told [Evans] to pull across the
highway and wait for him. As Cook walked away from [Evans]
and toward Crow's truck, [Evans] saw the gun tucked in
the back of his pants, in the small of his back. Cook then
went up to Crow's truck, leaned in the truck window, and
shot Crow in the eye with a .22 caliber pistol, killing him.
Cook then ran back to [Evans]'s car, and told [Evans] to
park at a nearby Dollar General store and let him out so he
could walk over and check on Crow, get his phone, and check
for evidence. Cook returned with $19 and Crow's phone.
Cook later had [Evans] pull over so he could smash the phone
and dispose of it in a dumpster.
[Evans] and Cook returned to [Evans]'s home. [Evans] told
his friend Brent Montgomery (Montgomery) that Cook had just
shot someone. Cook confirmed this fact and put the gun, a .22
caliber, to Montgomery's head and warned him not to say
anything about it. Montgomery told Cook that he could not
kill anyone with a .22 caliber, but Cook answered that he
could at point blank range, and that he had
shot the man in the eye. [Evans] told Cook to get the gun out
of Montgomery's face and to calm down. Montgomery soon
left.
The next morning, Wednesday, February 21, 2013, [Evans] told
his girlfriend Beth O'Neal (O'Neal), with whom he
lived, that Cook needed a place to stay. O'Neal agreed he
could stay at their place. Cook was gone most of that day but
returned that night and spent most of Thursday and Friday
with [Evans] and O'Neal. On Saturday, February 24, 2013,
[Evans] was visited by his friend Jamie Abernathy
(Abernathy). [Evans], Abernathy, O'Neal and Cook went to
Applebee's. At some point, [Evans] took O'Neal home
and then came back. While [Evans], Abernathy and Cook were at
Applebee's, police officers came in and arrested Cook for
nonsupport and Abernathy for a traffic warrant and took them
away. [Evans] remained by himself but then left for another
bar.
Later that night, at about 2:30 a.m., Sheriff Carl Hefner
(Sheriff Hefner) and Trooper Steve Jarrell (Trooper Jarrell)
went to [Evans]'s house to interview him because Cook was
now a suspect in Crow's murder, and earlier [Evans] had
been with Cook at Applebee's. The officers wanted to
discern whether [Evans] had any information about the murder.
However, after Sheriff Hefner knocked on his front door and
O'Neal answered and let him in, [Evans] ran out the side
door. Trooper Jarrell pursued [Evans], telling him to stop or
he would shoot, but [Evans] continued to run. Eventually,
[Evans] was apprehended. Trooper Jarrell asked [Evans] why he
had run. [Evans] said he freaked out because he had been at
Applebee's earlier with a friend who had been arrested
for shooting someone in the head. [Evans] was brought to the
sheriff's office where he was read and then waived his
Miranda rights.
Trooper Scott Stoelting (Trooper Stoelting) interviewed
[Evans], who claimed he did not know anything about
Crow's murder. [Evans] told Trooper Stoelting he had
picked up Cook and drunk a six-pack with him on February 19,
2013, but then left and did not see Cook again until the
following Friday. When asked about going to Advance,
Missouri, [Evans] said he had not been there in over a year.
[Evans] finally admitted he had driven Cook to Advance,
Missouri on the night of February 19, 2013, at Cook's
request because Cook had alleged he had “some business
to take care of” there. [Evans] told police that
although Cook had told him Crow was ripping people off on
dope deals, [Evans] figured out after the shooting that the
real reason Cook was upset with Crow was because he was
sleeping with Cook's girlfriend, Rudd. [Evans] stated he
initially thought there might be a fight or a “pistol
whip” between Cook and Crow, so he looked the other way
as he drove past Crow's truck and parked across the
street to wait for Cook. As he was parking, [Evans] saw Cook
already running back toward him. [Evans] told police he could
not believe Cook could have “done it” already.
[Evans] said when he asked Cook how he could kill someone
with a .22 caliber pistol, Cook responded that he shot him in
the eye. [Evans] said he also expressed surprise no
one had heard the gunshot, but Cook assured him no one had
heard it. Cook then told [Evans] to park at a Dollar General
store and let him out so he could walk over and check on
Crow, get his phone, and check for evidence. Cook returned
with some money and Crow's phone, which he later smashed
and disposed of in a dumpster. [Evans] then dropped Cook off
at his girlfriend Rudd's house and went home.
The police analyzed [Evans]'s cell phone, but were unable
to find any calls or text messages made from February 19,
2013, to February 23, 2013, because they had been erased. The
police analyzed the phone Cook used that was registered to
his girlfriend, Rudd. An analysis of the records for that
phone revealed on February 19, 2013, Cook had contacted
[Evans]'s phone at 2:24 p.m., and [Evans]'s phone had
contacted Rudd's (Cook's) phone at 2:32 p.m. The
records of these calls or text messages had been deleted from
both phones. The record also showed that between 5:42 p.m.
and 7:10 p.m. on February 19, 2013, 42 text messages were
sent between Rudd's (Cook's) phone and Crow's
phone.
Cook pled guilty to first-degree murder and received life in
prison with no parole. The State charged [Evans] with
first-degree murder as Cook's accomplice. After a trial,
the jury was instructed on both first- and second-degree
murder under an accomplice liability theory, and after
deliberation, found [Evans] guilty of second-degree murder.
[Evans] was sentenced by the trial court to twenty-five
years' imprisonment.
Doc. 11-6 at pp. 2-5.
“A
state prisoner who believes that he is incarcerated in
violation of the Constitution or laws of the United States
may file a petition for writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254[.]” Osborne
v. Purkett, 411 F.3d 911, 914 (8th Cir. 2005), as
amended (June 21, 2005). 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.'”
Woods v. Donald, 575 U.S. 312, 315 (2015) (per
curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting,
a federal court is bound by the AEDPA [the Antiterrorism and
Effective Death Penalty Act] to exercise only limited and
deferential review of underlying state court
decisions.” Lomholt v. Iowa, 327 F.3d 748, 751
(8th Cir. 2003) (citing 28 U.S.C. § 2254).
For a federal court to grant...
