Flaugher v. Morris

• Decision Date: 31 January 2012
• Docket Number: Case No. 11-1039-CV-W-GAF-P
• Citation: Flaugher v. Morris, Case No. 11-1039-CV-W-GAF-P (W.D. Mo. Jan 31, 2012)
• Parties: ROBERT FLAUGHER, Petitioner, v. KELLY MORRIS, Respondent.
• Court: U.S. District Court — Western District of Missouri

ROBERT FLAUGHER, Petitioner,

v.KELLY MORRIS, Respondent.

Case No. 11-1039-CV-W-GAF-P

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

Dated: January 31, 2012.

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, AND DENYING

THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Robert Flaugher, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on September 30, 2011, seeking to challenge his 2006 convictions and sentences for first degree burglary, first degree assault, and armed criminal action, which were entered in the Circuit Court of Osage County, Missouri.

Petitioner raises four grounds for relief: (1) that the court of appeals erred in denying his motion to recall the mandate in his case; (2) that the trial court erred in not affording petitioner sentencing by jury; (3) that the trial court erred in sustaining an objection to the testimony of the victim's mother; and (4) that trial counsel was ineffective in failing to object to questions by the State regarding the existence of a restraining order prohibiting petitioner from contacting his wife. Respondent contends that grounds 1 and 2 are not cognizable in a federal habeas proceeding, that ground 3 is without merit, and that ground 4 is procedurally defaulted.

SUMMARY OF FACTS

On direct appeal, the Missouri Court of Appeals summarized the facts as follows:

[Petitioner] was charged with burglary, assault, and armed criminal action for an incident involving his half-sister's husband, Ethan Ryals. Viewed in the light most favorable to the verdict, the evidence at trialrevealed the following.

In February 2007, Mr. Ryals suspected that [petitioner] had stolen money from his apartment. Subsequently, Mr. Ryals called his half-sister on several occasions asking about [petitioner] and the money. Later, Mr. Ryals filed a police report regarding the allegedly stolen money. Following these actions, [petitioner] became "hostile" towards Mr. Ryals.

On March 3, 2007, [petitioner] visited a friend, Harley Gabbert, and asked if he would "rough up" Mr. Ryals. Mr. Gabbert agreed and [petitioner] said that he would pick him up later and drive him to Mr. Ryals' apartment.

Later that night, [petitioner] picked up Mr. Gabbert who brought along his friend, Matt Curran. Upon arriving at Mr. Ryals' apartment, Mr. Gabbert walked up to the door and knocked. When Mr. Ryals[] opened the door, Mr. Gabbert introduced himself as a neighbor's nephew. Mr. Ryals then saw Mr. Curran standing at the end of the yard and [petitioner] standing to the left of the door holding an aluminum baseball bat. Mr. Gabbert pushed the door open, struck Mr. Ryals, and climbed on top of him. Thereafter, [petitioner] entered the apartment, moved Mr. Gabbert to the side, and began beating Mr. Ryals with the baseball bat. After severely injuring Mr. Ryals, [petitioner] fled with the other two men leaving Mr. Ryals unconscious inside the apartment.

Based on this evidence, the jury found [petitioner] guilty on all charges. The trial court sentenced [petitioner] to concurrent terms of fifteen years' imprisonment for first degree burglary, life imprisonment for first degree assault, and fifteen years' imprisonment for armed criminal action.

(Petitioner's Exhibit E, pp. 2-3).

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 convincingevidence 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.

GROUND 1

In his first ground for relief, petitioner contends that the Missouri Court of Appeals erred in denying his motion to recall the mandate. Recall of an appellate mandate in Missouri "may result only under limited circumstances," such as ineffective assistance by the movant's counsel on appeal or when an appellate decision "directly conflicts with a decision of the United States Supreme Court relative to rights of a criminal defendant." State v. Teter, 747 S.W.2d 307, 308 (Mo. App. W.D. 1988).

In petitioner's motion to recall the mandate of the Missouri Court of Appeals, he alleged ineffective assistance of post-conviction relief ("PCR") counsel. (Petitioner's Appendix A, pg. 35). The state court denied the motion because "Appellant is not entitled to effective assistance of post-conviction counsel." (Id.). Likewise here, petitioner cannot receive federal habeas relief under a claim of ineffective assistance of PCR counsel. 28 U.S.C. § 2254(i). Therefore, failure of the state courts to grant petitioner's motion to recall the mandate does not state a ground upon which relief may be granted.

Ground 1 is denied.

GROUND 2

In ground 2, petitioner contends that the trial court erred in not affording him jury sentencing.Missouri mandates jury sentencing unless, inter alia, the defendant is proven to be a "prior offender, persistent offender, dangerous offender, or persistent misdemeanor offender as defined in section 558.016," in which case the court sentences the defendant. MO. REV. STAT. § 557.036. In this case, the State claimed that petitioner "ha[d] priors," (see Respondent's Exhibit A, pp. 40-41), and therefore that petitioner must be sentenced by the court instead of a jury. However, the State never actually proved that the priors existed.

While it appears that the State or the trial court may have erred under state law in failing to follow the relevant statutory requirements for sentencing by the trial court instead of a jury, such error cannot affordfederal habeas relief to petitioner. As respondent notes, there is no federal constitutional right to jury sentencing once a jury has found a defendant guilty of every element of a crime. See, e.g., Ring v. Arizona, 536 U.S. 584, 597 n.4 (2002). Indeed, "federal habeas corpus relief does not lie for errors of state law . . . [and] it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions." Evanstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006), (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, relief cannot be granted on ground 2 since it is based on an error under state law.

Ground 2 is denied.

GROUND 3

In ground 3, petitioner contends that the trial court erred in sustaining an objection to testimony by the victim's mother. The mother's testimony was offered by petitioner to show the victim's character for untruthfulness, and his general reputation in the community. However, the trial court sustained the State's objection to the testimony, stating as follows:

THE COURT: Okay. Then that's fine. I think - first of all, I think that this testimony is not really testimony of reputation within thecommunity. It's one person's opinion, not much more than that. I don't think I'm going to allow it, but it is on the record now and so an offer of proof has been made.

(Respondent's Exhibit A, pg. 306).

At the outset, it should be noted that "[q]uestions relating to the admissibility of evidence are matters of state law and generally do not give rise to constitutional errors which are subject to redress in federal habeas corpus cases." Harrison v. Dahm, 880 F.2d 999, 1001 (8th Cir. 1989) (quoting Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.), cert. denied, 429 U.S. 898 (1976)). Only if the alleged error violates a specific constitutional right or is so prejudicial that it denies due process may a federal court grant habeas corpus relief on a state evidentiary issue. Clark v. Groose, 16 F.3d 960, 963 (8th Cir. 1994).

On direct appeal, the Missouri Court of Appeals disposed of ground 3 as follows:

[Petitioner] argues that the trial court erred in sustaining the State's objection to Beverly Dale's testimony regarding [the victim's] poor reputation for truthfulness and veracity in the community. Specifically, [petitioner] claims that by excluding Ms. Dale's testimony, the trial court prevented him from presenting evidence proving that the State's primary witness, [the victim], was not credible, which deprived him of a complete defense . . .

When a witness testifies at trial, the witness places his or her reputation for truthfulness and veracity at issue, and the opposing party is permitted to present evidence of the witness's poor reputation for truth and veracity for impeachment purposes. State v. Twenter, 818 S.W.2d 628, 634 (Mo. banc 1991). For a witness to testify to a person's reputation for truth and veracity, "[i]t is only necessary that the witness be in a position to have heard anything that was said concerning [the person's] reputation." Id.

Generally, a witness may not testify as to his or her opinion of the person's character. State v. Trimble, 638 S.W.2d 726, 735 (Mo. banc 1982). In addition, a witness may not testify to specific acts of misconduct without proof of bias or relevance. State v. Wolfe, 13 s.W.3d 248, 258 (Mo. banc 2000). Instead, "impeaching testimony should be confined to the real and ultimate object of the inquiry, whichis the reputation of the witness for truth and veracity." Id.

To impeach [the victim's] testimony, the defense sought to introduce [the victim's] mother, Ms. Dale, as a witness to testify about her son's poor reputation for truthfulness and veracity. During the defense's offer of proof, Ms. Dale testified that her relationship with [the victim] became "strained" a couple of years ago when [the victim] accused her of stealing $30,000, and that the only contact she currently has with him is "when he calls and leaves

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