Ivory v. Cassady
| Decision Date | 30 March 2018 |
| Docket Number | Case no. 4:14 CV 2093 RWS |
| Parties | CHRISTOPHER JAMES IVORY, Petitioner, v. JAY CASSADY and JOSH HAWLEY, Respondents. |
| Court | U.S. District Court — Eastern District of Missouri |
Petitioner Christopher James Ivory seeks federal habeas relief from a Missouri state court judgment entered after a jury trial.2 See 28 U.S.C. § 2254. With respect to ground 4, Petitioner requests an evidentiary hearing and a "Federal Public Defender."3 Additionally, Petitionermoves for a Certificate of Appealability ("COA") with respect to each of four grounds for relief [ECF Nos. 45, 46, 47, 48, and 49]. See 28 U.S.C. § 2253(c)(1). Finally, if the Court grants habeas relief because there is insufficient evidence of the attempted forcible rape (ground 2), Petitioner asks the Court to credit his sentence for the kidnapping offense (Count 2) with the time he has served on the attempted forcible rape offense (Count 1) [ECF No. 50]. Respondents filed a response to the petition, along with exhibits consisting of copies of materials from the underlying state court proceedings (except for the sentencing hearing transcript which Petitioner provided with the filing of his petition).4 Respondents did not respond to: Petitioner's requests for an evidentiary hearing and a "Federal Public Defender" with respect to ground 4, grounds 32 and 33, Petitioner's motions for COAs, and Petitioner's request for credit on his kidnapping sentence.
After careful consideration, the Court denies the petition because, of the thirty-one grounds for relief before the Court, twenty-six grounds are procedurally barred and may not be considered on their merits, one ground (ground 8) is not cognizable or moot, and the other four grounds (grounds 2, 26, 32, and 33) lack merit. The Court also denies Petitioner's request for an evidentiary hearing and a "Federal Public Defender" with respect to ground 4. Finally, the Court will not issue any COA and, because habeas relief is not granted with respect to ground 2, Petitioner's request for credit on his kidnapping sentence is denied.
Trial court proceedings
The State of Missouri charged Petitioner, as a prior offender,5 with committing attempted forcible rape in violation of Missouri Revised Statutes Section 566.030 (Count 1), kidnapping in violation of Missouri Revised Statutes Section 565.110 (Count 2), and second-degree robbery in violation of Missouri Revised Statutes Section 569.030 (Count 3).6 With respect to the attempted forcible rape charge in Count 1, the State specifically alleged Petitioner "demanded [Victim] pull down her pants and then tried to unfasten [Victim's pants] when she refused and straddled her . . . for the purpose of committing . . . forcible rape."7 For the kidnapping charge in Count 2, the State charged Petitioner with "unlawfully confin[ing Victim] without her consent for a substantial period, for the purpose of terrorizing [Victim]."8 With regard to the second-degree robbery charge in Count 3, the State charged Petitioner with "forcibly st[ealing] a purse in the possession of" Victim.9
In August 2010, after obtaining an evaluation of Petitioner's competency to stand trial and finding Petitioner fit to proceed,10 the trial court held a hearing,11 obtained a waiver of counsel signed by Petitioner, and granted Petitioner's motion to represent himself, appointing stand-by counsel for Petitioner "over objection."12 In appointing an assistant public defender as stand-by counsel for Petitioner, the trial court stated stand-by counsel was appointed "to consult with [Petitioner] during trial only but not to actively participate in the trial."13
Before voir dire began for the November 2010 trial, the parties stipulated that Petitioner had a prior felony conviction, and the trial court concluded "therefore the jury does not have punishment" to decide.14 In response to Petitioner's motion in limine and the trial court's inquiry, the prosecutor advised Petitioner and the trial court that she did not plan to bring up any prior bad act issues, so, unless "the door's opened," the prosecutor was not going to introduce or mention prior arrests, prior charges, or prior trials.15 The trial court asked the prosecutor to "approach the bench first before" she brought such information up if she thought she needed to introduce it, and she agreed to do so.16
The trial court also considered the parties' pretrial motions, including Petitioner's renewed motion to dismiss for speedy trial violations, which the State opposed and the trial court denied.17 Additionally, the trial court questioned Petitioner about his pro se status.18 In allowing Petitioner to proceed with trial pro se, the trial court concluded that Petitioner fully understood what he was doing by proceeding pro se, had "plenty of time to think about it," had received a full hearing in August 2010, had signed a waiver, and had received a "full explanation" about how the trial court would proceed.19
During trial, the State presented the testimony of (1) Victim (identified in this case as D.C., who was fifteen years old at the time of the incident)20 (2) two witnesses who heard Victim's screams that someone call the police and who placed the call to 911 ( Shamona Burch and Shamira Burch),21 (3) two officers with the St. Louis Metropolitan Police Department ("SLMPD") who investigated after the SLMPD received the 911 call (Officer Ryan Barone, who spoke with Victim and investigated at the scene, and Officer Reginald Jones, who looked for Petitioner after Officer Barone sent out Petitioner's name and picture),22 and (4), in rebuttal, Erin Duke, a biologist23 with the SLMPD crime lab who tested a blue polo shirt found near the sceneof the crime.24 Petitioner testified on his own behalf.25 In addition to presenting testimony, both parties introduced exhibits into evidence, including the blue polo shirt26 and a recording of the 911 call, which was played for the jury after the parties stipulated it was the recording of the 911 call "made in connection with this case."27
The trial court instructed the jury with respect to the charged offenses, as well as stealing from a person, a lesser-included offense for second-degree robbery, which was suggested by Petitioner and not opposed by the State.28 The jury found Petitioner guilty of attempted forcible rape, second-degree robbery, and stealing from a person.29 The trial court denied Petitioner's post-trial motions, including Petitioner's motion for a new trial and motion for acquittal,30 and sentenced Petitioner to consecutive terms of imprisonment of thirty years for attempted forcible rape, fifteen years for second-degree robbery, and seven years for stealing from a person.31Direct appeal
Petitioner was represented by an attorney in the direct appeal. Petitioner presented four points on appeal.32 First, Petitioner argued the trial court plainly erred by accepting Petitioner's waiver of counsel and permitting him to proceed pro se without first ascertaining whether Petitioner was competent to represent himself after Petitioner demonstrated fundamental misunderstanding about the conduct of a trial.33 Petitioner argued that this error violated his rights to due process and the effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments. Second, Petitioner contended there was insufficient evidence to support the attempted forcible rape conviction. He argued that the State did not establish the elements of the crime beyond a reasonable doubt, specifically whether he made a substantial step toward raping Victim or had the purpose to rape Victim.34 He argued that this lack of evidence violated his due process right to a fair trial as guaranteed by the Fifth and Fourteenth Amendments. Third, Petitioner argued that the trial court violated his rights to equal protection, due process, and a fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments by refusing to give the jury his lesser included offense instruction for false imprisonment. According to Petitioner, the kidnapping offense in Count 2 included all the legal and factual elements of false imprisonment; alternatively, the jury may have disbelieved that he had a purpose of terrorizing Victim.35 Fourth and Finally, Petitioner asserted the trial court should not have allowed the prosecutor to comment on, question Petitioner about, or present argumentsabout Petitioner's invocation of his right to represent himself, which incriminated and attacked Petitioner's character.36 Petitioner argued that by allowing these actions, the trial court plainly erred and violated his rights to due process and to act as his own attorney as guaranteed by the Fifth, Sixth, and Fourteenth Amendments.
The Missouri Court of Appeals for the Eastern District affirmed the trial court's judgment in an unpublished per curiam order accompanied by a memorandum sent to the parties only setting forth the reasons for the order affirming the judgment. See State v. Ivory, No. ED96414 (Mo. Ct. App. Sept. 18, 2012). In its decision, the Missouri Court of Appeals addressed the merits of points two and three, and reviewed Petitioner's first and fourth points together for plain error and on their merits. Id. The Court of Appeals issued its mandate on November 15, 2012, after the Missouri Supreme Court denied Petitioner's application for transfer.37
Post-conviction proceedings
Petitioner filed a pro se motion for post-conviction relief ("PCR") in 22nd Judicial Circuit Court for St. Louis City setting forth more than fifty claims for relief and a request for an evidentiary hearing.38 Through appointed counsel, Petitioner filed an amended PCR motion, asserting two claims additional to all claims presented by Petitioner in his pro se PCR motion, as well as a request for an evidentiary hearing.39 Without conducting a hearing, the motion courtdenied Petitioner's amended motion, specifically addressing each claim in the ...
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