Marshall v. Lewis
| Decision Date | 23 April 2021 |
| Docket Number | Case No. 1:19-cv-00083 SRC |
| Parties | JOHN MARSHALL, Petitioner, v. JASON LEWIS Respondent(s). |
| Court | U.S. District Court — Eastern District of Missouri |
More than a year after filing a petition for writ of habeas corpus in federal court, and six months after this Court granted his request to stay the federal habeas proceedings so he could exhaust his state court remedies, Petitioner John Marshall filed a petition for writ of habeas corpus in Missouri state court in September 2020. Although he represented to this Court that he sought to exhaust a single claim when he initially requested a stay, his newly-filed state habeas petition asserts seven claims he had not previously raised. Despite his delay and assertion of entirely new claims, Marshall maintains that this Court may properly continue to stay the federal habeas proceedings until Missouri courts have ruled on his newly-filed state habeas petition. The Court finds that the circumstances do not justify a stay and therefore denies Marshall's motion to continue to stay and abeyance.
In 2013, a jury convicted Marshall of three counts of unlawful possession of a firearm, and the St. Louis City Circuit Court sentenced Marshall to consecutive sentences totaling nine years. In 2014, a St. Louis City jury found Marshall guilty of kidnapping and second-degree domestic assault. The court sentenced Marshall to ten years' imprisonment for kidnapping and seven years' imprisonment for domestic assault.
Marshall appealed his unlawful possession of a firearm conviction, which the Missouri Court of Appeals affirmed. Marshall also appealed his kidnapping and assault convictions and sentences. The Missouri Court of Appeals affirmed and issued its mandate on December 18, 2015. Following the affirmance of his kidnapping and assault convictions, Marshall sought relief under Missouri Supreme Court Rule 29.15. The court denied Marshall's post-conviction claims, and the Missouri Court of Appeals affirmed the denial of the post-conviction of relief. Doc. 15-10.
Marshall filed his federal petition for writ of habeas corpus on May 21, 2019. Doc. 1. He raises six grounds for relief. On January 3, 2020, Marshall filed a motion to stay his federal writ of habeas corpus proceedings so he could exhaust his state court remedies. Doc. 19. Marshall specified that he sought a stay so that he could exhaust a statute of limitations defense that his counsel refused to raise. Doc. 19. The Court granted the motion on April 7, 2020 and ordered Marshall to file a status report on the state habeas proceedings no later than October 1, 2020. Doc. 23.
On September 17, 2020, Marshall filed a motion to continue the stay and abeyance of his federal habeas proceedings. Doc. 24. In his motion, Marshall stated that he filed a writ of habeas corpus in the Circuit Court of Pike County. Id. In his state habeas petition, Marshall asserted seven claims not previously presented in state court nor asserted in his federal habeas petition. Doc. 30-2.
The Court issued an order on October 1, 2020, ordering Marshall to show cause why a stay is appropriate under Rhines v. Weber, 544 U.S. 269, 275-76 (2005). Doc. 26. In responseto the show cause order, Marshall stated that a stay was appropriate because "recently disclosed evidence (Exhibits A&B) clearly and unequivocally prove his innocence of the charged offenses." Doc. 27 at 1. Marshall further argued that because this evidence was only recently disclosed, he could not bring his claims at an earlier time. Doc. 27 at 1-2.
Because Marshall failed to attach both Exhibit A and Exhibit B to his show cause response, the Court ordered Marshall to provide these exhibits to the Court. Doc. 28. at 1-2. The Court also ordered Respondent Jason Lewis to respond to Marshall's Motion to Continue Stay and Abeyance, Doc. 24, and Marshall's Show Cause Response, Doc. 27. Doc. 28 at p. 2. Marshall provided Exhibits A and B to the Court., Doc. 29, which are Marshall's medical records, each dated to 2007 (Exhibit A), and his trial counsel's memo to casefile which includes counsel's notes about Marshall's case (Exhibit B). Lewis responded to the Court's order. Doc. 30.
28 U.S.C. § 2254(b)(1)(A) requires a petitioner to exhaust his state court remedies prior to filing a federal habeas petition. See also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). When a habeas petition contains unexhausted claims, the case must be dismissed without prejudice to afford the petitioner an opportunity to exhaust the claims in state court. Rose v. Lundy, 455 U.S. 509, 522 (1982). However, the Supreme Court has recognized that a federal habeas proceeding may be stayed to exhaust state court remedies in limited circumstances. Rhines v. Weber, 544 U.S. 269, 275-76 (2005); see also Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (). In Rhines, the Court explained that district courts should consider three factors indetermining whether a stay is appropriate: 1) whether good cause exists for the petitioner's failure to exhaust his claims in state court; 2) whether the unexhausted claims are plainly meritless; and 3) whether the petitioner has "engaged in intentionally dilatory litigation tactics." Id. at 277.
For Rhines to apply however, a state court remedy must exist for the state prisoner's unexhausted claim. Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005). "[I]f no state court remedy is available for the unexhausted claim—that is, if resort to the state courts would be futile—then the exhaustion requirement in § 2254(b) is satisfied, but the failure to exhaust 'provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default' (or actual innocence . . .)." Id. (quoting Gray v. Netherland, 518 U.S. 152, 162 (1996)). Therefore, "[t]o overcome [a] procedural default, [a petitioner] must show [either] cause for not presenting the [procedurally defaulted claim] . . ., and prejudice from the failure, or a fundamental miscarriage of justice - meaning that [the petitioner] is actually innocent." Storey v. Roper, 603 F.3d 507, 523-24 (8th Cir. 2010) (alterations in original).
Accordingly, the Court must first determine whether any state remedy remains available for Marshall. Marshall raises seven claims in his state habeas petition: 1) actual innocence of unlawful possession of firearm charge; 2) ineffective assistance of counsel for failure to introduce evidence establishing Marshall's innocence; 3) actual innocence of kidnapping and domestic assault charges; 4) ineffective assistance of counsel for failure to introduce evidence of Marshall's innocence; 5) ineffective assistance of counsel for failure to call Detective Stittmatter as a witness regarding the victim's injuries; 6) ineffective assistance of counsel for failing torequest a jury instruction about the statute of limitations for kidnapping and domestic assault; and 7) the state used false testimony to convict him. Except for Count VI, Marshall's claims each rely on the "new" evidence in Exhibits A and B.
"The relief available under a writ of habeas corpus has traditionally been very limited, and courts are not required to issue this extraordinary writ where other remedies are adequate and available." Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc. 2000) (citing State ex rel. Simmons v. White, 866 S.W.2d 443, 445-46 (Mo. banc 1993)). "[A] person cannot usually utilize a writ of habeas corpus to raise procedurally-barred claims—those that could have been raised, but were not raised, on direct appeal or in a post-conviction proceeding." Id. (citing White, 866 S.W.2d at 446.). Marshall failed to raise any of the seven claims asserted in his habeas petition on direct appeal or in his post-conviction motion and the deadline for raising these claims has passed. See Missouri Supreme Court Rules Rule 30.01(a); Rule 29.15(b). Rule 29.15(l) expressly provides that litigants cannot file successive post-conviction motions. See also State v. Parker, 274 S.W.3d 551, 555 (Mo. Ct. App. 2008) (). Because Marshall failed to previously raise the claims asserted in his habeas petition on direct appeal or in his post-conviction motion and cannot file a second post-conviction motion, his claims are in procedural default. State ex rel. Strong v. Griffith, 462 S.W.3d 732, 733-34 (Mo. banc 2015).
However, petitioners who raise procedurally-barred claims can still have the merits of their habeas petition reviewed if they can establish a gateway claim of actual innocence or a gateway claim of cause and prejudice. In re Lincoln v. Cassady, 517 S.W.3d 11, 17 (Mo. Ct. App. 2016) (). Toestablish a gateway claim of actual innocence, the petitioner must show it would be manifestly unjust to restrain the petitioner because newly-discovered evidence demonstrates actual innocence by a preponderance of the evidence. Id. (citing Amrine, 102 S.W.3d at 546). However, evidence is "new" only if it was "not available at trial and could not have been discovered earlier through the exercise of due diligence." State ex rel. Nixon v. Sheffield, 272 S.W.3d 277, 284 (Mo. Ct. App. 2008) (quoting Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005)). The "new" evidence Marshall relies upon does not constitute new evidence. The evidence was either available at trial or could have been discovered through the exercise of due diligence.
First, Marshall's medical records are...
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