Hosier v. Crews, 4:20-CV-04044-RK

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Writing for the CourtROSEANN A. KETCHMARK, JUDGE
PartiesDAVID HOSIER, Petitioner, v. TRAVIS CREWS, Respondent .
Docket Number4:20-CV-04044-RK
Decision Date14 April 2022

DAVID HOSIER, Petitioner,
v.

TRAVIS CREWS, Respondent .

No. 4:20-CV-04044-RK

United States District Court, W.D. Missouri, Western Division

April 14, 2022


ORDER

ROSEANN A. KETCHMARK, JUDGE

Petitioner David Hosier, a convicted state prisoner confined in the Jefferson City Correctional Center, has filed this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this petition is DENIED, and a certificate of appealability is DENIED.[1]

I. Statement of Facts

Petitioner does not challenge the sufficiency of the evidence. Relevant to Petitioner's claims are the following facts:[2]

The bodies of Angela Gilpin (Victim) and Rodney Gilpin (Husband) were found in the hallway of their apartment building on September 28, 2009.[3] The Jefferson City Police Department (JCPD) found 9-millimeter shell casings in the foyer and in the apartment. An autopsy conducted the next day revealed that Victim died from gunshot wounds to the head and torso, and Husband died from gunshot wounds to the chest. Victim was wearing her purse, which contained an application for a protective order from Petitioner. The application stated Victim and Petitioner were “ex-lovers, he knows everywhere i [sic] go, who i [sic] go with, who comes to my home and

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is harassing me calling JCPD for no reason.” She further wrote “he stalkes [sic] me every day, has called JCPD on me Sat. Monday.” She also indicated she was afraid because Petitioner had a violent history with an ex-wife. Victim signed the form under penalty of perjury. On a separate form used for obtaining service, she indicated Petitioner had “lots of firearms.” Victim applied for the order of protection two weeks before the murder, and a hearing was set for four days before the murder. The record does not indicate whether the hearing was held; however, Petitioner's landlord testified a sheriff's deputy attempted to serve Petitioner with process but Petitioner was out of town.

During the investigation, JCPD learned that Petitioner and Victim had been involved in an “on again, off again” romantic relationship that Victim had ended when she reconciled with Husband during the month before the murders of September 28, 2009. The apartment building was locked, and there were no signs of forcible entry. In the hours after the deaths were discovered, JCPD spoke with various people who knew Victim, Husband, and Petitioner, including their landlord, two neighbors, and Petitioner's former employer. The landlord informed JCPD that Petitioner's apartment overlooked Victim's apartment, and that Victim had requested a new apartment because she no longer wanted to live near Petitioner. The landlord provided a copy of a letter Victim had written to him stating she had filed for a restraining order against Petitioner and she was afraid because she did not know what Petitioner would “do next.”

At trial, a redacted copy of the letter was admitted, as follows:

Dear Dennis
This is Angela Gilpin, 1100 W. High apt. 2. I am writing you to inquire as to weather you may have any other apartment rentals anywhere else in town. I can no longer live next door to Dave Hosier.... I have gone to the Court House and filled for a restraining order
Anyway, If you have anything else, I would be interested in looking. I have liked my apartment, and renting from you. I'm sorry for all the B.S. Believe me, he scares me. I don't know what he will do next.
Sincerely,
Angie.

State v. Hosier, 454 S.W.3d 883, 898 n.8 (Mo. banc 2015) (reproduced as it appeared in record). The landlord also provided police with a criminal background check indicating Petitioner had been convicted of assault and battery in Indiana. The landlord added he recently told Petitioner that he was no longer permitted to enter Victim's apartment building because Victim complained

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Petitioner had entered her apartment without permission.[4] The landlord also asked Petitioner to move out by the end of September because of the growing tension.

JCPD also contacted a neighbor who had socialized with Victim the night before her death. Petitioner had left several voice messages on the neighbor's cell phone that night that were threatening toward Victim. In one message, Petitioner stated that he was going to “f****** finish it. I'm tired of the s***. You don't believe me. I'm tired of the s***.” Hosier, 454 S.W.3d at 890 (asterisks in original). On another occasion after Petitioner and Victim broke up, Petitioner told this neighbor that if he could not have Victim, no one could.

A second neighbor told JCPD that Petitioner had called her the night before the murders to say he had left certain possessions on her car in case something happened. He also told her he was going to “eliminate his problems.” The second neighbor led JCPD to her car, where they found a note and a set of keys. The note was from Petitioner and instructed the neighbor to call Petitioner's sister if anything happened to him. Petitioner also asked her to take care of his possessions in a storage facility. The neighbor told police that Petitioner had previously stated Victim had “f***** him over” and he was going to “f*** her over.” Id. (asterisks in original). JCPD also spoke with Petitioner's former employer. He told them Petitioner had been “let go” because Petitioner had been harassing and stalking Victim, who had been a frequent customer.

In the hours immediately following the murders, there was no response at Petitioner's apartment and his car was not in its usual parking spot. Relying on information gathered from the landlord, the neighbor with the threatening voicemails, and Petitioner's former employer, Missouri authorities applied for a search warrant for Petitioner's apartment. After obtaining the search warrant for Petitioner's apartment and while executing it, police found 9-millimeter ammunition and an empty box of 9-millimeter shells, as well as the schematic for a 9-millimeter STEN machine gun (“basically a blueprint on how to make a submachine gun”).

Law enforcement also applied for a cell phone ping orderto determine Petitioner's location when they applied for the search warrant. The application included an affidavit in which the swearing officer stated that Petitioner “had been identified as the primary suspect in the homicide investigation” and the location information was “essential to obtain key evidence relevant to the ongoing criminal investigation.” The ping order allowed police to determine Petitioner's location

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in real time based on the location of his cell phone.

Executing the ping order, JCPD determined Petitioner was traveling south through Oklahoma. They alerted law enforcement officials in Oklahoma that a “wanted car and person” were in the area. An Oklahoma police officer spotted Petitioner's car and activated his emergency lights to pull him over. Petitioner did not stop and led police on a “moderate speed chase, ” evading one roadblock before pulling over. When Petitioner eventually stopped, he exited his car, saying, “Shoot me, and get it over with” or “end it.” Police were able to put him in handcuffs and found a knife on his body. In plain view in the car, police saw a bulletproof vest, gun, and pistol holder.

Oklahoma authorities applied for a search warrant for Petitioner's car. In the application, the swearing officer stated he was alerted to Petitioner's presence in Oklahoma by JCPD and that JCPD had identified Petitioner as the primary suspect in the homicide investigation based on interviews with the neighbors. The application stated the police were aware Petitioner was in Oklahoma based on the ping order. The swearing officer stated Petitioner had violated state law by illegally possessing a firearm and failing to yield to police lights and sirens.

In searching the car pursuant to the Oklahoma warrant, police recovered two cell phones, a knife next to the driver's seat, a bulletproof vest, 400 rounds of ammunition, and 15 firearms. One of the firearms was an unloaded STEN machine gun that was capable of firing 9-millimeter ammunition. It was the only gun in the car that was not in a bag and was later determined to be the murder weapon.

In addition, police also found two notes. One note had Victim's vehicle information written on it. The other note offered incriminating evidence that Petitioner had harmed someone. It stated:

If you are going with someone do not lie to them, do not play games with them, do not f*** them over by telling other people things that are not true, do not blame them for things that they have not done. Be honest with them and tell them if there is something wrong. If you do not this could happen to YOU!! People do not like being f***** with, and after so much s*** they can go off the deap [sic] end!! Had to [sic] much s***!!!

Petitioner was charged with first-degree murder, armed criminal action, first-degree burglary, and unlawful possession of a firearm by a felon. The jury found Petitioner guilty on all counts.

During the penalty phase of the trial, the government presented evidence that Petitioner

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had assaulted his ex-wife and also was convicted of assault and battery for handcuffing and beating another ex-girlfriend until she was unconscious. Additionally, there was evidence that Petitioner had threatened other people before the murder. Petitioner presented mitigating evidence from his mother, sister, pastor, and ex-wife.

The jury recommended a death sentence after finding two statutory aggravating circumstances: (1) that Petitioner had previously been convicted of a serious assault, and (2) that Petitioner had murdered Victim while committing another unlawful homicide. On November 26, 2013, the trial court sentenced him to death on the murder charge, 15 years in prison for armed criminal action, 15 years for burglary, and 7 years for being a...

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