McAllister v. Redington, 4:16cv558 RLW

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
PartiesEUGENE MCALLISTER, Petitioner, v. DAN REDINGTON, Respondent.
Docket NumberNo. 4:16cv558 RLW,4:16cv558 RLW
Decision Date06 September 2019

DAN REDINGTON,1 Respondent.

No. 4:16cv558 RLW


September 6, 2019


This matter is before the Court on the Petition of Eugene McAllister for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1) The Petition is fully briefed and ready for disposition.

I. Procedural History

Petitioner Eugene McAllister ("Petitioner" or "McAllister") is currently incarcerated at the Northeast Correctional Center ("NECC") located in Bowling Green, Missouri pursuant to the judgment and sentence of the Circuit Court of St. Louis County, Missouri. (Resp't's Ex. 3 pp. 42-46, ECF No. 10-5) On February 28, 2012, a jury found Petitioner guilty of two counts of first degree assault on a law enforcement officer, two counts of armed criminal action, and one count of unlawful use of a weapon by discharging a firearm from a motor vehicle. (Id. at pp. 35-39, 42-43) On April 26, 2012, the court sentenced him to concurrent terms of 20 years'

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imprisonment on each of the assault and armed criminal action counts, and a concurrent term of 15 years on the discharging a weapon from a motor vehicle count. (Id. at pp. 44-45) Petitioner filed a direct appeal, and on May 28, 2013, the Missouri Court of Appeals affirmed the judgment of the trial court.2 (Resp't's Ex. 7, ECF No. 10-9) Petitioner then filed a pro se Motion to Vacate, Set Aside, or Correct Judgment or Sentence pursuant to Missouri Supreme Court Rule 29.15 on July 3, 2013. (Resp't's Ex. 9 pp. 4-41, ECF No. 10-11) Appointed counsel filed an amended Rule 29.15 motion on September 21, 2013. (Id. at pp. 48-62) On May 13, 2014, the motion court denied Petitioner's motion for post-conviction relief. (Id. at pp. 66-77) The Missouri Court of Appeals affirmed the judgment of the motion court in a decision dated August 25, 2015. (Resp't's Ex. 12, ECF No. 10-14) On April 20, 2016, Petitioner filed the present petition for habeas relief in federal court. (ECF No. 1)

II. Factual Background3

On January 26, 2011, St. Louis police officer attempted to pull over a gray Dodge Stratus ("vehicle") pursuant to a traffic violation. The vehicle sped away on the wrong side of the road, and Officers Joseph Percich and Derik Jackson were dispatched to assist in the vehicle pursuit. The vehicle took a ramp, and as the officers proceeded behind, passengers in the rear seats raised themselves outside the windows and pointed handguns at the officers' car. Officer Percich identified McAllister as the individual on the rear driver's side. In addition, Officer Percich testified at trial the he saw McAllister fire one round from the revolver at the police car. Officer Jackson distinctly heard one shot fired at the police car, but both officers testified that more

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rounds could have been fired in rapid succession. When the vehicle finally came to a stop, the officers observed McAllister in the backseat with the grip of the handgun between his legs. The gun, a Smith & Wesson revolver, remained on the seat where McAllister had been sitting and contained five empty cartridges.

III. Petitioner's Claims

In his Petition, McAllister raises five grounds for federal habeas relief. These grounds are as follows:

(1) The evidence was insufficient to convict Petitioner of two counts of assault on a law enforcement officer and two counts of armed criminal action because Petitioner only discharged one shot at the police car;

(2) Trial counsel was ineffective for failing to request lesser included offense instructions for second-degree assault on a law enforcement officer;

(3) Trial counsel was ineffective for failing to obtain police dispatch tapes;

(4) Trial counsel was ineffective for failing to call Petitioner's co-defendants as witnesses; and

(5) Post-conviction counsel was ineffective for failing to raise a claim in the amended post-conviction motion that the prosecutor knowingly used perjured testimony at trial.

IV. Legal Standards

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), federal courts review state court decisions under a deferential standard. Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999). "[A] district court shall entertain an application for a writ of habeas corpus . . . only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, a federal court may not grant

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habeas relief unless the claim adjudicated on the merits in state court "'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.'" Owens, 198 F.3d at 681 (quoting 28 U.S.C. § 2254(d)(1)). Findings of fact made by a state court are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Gee v. Groose, 110 F.3d 1346, 1351 (8th Cir. 1997) (state court factual findings presumed to be correct where fairly supported by the record).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-413 (2000). With regard to the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413; see also Bucklew v. Luebbers 436 F.3d 1010, 1016 (8th Cir. 2006); Roman v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.

To preserve a claim for federal habeas review, a petitioner must present the claim to the state court and allow that court the opportunity to address petitioner's claim. Moore-El v. Luebbers, 446 F.3d 890, 896 (8th Cir. 2006) (citation omitted). "Where a petitioner fails to follow applicable state procedural rules, any claims not properly raised before the state court are

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procedurally defaulted." Id. A federal court will consider a defaulted habeas claim "only where the petitioner can establish either cause for the default and actual prejudice, or that the default will result in a fundamental miscarriage of justice." Id.

V. Discussion

In the instant case, Respondent asserts that all the claims are without merit. Further, Respondent contends that two of Petitioner's claims are procedurally barred from federal habeas review because Petitioner failed to pursue the claims in state court, and one claim is non-cognizable.

A. Claim One

Petitioner first claims that the evidence was insufficient to convict Petitioner of two counts of assault on a law enforcement officer and two counts of armed criminal action because Petitioner only discharged one shot at the police car. On direct appeal, Petitioner claimed that the trial court erred in entering judgment on the verdict because there was insufficient evidence to support a conviction for felony assault and armed criminal action with respect to Officer Jackson, who was the passenger in the pursuing police vehicle. He did not challenge the sufficiency of the evidence with respect to the driver of the police vehicle, Officer Percich. Petitioner argued that the evidence failed to show he had specific intent to kill or cause serious injury to Officer Jackson and instead demonstrated that he was not aiming at Officer Jackson. The Missouri Court of Appeals thoroughly addressed the claim and found:

A person commits the class A felony of assault of a law enforcement officer in the first degree when such person "attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer." Section 565.081, RSMo (Cum. Supp. 2012). Accordingly, a person also commits the felony of armed criminal action when such person commits any felony under the laws of this state by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon. Section 571.015.1, RSMo (2000).

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A defendant will be found guilty of first-degree assault of a law enforcement officer when, with the purpose of committing that offense of attempting to kill or cause serious physical injury, he takes a substantial step toward committing it. State v. Whalen, 49 S.W.3d 181, 186 (Mo. banc 2001). Substantial step is defined as "conduct [that] is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." State v. Williams, 126 S.W.3d 377, 381 (Mo. banc 2004) (citation omitted). To act with purpose is to have a conscious object to engage in certain conduct or to cause a certain result. Bryant v. State, 316 S.W.3d 503, 509 (Mo. App. E.D. 2010). Accordingly, a conviction for assault on a law enforcement officer requires proof of specific intent to kill or to cause serious physical injury. Id. Mere speculation as to a defendant's intent without more is not enough. See State v. Keeler, 856 S.W.2d 928, 931 (Mo. App. S.D. 1993). Specific intent is generally shown through circumstantial evidence. State v. Mann, 129 S.W.3d 462, 467 (Mo. App. S.D. 2004). Intent may be inferred from surrounding facts, such as the type of weapon used, the manner and circumstances under which it was used, and other relevant factors. State v. Burse, 231 S.W.3d 247, 252 (Mo. App. E.D. 2007).

Here, during the chase,

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