Martin v. Russell

• Decision Date: 30 March 2015
• Docket Number: Case No. 4: 12CV333 RLW
• Parties: JEROME MARTIN, Petitioner, v. TERRY RUSSELL, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

JEROME MARTIN, Petitioner, v. TERRY RUSSELL, Respondent.

Case No. 4: 12CV333 RLW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 30, 2015

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Jerome Martin's Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus By a Person in State Custody (ECF No. 1 ("Motion")). Because this Court has determined that Martin's claims are inadequate on their face and the record affirmatively refutes the factual assertions upon which Martin's claims are based, this Court decides this matter without an evidentiary hearing.¹

BACKGROUND

The Missouri Court of Appeals summarized the evidence regarding this case as follows:²

Tyrone Harris identified [Martin] as the driver of a black car that pulled up to his home the morning of September 7, 2002. Tyronne Harris testified that [Martin] asked if Torey Miller, Tyrone's brother, and Keyshia Harris, Tyrone's sister, were at home. Tyrone told him no, [Martin] left.

While walking to a nearby Mobile gas station later the same day, Keyshia Harris ("Victim") heard someone call her nickname from a black car. When she turned, the driver of the black car shot her in the chest. She later identified [Martin] as the shooter. The State provided evidence that [Martin] had a motive to shoot Victim because he believed her brother Torey Miller had killed his cousin.

Two years after the shooting, Victim and a friend, Terrel McMorris, saw [Martin] at a club. Mr. McMorris testified at trial that Victim was shocked to see [Martin], that Victim identified [Martin] as the person who shot her, and that [Martin] said he had shot Victim because of what her brother did. Victim and [Martin] argued. [Martin] was then detained by security guards.

(Respondent's Exhibit L).

In August 2004, Martin was indicted on charges of first-degree assault and armed criminal action for shooting Keyshia Harris ("Keyshia"). A jury found him guilty in September 2006 of both charges, and he was sentenced to 14 years' incarceration. The state court affirmed Martin's convictions and sentence. State v. Martin, 242 S.W. 3d 743 (Mo. Ct. App. 2007). Martin filed a Rule 29.15 motion for post-conviction relief, which was later amended by counsel. The motion court denied relief on September 14, 2009, after an evidentiary hearing. On March 15, 2011, the Missouri Court of Appeals affirmed the decision of the motion court. (Respondent's Exhibit L); Martin v. State, 333 S.W.3d 534, 535 (Mo. Ct. App. 2011).

On February 21, 2012, Martin filed this Motion seeking relief based upon the following overlapping grounds:

(1) Martin alleges a Brady³ violation with regards to five pieces of evidence which he alleges the State possessed, were exculpatory, and failed to turn over.

(2) Martin alleges trial counsel was ineffective for failing to present four separate pieces of evidence, three of which are the subject of the Brady claims.

(3) Martin claims that appellate counsel was ineffective for failing to raise the failure to the State to disclose the EMS record (one of the five records covered by the Brady claim) and for failing to allege that a mistrial should have been granted when the State referred to EMS involvement while cross-examining Martin's expert.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "[I]n a § 2254 habeas corpus proceeding, a federal court's review of alleged due process violations stemming from a state court conviction is narrow." Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995). "[A]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). '"A state court's decision is contrary to ... clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision ... and nevertheless arrives at a [different] result.'" Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). The Supreme Court has emphasized the phrase "Federal law, as determined by the Supreme Court," refers to "the holdings, as opposed to the dicta, of this Court's decisions," and has cautioned that § 2254(d)(1) "restricts the source ofclearly established law to [the Supreme] Court's jurisprudence." Williams, 529 U.S. at 412. A State court "unreasonably applies" federal law when it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. A State court decision may be considered an unreasonable determination "only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Ryan v. Clarke, 387 F.3d 785, 791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).

DISCUSSION

I. Ground One: Alleged Brady Violations

Martin claims that the State failed to disclose a prior plea or conviction of Terrel McMorris for making a false report. (ECF No. 1 at 25). Second, Martin asserts that the State failed to disclose a favorable deal that Ms. McMorris and Keyshia Harris received in their own cases. (ECF No. 1 at 25). Third, Martin asserts that the State failed to disclose the original police incident report, the subsequent investigative report, and the Circuit Attorney's Office's initial refusal to issue a warrant based upon Keyshia's refusal to cooperate. (ECF No. 1 at 25-26). Fourth, Martin maintains that the State failed to disclose a statement made in a public location and overheard by two members of the Circuit Attorney's Office by Keyshia in which Keyshia stated that Jennifer Davis had a member of her family shoot Keyshia. (ECF No. 1 at 26). Fifth, Martin alleges the State "knew" about the EMS report on Keyshia but failed to provide it to defense counsel. (ECF No. 1 at 26).

The Court first notes that no claim regarding any Brady or discovery violation was included in the motion for new trial. (Respondent's Exhibit C at 47-54). No claim regarding anyBrady or discovery violation was raised on direct appeal. (Respondent's Exhibit D). No claim regarding any Brady or discovery violation was raised in the pro se post-conviction motion. (Respondent's Exhibit H at 1-14). However, Martin did allege in the pro se motion that trial counsel was ineffective for failing to investigate and call Assistant Circuit Attorney Robert Craddick as a witness to impeach Ms. Harris. (Respondent's Exhibit H at 10-11).⁴ No claim related to any of these issues was included in the appeal from the denial of the amended motion. (Respondent's Exhibit J).

A. Failure to Properly Exhaust State Remedies/Default of State Remedies

Before presenting a claim for review in a federal habeas petition, a petitioner must properly exhaust his state remedies. 28 U.S.C. §2254(b). The "exhaustion requirement is satisfied only when the federal claim is 'fairly presented' to the state courts." Stranghoener v. Black, 720 F.2d 1005, 1007 (8th Cir. 1983). A claim is not fairly presented when factual allegations with a significant impact on the merits of the claim are raised for the first time in federal court. Id. For a claim to be fairly presented and for state remedies to be properly exhausted, a petitioner must have raised the claim on direct appeal or in state post-conviction proceedings. Davis v. Campbell, 608 F.2d 317, 321 (8th Cir. 1979).

Under Missouri law, claims not included in the amended motion for post-conviction relief are not considered to be before the motion court. Wills v. State, 321 S.W.3d 375, 386 (Mo. Ct. App. 2010); Self v. State, 14 S.W.3d 223, 226 (Mo. App. S.D.2000) ("Allegations in aprose motion that are not included in a subsequently filed amended motion are not for consideration."). When appellate court review of a post-conviction motion is available, failure to include a claim made to the motion court in an appeal operates as a procedural bar to consideration of such a claim by thefederal courts. Flieger v. Delo, 16 F.3d at 875. "A petitioner must present 'both the factual and legal premises' of his claims to the state courts in order to preserve them for federal habeas review." Flieger, 16 F.3d at 884 (citing Cox v. Lockhart, 970 F.2d 448, 454 (8th Cir. 1992). "A failure to exhaust remedies properly in accordance with state procedure results in procedural default of the prisoner's claims." Welch v. Lund, 616 F.3d 756, 758 (8th Cir. 2010).

The government contends that each of Petitioner's Brady claims were based on matters readily discoverable by post-conviction counsel and could have been included in the post-conviction motion. (ECF No. 8 at 15). The government contends that, to excuse Petitioner's procedural default, he would have to demonstrate cause based on a claim of ineffective assistance of post-conviction counsel and prejudice by showing that the claims had sufficient merit. (ECF No....