Griffith v. Larkins
| Decision Date | 10 April 2012 |
| Docket Number | Case No. 4:09CV1092 JCH |
| Parties | SHANNON GRIFFITH, Plaintiff(s), v. STEVE LARKINS, Defendant(s). |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Missouri State prisoner Shannon Griffith's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.
On October 20, 2003, a jury in the Circuit Court of St. Charles County, Missouri, found Petitioner guilty of six counts of child molestation in the first degree, three counts of sexual misconduct in the first degree, and one count of child molestation in the second degree. Petitioner was sentenced to a total of thirty-eight years imprisonment. Petitioner's convictions and sentence were affirmed on appeal. See State v. Griffith, 160 S.W.3d 406 (Mo. Ct. App. 2005). With the assistance of trial counsel, Petitioner filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15. Petitioner was subsequently assigned counsel, who filed an amended Rule 29.15 motion on Petitioner's behalf. Petitioner's Rule 29.15 motion was denied without an evidentiary hearing. The motion court's denial of Petitioner's Rule 29.15 motion was affirmed in part and remanded in part on appeal, and on remand the motion court was instructed to enter specific findings of fact and conclusions of law as to Petitioner's argument that Petitioner's trial counsel was ineffective for failing to object to certain statements the prosecutor made in closing argument. SeeGriffith v. State, 233 S.W.3d 774 (Mo. Ct. App. 2007). On remand, the motion court again denied Petitioner's Rule 29.15 motion without an evidentiary hearing. The motion court's denial was affirmed on appeal. See Griffith v. State, 263 S.W.3d 784 (Mo. Ct. App. 2008).
Petitioner is currently incarcerated at the Eastern Reception Diagnostic and Correctional Center in Bonne Terre, Missouri. In his petition for writ of habeas corpus, Petitioner raises the following fourteen claims for relief:
(1) The State failed to present constitutionally sufficient evidence to support Petitioner's convictions and sentences;
(2) The trial court erred in precluding Petitioner's trial counsel from cross-examining the State's witness Wendy Bouhl about her brother Gerald Bouhl's sexual abuse case and about her knowledge of Petitioner's status as a probationer in a sex-offense case, which denied Petitioner a fair trial and the right to confrontation and cross-examination;
(3) The trial court erred in precluding Petitioner's trial counsel from calling rebuttal witnesses Mr. Bouhl, Rebecca Hahn1 , and Matt Thornhill, which denied Petitioner right to due process;
(4) Petitioner's trial counsel was ineffective for eliciting and failing to move to strike Detective Jana Walters's opinion that children the age of the alleged victims do not usually lie about sexual abuse;
(5) Petitioner's trial counsel was ineffective by adducing live testimony about interviews of the child witnesses and introducing notes from the interviews, transcribed notes from the interviews, interview reports, and videotapes of the interviews;
(6) Petitioner's trial counsel was ineffective by failing to object to the prosecutor's remarks during closing argument that the prosecution had dismissed all counts that they could not prove beyond a reasonable doubt;
(7) Petitioner's trial counsel was ineffective by failing to object to the prosecutor's remarks during rebuttal closing argument that Petitioner was a sex offender who would continue to commit sex offenses against children unless he was convicted and put in prison;
(8) Petitioner's trial counsel was ineffective by failing to endorse Mr. Bouhl, Ms. Hahn, or Mr. Thornhill as trial witnesses; (9) Petitioner's trial counsel was ineffective by failing to endorse Mr. Bouhl, Ms. Hahn, or Mr. Thornhill as trial witnesses;
(10) Petitioner's trial counsel was ineffective by failing to endorse Ms. Hahn, Donnie Funky, Leo Barton, Chris Mills, Inez "Weezie" Thaller, Ralph Pillar, Margie Williams, and Mr. Bouhl, and Wendy Bouhl's ex-fiance Brian and ex-husband Chris as trial witnesses;
(11) Petitioner's trial/direct appeal counsel was ineffective by failing to object and preserve on appeal the mistreatment of the Petitioner during trial that prejudiced him in the eyes of the jury;
(12) Petitioner's trial/direct appeal counsel was ineffective by failing to "raise, preserve, and brief" Petitioner's constitutional grievances on appeal;
(13) Petitioner's trial/direct appeal counsel was ineffective by failing to advance on appeal that the jail conditions before and during Petitioner's trial were inhumane; and
(14) Petitioner's trial/direct appeal counsel was ineffective by failing to communicate with Petitioner and provide Petitioner with documents related to his case.
(Petition Under 28 U.S.C. § 2254 For Write of Habeas Corpus By a Person in State Custody ("Petition"), ECF No. 1, pp. 8-63).
A claim must be presented at each step of the judicial process in state court to avoid procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.), citing Benson v. State, 611 S.W.2d 538, 541 (Mo. Ct. App. 1980), cert. denied, 513 U.S. 983 (1994). "Failure to raise a claim on appeal from the denial of a post-conviction motion erects a procedural bar to federal habeas review." Id. (citing Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir. 1988)).
A federal court cannot reach the merits of a claim that is procedurally defaulted absent a showing of cause and prejudice or a demonstration "that failure to consider the federal claim will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (internal quotations and citations omitted); Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert. denied, 515U.S. 1163 (1995). A petitioner who makes no claim of actual innocence cannot satisfy the "fundamental miscarriage of justice" exception to the required showing of cause and prejudice. Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995); Washington v. Delo, 51 F.3d 756, 760-761 (8th Cir.), cert. denied, 516 U.S. 876 (1995).
In Ground 8, Petitioner asserts his trial counsel was ineffective by failing to endorse Gerald Bouhl, Rebecca Hahn, or Matt Thornhill as trial witnesses. (Petition, p. 42).
Ground 9 is identical to Ground 8.
In Ground 10, Petitioner asserts his trial counsel was ineffective by failing to endorse Ms. Hahn, Donnie Funky, Leo Barton, Chris Mills, Inez "Weezie" Thaller, Ralph Pillar, Margie Williams, and Mr. Bouhl, and Wendy Bouhl's ex-fiance Brian and ex-husband Chris as trial witnesses.
In Ground 11, Petitioner asserts his trial/direct appeal counsel was ineffective by failing to object and preserve on appeal the mistreatment of the Petitioner during trial that prejudiced him in the eyes of the jury.
In Ground 12, Petitioner asserts his trial/direct appeal counsel was ineffective by failing to "raise, preserve, and brief" Petitioner's constitutional grievances on appeal.
In Ground 13, Petitioner asserts his trial/direct appeal counsel was ineffective by failing to advance on appeal that the jail conditions before and during Petitioner's trial were inhumane.
Petitioner failed to raise all of these arguments in his amended Rule 29.15 motion, and thus these arguments were also omitted from his appeal of the denial of his Rule 29.15 motion. Petitioner attempts to establish cause for his procedural default by asserting his post-conviction appellate counsel omitted these issues on appeal of the denial of his Rule 29.15 motion against Petitioner's will or simply failed to raise them at all. The Court notes there is no constitutional right to effectiveassistance of post-conviction counsel. Jolly, 28 F.3d at 54 (citing Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir. 1992)). Furthermore, under Eighth Circuit law, "it is well-established that any alleged ineffective assistance of post-conviction counsel in failing to raise a claim is insufficient as a matter of law to serve as cause for procedural default." Battle v. Dormire, No. 4:03-CV-1662, 2007 WL 803624, at *4 (E.D. Mo. Mar. 13, 2007) (citing Clay v. Bowersox, 367 F.3d 993, 1005-06 (8th Cir. 2004)). Thus, to the extent Petitioner asserts the error of his post-conviction attorney constitutes cause to excuse his procedural default, his argument fails. Id. Additionally, Petitioner has made no claim of actual innocence so as to satisfy the "fundamental miscarriage of justice" exception to the required showing of both cause and prejudice. Therefore, the claims raised in Grounds 8, 9, 10, 11, 12, and 13 of the Petition are procedurally barred and must be denied.
In Ground 14, Petitioner asserts his trial/direct appeal counsel was ineffective by failing to communicate with Petitioner and provide Petitioner with documents related to his case. Petitioner failed to raise this argument in his amended Rule 29.15 motion, and it was not raised on his appeal of the denial of his Rule 29.15 motion.
Petitioner offers no explanation as to why he failed to raise this issue in state court. Petitioner initially states he did not raise this issue in his direct appeal from his judgment of conviction (Petition, p. 64) and then claims he did raise this issue on direct appeal (Petition, p. 65), despite his acknowledgment that claims of ineffective assistance of counsel are not cognizable on direct appeal. Regardless, Petitioner acknowledges he did not raise this issue in his Rule 29.15 motion, and he provides no reason for his failure to do so. (Petition, p. 64). Thus, Petitioner has failed to show cause as to why he failed to raise this issue in state court. Additionally, Petitioner has made no claim of actual innocence so as to...
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