Fugate v. Bowersox, Case No. 4:15CV1015 RLW
| Decision Date | 29 January 2016 |
| Docket Number | Case No. 4:15CV1015 RLW |
| Parties | DAVID RAY FUGATE, Petitioner, v. MICHAEL S. BOWERSOX, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Petitioner David Ray Fugate's Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus By a Person in State Custody (ECF No. 1 ("Motion")) and Motion to Stay, Abey, Place in Hold Status (ECF No. 5). Because this Court has determined that Fugate's claims are inadequate on their face and the record affirmatively refutes the factual assertions upon which Fugate's claims are based, this Court decides this matter without an evidentiary hearing.1
Fugate was charged with second-degree murder and armed criminal action as a result of the death of Michael Crutchfield ("the victim"). A jury found Fugate guilty of both charges, and recommended a sentence of twenty years' imprisonment for second-degree murder and tenyears for armed criminal action. Fugate filed a motion for a new trial. The trial court did not rule on Fugate's post trial motion, deeming it denied pursuant to Rule 29.11(g). The court entered judgment upon the jury's verdict and sentenced Fugate according to the jury's recommendation, the sentences to be served consecutively. On September 4, 2012, the Missouri Court of Appeals affirmed the judgment of the trial court. State v. Fugate, 377 S.W.3d 612 (Mo. Ct. App. 2012); ECF No. 14-6. On December 9, 2014, the Missouri Court of Appeals affirmed the motion court's denial of Fugate's Rule 29.15 motion for postconviction relief. Fugate v. State, 456 S.W.3d 861, 862 (Mo. Ct. App. 2014); ECF No. 14-12.
On June 29, 2015, Fugate filed this Motion seeking relief based upon the following grounds:
(1) Fugate argues that his trial counsel was ineffective for not presenting "30 Thomure photographs" and the "St. Anthony's medical records."
(2) Fugate alleges that the State knowingly solicited the perjured testimony of David Hopewell when Hopewell testified that he did not see the victim and Fugate shove and push one another before Fugate shot the victim.
On August 10, 2015, Fugate file a Motion to Stay, Abey, Place in Hold Status, asking that he be able to return to state court to exhaust his newly discovered claim that the state knowingly used perjured testimony to obtain a conviction. (ECF No. 5). On November 17, 2015, Bowersox filed a response to both motions. (ECF No. 14). Michael Bowersox is the Warden of the South Center Correctional Center ("SCCC") is Fugate's custodian.
Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only onthe 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). "[I]n a § 2254 habeas corpus proceeding, a federal court's review of alleged due process violations stemming from a state court conviction is narrow." Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). "[A]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "'A state court's decision is contrary to ... clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless arrives at a [different] result.'" Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). The Supreme Court has emphasized the phrase "Federal law, as determined by the Supreme Court," refers to "the holdings, as opposed to the dicta, of this Court's decisions," and has cautioned that § 2254(d)(1) "restricts the source of clearly established law to Court's jurisprudence." Williams, 529 U.S. at 412. A State court "unreasonably applies" federal law when it "identifies the correct governing legal rule from Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to anew context where it should apply." Williams, 529 U.S. at 407. A State court decision may be considered an unreasonable determination "only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Ryan v. Clarke, 387 F.3d 785, 791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).
Fugate moves this Court for a stay and abeyance while he seeks to litigate his unexhausted claim in the state courts. "Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims." Rhines v. Weber, 544 U.S. 269, 270 (2005). Entitlement to a stay requires not only consideration of whether petitioner had good cause for his failure to exhaust, but also whether his unexhausted claims are "plainly meritless," whether the claims are potentially meritorious, and whether the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-78.
Prior to considering the merits of a state petitioner's habeas claims, a federal court must determine whether the federal constitutional dimensions of the petitioner's claims were presented to the state court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir.1988). If not, the petitioner may still meet the exhaustion requirement if there are no currently available non-futile state remedies by which he could present his claims to the state court. Smittie, 843 F.2d at 296. When the petitioner's claims are deemed exhausted because he has no available state court remedy, the federal court still cannot reach the merits of the claims unless the petitioner demonstrates adequate cause to excuse his state court default and actual prejudice resulting from the alleged unconstitutional error, or that a fundamental miscarriage of justice would occur if the Court werenot to address the claims. Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995); Stokes v. Armontrout, 893 F.2d 152, 155 (8th Cir.1989). Before reviewing any claims raised in a habeas petition, the Court may require that every ground advanced by the petitioner survive this exhaustion analysis. Rhines, 544 U.S. at 269.
In this case, Fugate does not have any non-futile state remedies by which he can present his unexhausted claims to the state courts. Rule 29.15 is the "exclusive procedure by which [a convicted] person may seek relief in the sentencing court" for claims that his conviction violated the state or federal constitutions. Mo. S. Ct. R. 29.15. And any such motion must be filed no later than 90 days from the issuance of the mandate by the appellate court on direct appeal. Id. As a result, all of Fugate's claims are exhausted, and the petition is not subject to stay and abeyance under Rhines.
As an additional basis (and as discussed below), the Court holds that allowing a stay and abey of Fugate's claims would be futile because his claims are patently merits.
Fugate argues that trial counsel was ineffective for not presenting "30 Thomure photographs" and the "St. Anthony's medical records." Some of this evidence was presented at trial, but Fugate contends that his trial counsel was ineffective for not submitting all of the photographs of Fugate's injuries and for not submitting Dr. Kimberly Lederman's finding that Fugate suffered a "contusion of the chest." (ECF No. 1 at 2, 3). Fugate also contends that the State knowingly solicited the perjured testimony of David Hopewell when Hopewell testified that he did not see the victim and Fugate shove or push one another before Fugate shot the victim. (ECF No. 1 at 5).
Before presenting a claim for review in a federal habeas petition, a petitioner must properly exhaust his state remedies. 28 U.S.C. §2254(b). The "exhaustion requirement is satisfied only when the federal claim is 'fairly presented' to the state courts." Stranghoener v. Black, 720 F.2d 1005, 1007 (8th Cir. 1983). A claim is not fairly presented when factual allegations with a significant impact on the merits of the claim are raised for the first time in federal court. Id. For a claim to be fairly presented and for state remedies to be properly exhausted, a petitioner must have raised the claim on direct appeal or in state post-conviction proceedings. Davis v. Campbell, 608 F.2d 317, 321 (8th Cir. 1979).
Under Missouri law, claims not included in the amended motion for post-conviction relief are not considered to be before the motion court. Wills v. State, 321 S. W.3d 375, 386 (Mo. Ct. App. 2010); Self v. State, 14 S.W.3d 223, 226 (Mo. App. S.D. 2000) (). When appellate court review of a post-conviction motion is available, failure to include a claim made to the motion court in an appeal operates as a procedural bar...
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