Hurley v. Cassady

• Decision Date: 21 August 2014
• Docket Number: Case No. 14-3094-CV-S-MDH-P
• Parties: KAREEM A. HURLEY, Petitioner, v. JAY CASSADY, Respondent.
• Court: U.S. District Court — Western District of Missouri

KAREEM A. HURLEY, Petitioner, v. JAY CASSADY, Respondent.

Case No. 14-3094-CV-S-MDH-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

August 21, 2014

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner, who is currently confined at Jefferson City Correctional Center in Jefferson City, Missouri, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his 2005 convictions and sentences for forcible rape, second degree assault, and armed criminal action in the Circuit Court of Greene County, Missouri. Petitioner's convictions were affirmed on direct appeal. State v. Hurley, 208 S.W.3d 291 (Mo. Ct. App. 2006). Petitioner filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15, the denial of which was affirmed. (Respondent's Exhibit I).

Petitioner raises six grounds for relief. (1) that the trial court erred by allowing L.C. as a rebuttal witness; (2) that trial counsel was ineffective for failing to call Lemmie Bookman to contradict the testimony of M.C.; (3) that post-conviction appellate counsel was constitutionally ineffective for failing to brief on appeal that trial counsel unreasonably failed to call Claudette Jenks as a witness; (4) that petitioner was denied effective assistance of post-conviction appellate counsel because counsel unreasonably failed to call Thomas Litsey as a witness; (5) that petitioner was denied effective assistance of post-conviction appellate counsel because counsel unreasonablyfailed to establish that the S.A.F.E. exam did not show petitioner's semen; and (6) that petitioner was denied effective assistance of post-conviction appellate counsel because counsel unreasonably failed to file a motion in limine to establish the chain of custody of the victim's underpants. Respondent contends that petitioner's Grounds 1 and 2 are without merit, and Grounds 3, 4, 5, and 6 are procedurally defaulted. The court notes that Ground 1 and 2 are without merit, and the rest are procedurally defaulted.

FACTUAL BACKGROUND

In affirming the petitioner's convictions and sentences of the state circuit court, the Missouri Court of Appeals, Southern District, set forth the following facts:

[Petitioner] met Marilyn Clark ("Victim") in August 2003. During the course of their relationship, they frequently smoked crack cocaine together and occasionally engaged in sexual intercourse. On December 29, 2003, Victim accepted [petitioner]'s invitation to have dinner at his house. Soon after she arrived, [petitioner] offered her some crack cocaine to smoke. Victim took one hit and before she exhaled, [petitioner] stabbed her in the head. This was the beginning of [petitioner]'s violent attack of Victim in which he stabbed her multiple times, punched her in the face and chest, threatened to kill her, forced her to perform oral sex on him, and eventually raped her. After the attack, [petitioner] forced Victim to stay the night with him.

The next morning, Victim begged [petitioner] to let her go. [Petitioner] made Victim put a bandana on to cover the stab wounds on her head. He also forced her to apply makeup to conceal the bruises on her face. When Victim was outside with [petitioner], her ex-husband drove by. She jumped in the van with her ex-husband and went home. Because [petitioner] threatened Victim's children, she made sure they were safely out of town before calling the police later that day.

At trial, [petitioner] did not testify on his own behalf but presented three witnesses. Two of those witnesses were [petitioner]'s roommates, Earl Brown and his girlfriend Debbie Lovelass. Mr.

Brown stated that because his bedroom was next to the room where [petitioner] slept, he could hear when [petitioner] was moving around. Mr. Brown said that he did not hear any fighting or screaming the night of December 29, 2003, nor did he see any blood the next morning. Ms. Lovelass claimed she neither heard nor saw anything out of the ordinary during or after the alleged attack. On cross-examination, Ms. Lovelass admitted that she and Mr. Brown had been drinking that night and would not have heard anything after they fell asleep.

In rebuttal, over [petitioner]'s objection, the State called Victim's sixteen-year-old daughter, L.C. L.C. testified that when her mother returned home on the morning of December 30, 2003, she had on pale white makeup that she did not normally wear. L.C. described her mother's injuries and noted that Victim did not have them the day before. L.C. also noticed that her mother was acting unusually skittish, scared, and quiet.

(Respondent's Exhibit I, pages 1-3).

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254 (e)(1).¹ Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

GROUND 1 - TRIAL COURT ERROR ALLOWING WITNESS TESTIMONY

In Ground 1, petitioner contends that the trial court erred in allowing the state to call L.C.as a rebuttal witness. The Missouri Court of Appeals, Western District, denied Ground 1 as follows:

[Petitioner] alleges that the trial court's decision to allow L.C.'s testimony as rebuttal evidence was an abuse of the court's discretion. Appellant argues that "the prosecutor should have put on this evidence in his case-in-chief, and the testimony did not rebut the evidence presented by the defense." Appellant alleges that he was prejudiced because allowing L.C. to testify as a rebuttal witness "allowed the State to close its case with the emotional testimony of the sixteen-year-old daughter of the alleged forcible rape victim."

The admission and scope of rebuttal testimony is soundly within the trial court's discretion. State v. Ramsey, 710 S.W.2d 459, 461 (Mo. App. E.D. 1986). Absent a gross abuse of that discretion, an appellate court will not reverse the trial court's decision. State v. Hamilton, 892 S.W.2d 371, 379 (Mo. App. E.D. 1995). An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. State v. Brede, 198 S.W.3d 645, 647 (Mo. App. S.D. 2006).

Rebuttal testimony is any competent testimony that either directly or indirectly explains, counteracts, repels, or disproves evidence offered by [petitioner]. Ramsey, 710 S.W.2d at 461. Endorsement is not required for the State's rebuttal witness unless she is called to rebut a defense of alibi or mental disease or defect. State v. Bradley, 57 S.W.3d 335, 339 (Mo. App. S.D. 2001). Moreover, rebuttal testimony is not improperly admitted merely because it could have been used by the State in the State's case-in-chief. State v. Reese, 787 S.W.2d 768, 771 (Mo. App. W.D. 1990).

The trial court did not err in admitting L.C.'s rebuttal testimony because her testimony was entirely within the permissible scope of rebuttal witnesses. L.C.'s testimony was intended to both directly and indirectly contradict the testimony of Earl Brown and Debra Lovelass, both defense witnesses, that inferred that "nothing out of the ordinary" or violent occurred the night of December 29 or the morning of December 30. Therefore, because L.C.'s testimony was proper rebuttal testimony, the trial court did not abuse its discretion by admitting it.

(Respondent's Exhibit H, pages 14-15).

The state appellate court's findings are presumed to be correct under 28 U.S.C. § 2254(e)(1). A federal court is bound by a state court's interpretation of state law in federal habeas corpus proceedings unless petitioner's conviction violates the United States Constitution or federal law. Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Sweet v. Delo, 125 F.3d 1144, 1153 (8^th Cir. 1997), cert. denied sub nom. Sweet v. Bowersox, 523 U.S. 1010 (1998). Further, it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. 28 U.S.C.A. § 2254(a); Wilson v. Corcoran 131 S. Ct. 13, 16 (2010).

State trial courts are afforded wide discretion with evidentiary rulings. "Questions regarding admissibility of evidence are matters of state law, and they are reviewed in federal habeas inquiries only to determine whether an alleged error infringes upon a specific constitutional protection or is so prejudicial as to be a denial of due process." Rousan v. Roper, 436 F.3d 951, 958 (8th Cir. 2006) (citation and internal quotations omitted), cert. denied, 549 U.S. 835 (2006); see also Bell-Bey v. Roper, 499 F.3d 752, 759 (8th Cir. 2007), cert. denied, 128 S. Ct. 2426 (2008). "The exclusion [or admission] of [evidence] based on state evidentiary rules results in the denial of due process only if there was an impropriety so egregious that it made the entire proceeding fundamentally unfair." Skillicorn v. Luebbers, 475 F.3d 965, 972 (8th Cir. 2007) (citation omitted), cert. denied sub nom. Skillicorn v. Roper, 552 U.S. 923 (2007). "To meet this burden, a habeas petitioner must show that 'absent the alleged impropriety the verdict probably would have been different.'" Id. (quoting Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995) (rehearing denied)).

In rebuttal, the prosecution called L.C., the victim's teenage daughter, to the stand.Petitioner contends that L.C.'s testimony was prejudicial and violated his Constitutional rights "because it did not explain or...