Green v. Wallace

• Decision Date: 21 September 2016
• Docket Number: No. 4:13-CV-811-SPM,4:13-CV-811-SPM
• Parties: KERRY GREEN, Petitioner, v. IAN WALLACE, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

KERRY GREEN, Petitioner, v. IAN WALLACE, Respondent.

No. 4:13-CV-811-SPM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

September 21, 2016

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Kerry Green's ("Petitioner's") pro se amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 30). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 22). For the following reasons, the amended petition for a writ of habeas corpus will be denied.

I. FACTUAL BACKGROUND

The following background is taken from the decision of the Missouri Court of Appeals affirming Petitioner's convictions on direct appeal:

In February 2008, Edmond Mack (Victim) shared the upstairs unit of a two-family flat with his friend, Avedou ("Vedo") Halkmon. Vedo Halkmon's older brother Ronald Halkmon had been living in the downstairs unit with his girlfriend, Peaches. On February 25, 2008, Ronald and Peaches were moving out of the downstairs unit, and Ronald's and Vedo's cousin, Carlos Vaughn was moving in with his girlfriend.

When Vedo arrived home on the evening of February 25, 2008, he saw Ronald standing on the front porch with [Petitioner] and Vaughn. Vedo greeted the three men and continued upstairs to his apartment. Later, Ronald knocked on the door to the upstairs apartment and used Vedo's cell phone to call the landlord and demand the return of his security deposit. After arguing with the landlord for twenty to thirty minutes, Ronald left the apartment. He returned a short time later and asked Vedo for a cigarette. Both times Ronald knocked on the door, Vedo answered it.

A few minutes later, Ronald knocked on Vedo and the Victim's door a third time. Victim answered the door, then headed back up the stairs. Vedo heard Ronald say to Victim, "Let me holler at you for a moment," and Victim went back down the stairs. Ronald proceeded to confront Victim about an argument he claimed Victim had with Peaches, saying, "What's that shit going on with you and Peaches?" Victim denied having said anything to Peaches, told Ronald to "go get Peaches" so that she could settle the matter, and headed back up the stairs. Victim said, "You trippin', Ron," immediately before Ronald fired a .38 revolver into Victim's back.

After Ronald shot Victim, he pulled Victim down the stairs. Ronald tried unsuccessfully to pull Victim outside, but Victim resisted by wedging his arms against the door. At this point, [Petitioner] and Vaughn went through Victim's jeans pockets. When they had finished, Ronald, [Petitioner], and Vaughn drove away in a burgundy and brown truck that [Petitioner] had been driving.

When Vedo heard the gunshot, he ran to the top of the stairs, shouting repeatedly at Ronald, "I know you ain't just shoot [Victim]." When he saw that Victim had been shot, Vedo ran back inside and called 911. When the police arrived, they found Victim dead, with his right pants pocket turned inside-out.

The State charged [Petitioner], Ronald, and Vaughn under the same indictment. The State charged [Petitioner] and Vaughn each with one count of murder in the second degree, one count of robbery in the first degree, and two counts of armed criminal action. The State charged Ronald with first-degree murder and armed criminal action.

Prior to trial, [Petitioner] filed a motion to sever his case from Ronald's. After a hearing, the trial court denied [Petitioner]'s motion to sever. After a week-long jury trial, the jury found [Petitioner] guilty on all charges. The jury also found [Petitioner]'s codefendants, Ronald and Vaughn, guilty on all charges. The trial court sentenced [Petitioner], as a prior and persistent offender, to thirty years' imprisonment.

Resp't Ex. B, at pp. 4-6.

II. PROCEDURAL BACKGROUND

In his direct appeal, Petitioner asserted five claims of trial error. Resp't Ex. A, at p. 2. The Missouri Court of Appeals affirmed the judgment. Resp't Ex. B. On April 1, 2011, Petitioner filed a pro se motion for post-conviction relief. Resp't Ex. C. On July 18, 2011, through counsel, Petitioner filed an amended motion for post-conviction relief, in which he raised several claims of ineffective assistance of counsel and one claim of prosecutorial misconduct. Resp't Ex. D, atpp. 2-11. The motion court denied the amended motion. Resp't Ex. E. Petitioner appealed, Resp't Ex. F, and the Missouri Court of Appeals affirmed the denial of the motion, Resp't Ex. G.

On April 25, 2013, Petitioner filed his pro se petition in the instant action, in which he asserted eleven grounds for relief. (Doc. 1). On May 8, 2014, with leave of this Court, Petitioner filed an amended petition in which he asserted fourteen grounds for relief: (1) that there was insufficient evidence to convict him of robbery and the accompanying count of armed criminal action; (2) that there was insufficient evidence to convict him of felony murder and the associated count of armed criminal action; (3) that the trial court erred in denying Petitioner's motion to sever his trial from that of his co-defendant, Ronald Halkmon ("Ronald")¹; (4) that the trial court erred by allowing the state to introduce evidence concerning the circumstances surrounding Petitioner's arrest; (5) that the trial court erred in not allowing Petitioner the opportunity to present evidence that the day before the offense, Ronald had shot a gun at his girlfriend, Peaches; (6) that Petitioner's direct appeal counsel was ineffective because counsel failed to appeal the trial court's admission of the prior consistent statements of Avedou; (7) that Petitioner's trial counsel was ineffective because she failed to object to the questioning of Detective Jackson with regard to statements made to him by Shante Jennings; (8) that trial counsel was ineffective because she failed to cure the damage done to the defense by the state's opening statement promising the testimony of Shante Jennings; (9) that trial counsel was ineffective because she failed to pursue Petitioner's motion to suppress an in-court identification and to request a ruling on the motion; (10) that trial counsel was ineffective because she failed to investigate and challenge the validity of Petitioner's arrest and to move to suppress all evidence obtained after the arrest; (11) that Petitioner was denied the right to a fair trial due toprosecutorial misconduct based on the prosecutor's failure to disclose that he had lost contact with witness Shante Jennings; (12) that Petitioner was denied the right to a fair trial due to prosecutorial misconduct in that the prosecutor argued facts not in evidence; (13) that Petitioner was denied the right to a fair trial due to prosecutorial misconduct based on impermissible burden-shifting; and (14) that the representation of Petitioner's trial counsel as a whole was such that had cumulative errors not occurred, there would have been a reasonable probability of a different outcome. (Doc. 30).

III. LEGAL STANDARD

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, 135 S. Ct. 1372, 1376 (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 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). Under AEDPA, a federal court may not grant relief to a state prisoner with respect to any claim that was adjudicated on the merits in the state court proceedings unless the state court's adjudication of a 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 decision is "contrary to" clearly established Supreme Court precedents "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materiallyindistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision involves an "unreasonable application" of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002). "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 that the state court's presumptively correct factual findings do not enjoy support in the record." Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins, 546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C. § 2254(e)(1)).

IV. DISCUSSION

A. Ground One: Sufficiency of the Evidence—Robbery and Associated Armed Criminal Action Count

In Ground One, Petitioner argues that his due process rights were violated because there was insufficient evidence to support his convictions for first degree robbery and armed criminal action. Petitioner argues that the state failed to prove that (1) the victim had...