Gilliehan v. Norman
| Decision Date | 22 March 2011 |
| Docket Number | No. 4:08CV174 FRB,4:08CV174 FRB |
| Parties | FARLAND GILLIEHAN, Petitioner, v. JEFF NORMAN,1Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Missouri State prisoner Farland Gilliehan's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
On November 16, 2004, a jury in the Circuit Court of St. Louis County, Missouri, found petitioner guilty of one count of Burglary Second Degree, two counts of Stealing, and one count of Possession of Drug Paraphernalia with Intent to Use. (Resp. Exh. 3 at 52-56.) On December 17, 2004, petitioner was sentenced as a persistent offender to concurrent terms of imprisonment aggregating fifteen years, with such sentence to be served consecutively toterms of imprisonment petitioner was presently serving in separate criminal causes of action. (Id. at 62-66.) On January 24, 2006, petitioner's conviction and sentence were affirmed on direct appeal, State v. Gilliehan, 185 S.W.3d 238 (Mo. Ct. App. 2006) (order) (per curiam), and mandate issued March 29, 2006. In the meanwhile, on March 13, 2006, petitioner filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. (Resp. Exh. 7.) On November 27, 2007, the Missouri Court of Appeals affirmed the denial of post-conviction relief, Gilliehan v. State, 239 S.W.3d 171 (Mo. Ct. App. 2007) (order) (per curiam), and mandate issued December 19, 2007. Petitioner sought no other relief in State court. The instant petition for writ of habeas corpus, signed and verified by petitioner on January 29, 2008, was received by and filed in this Court on February 4, 2008.
Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston, Missouri. In the instant petition, petitioner raises four claims for relief:
(1) That there was insufficient evidence upon which to sustain his conviction for Stealing Over $500 inasmuch as there was insufficient proof as to the value of the property stolen;
(2) That the trial court erred in failing to suppress evidence which was seized as a result of an unlawful search;
(3) That the trial court's error in allowing Officer Jackie Tabers to testify regarding shoe print analysis permitted the jury to hear improperopinion evidence inasmuch as there was no proper foundation that Officer Tabers was an expert regarding such analysis; and
(4) That he received ineffective assistance of direct appeal counsel when counsel failed to raise on appeal the claim that the State failed to make a submissible case in light of the contradictory evidence presented.
In his response, respondent contends that the claim raised in Ground 2 is not cognizable in this federal habeas proceeding and should be dismissed. To the extent respondent contends that the remaining claims may be addressed on the merits, he argues that the State courts properly determined the claims on their merits and thus that the claims should be denied here.
In his second ground for relief, petitioner claims that physical evidence used in securing his conviction was unlawfully obtained inasmuch as it was gained as a result of an illegal search.
A State prisoner is precluded from asserting a Fourth Amendment claim as a basis for federal habeas relief unless the petitioner can demonstrate that the State courts have not afforded him a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465, 494 (1976); Palmer v. Clarke, 408 F.3d 423, 437 (8th Cir. 2005); Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir. 1994) (en banc). The Eighth Circuit has set forth a two-part test to determine whether a habeas petitioner has had anopportunity for a full and fair litigation of a Fourth Amendment claim in State courts. Willett, 37 F.3d at 1273. A Fourth Amendment claim is barred from federal habeas review under Stone v. Powell unless: 1) the State provided no procedure by which the petitioner could raise his Fourth Amendment claim, or 2) the petitioner was foreclosed from using that procedure because of an unconscionable breakdown in the system. Willett, 37 F.3d at 1273.
The first prong of the Willett test is satisfied in that the State of Missouri has a procedure by which petitioner could raise his Fourth Amendment claim. Id. at 1272 (). As to the second prong, there is no evidence before the Court to show that an unconscionable breakdown in the system prevented petitioner from raising the claim. Indeed, a review of the record shows that petitioner filed various pretrial motions, including a motion to suppress the physical evidence he challenges here. (Resp. Exh. 3 at 8-15.) A hearing was held on the motion, and petitioner appealed the trial court's determination to admit such evidence at trial. (Resp. Exhs. 1, 4.) On direct appeal, the Missouri Court of Appeals determined the trial court not to have erred in its determination. (Resp. Exh. 6, Memo. at 3-5.) Accordingly, a review of the record shows the State to have provided petitioner the opportunity for full and fair litigation of his Fourth Amendment claim and that petitioner availed himself of such opportunity to conclusion.
Inasmuch as petitioner has failed to demonstrate that the State did not afford him a full and fair opportunity to litigate his Fourth Amendment claim, the claim raised in Ground 2 of the instant petition is not cognizable in this habeas proceeding and should be denied.
Petitioner's remaining claims appear to assert that he is in custody in violation of his constitutional rights. Such claims are cognizable and thus may be addressed by this Court.
A petitioner must exhaust his State law remedies before the federal court can grant relief on the merits of his claims in a habeas petition. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The Court must first examine whether the federal constitutional dimensions of the petitioner's claims have been fairly presented to the State court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988); see also Boerckel, 526 U.S. at 848. 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 andactual prejudice resulting from the alleged unconstitutional error, or that a fundamental miscarriage of justice would occur if the Court were not 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 v. Weber, 544 U.S. 269 (2005).
A review of the record shows the claims raised in Grounds 1, 3 and 4 of the instant petition to be exhausted because petitioner raised the claims in State court wherein they were determined on their merits.
"In the habeas setting, a federal court is bound by the AEDPA [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). Under this standard, a federal court may not grant habeas relief to a State prisoner unless the State court's adjudication of a claim "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 "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); see Williams v. Taylor, 529 U.S. 362, 379 (2000). The federal law must be clearly established at the time petitioner's State conviction became final, and the source of doctrine for such law is limited to the United States Supreme Court. Williams, 529 U.S. at 380-83.
A State court's decision is contrary to clearly established Supreme Court precedent when it is opposite to the Court's conclusion on a question of law or different than the Court's conclusion on a set of materially indistinguishable facts. Williams, 529 U.S. at 412-13; Carter v. Kemna, 255 F.3d 589, 591 (8th Cir. 2001). A State court's determination is an unreasonable application of Supreme Court precedent if it unreasonably refuses to extend a legal principle to a new context where it should apply. Carter, 255 F.3d at 592 (citing Williams, 529 U.S. at 407). "Federal habeas relief is warranted only when the refusal was 'objectively unreasonable, ' not when it was merely erroneous or incorrect." Id. (quoting Williams, 529 U.S. at 410-11). Finally, a State court decision involves an unreasonable determination of the facts in light of the evidence presented in the State court proceedings only if it is shown by clear and convincing evidence that the State court's presumptively correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004).
In his first ground for relief, petitioner claims that there was insufficient evidence to sustain his conviction for Stealing Over $500 inasmuch as there was a lack of proof as to the value of the...
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