McArthur v. Bowersox

• Decision Date: 07 March 2016
• Docket Number: No. 4:14-CV-1660-SPM,4:14-CV-1660-SPM
• Parties: DAVID A. MCARTHUR, Petitioner, v. MICHAEL S. BOWERSOX, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

DAVID A. MCARTHUR, Petitioner, v. MICHAEL S. BOWERSOX, Respondent.

No. 4:14-CV-1660-SPM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 7, 2016

MEMORANDUM AND ORDER

This matter is before the Court on Missouri state prisoner David A. McArthur's ("Petitioner's") Petitioner's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and Petitioner's motion to hold habeas corpus petition in abeyance (Doc. 23). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 15). For the following reasons, both the petition for a writ of habeas corpus and the motion to hold the petition in abeyance will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following background is taken from the Missouri Court of Appeals' opinion affirming the motion court's denial of Petitioner's motion for post-conviction relief:

Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: [Petitioner] lived with his wife and her two children, Victim One and Victim Two. When Victim One was approximately nine years of age, [Petitioner] would rub lotion on Victim One's bottom and insert his penis into Victim One's anus. When Victim Two was between four and twelve years of age, [Petitioner] often woke her at night and inserted his finger in her vagina or made her suck or rub his penis. Twice, he tried to insert his penis in her vagina and once, he stuck a pen in her vagina. Eventually, Victims One and Two told their mother about [Petitioner]'s behavior, and she called the police.

The State charged [Petitioner] with one count of attempted statutory rape in the first degree and five counts of statutory sodomy in the first degree. The trial court held a three-day jury trial. During the first stage, Catherine Crowley, the assistant prosecuting attorney who tried the case against [Petitioner], presented the testimony of several witnesses including Victim One, Victim Two, and the victims' mother. [Petitioner] testified in his own defense, acknowledging that he had previously pleaded guilty to endangering the welfare of a child based on conduct occurring in 2004. He denied the allegations against him in this case, stating that he never touched either victim inappropriately. On cross-examination, [Petitioner] again admitted that he had pleaded guilty to endangering the welfare of a child. At the conclusion of the first stage of trial, the jury found [Petitioner] guilty of attempted statutory rape in the first degree and four counts of statutory sodomy in the first degree.

During the punishment stage,¹ Ms. Crowley presented the testimony of Victim One, Victim Two, the victims' mother, and [Petitioner]'s biological daughter. During her opening statement, Ms. Crowley told the jury that [Petitioner] had previously "pled guilty to endangering the welfare of a child in the first degree. He had originally been charged with statutory sodomy in the first degree. There was a plea bargain . . . . The victim in that case was his natural daughter . . . ." [Petitioner]'s daughter testified that when she was about thirteen years of age, [Petitioner] touched her vagina and asked if he could "put his mouth on [her] vagina." During closing argument, Ms. Crowley asked the jury to sentence [Petitioner] to life imprisonment because [Petitioner] already "had a second chance." Following the presentation of evidence, the jury assessed and declared punishment as life imprisonment for each conviction.

On April 28, 2010, the trial court orally pronounced its order, judgment, and sentence, imposing five concurrent terms of life imprisonment.

Resp't. Ex. I at 1-3 (footnotes omitted).²

In his direct appeal, Petitioner raised only one point of trial error: that the trial court erred when it allowed the State to present improper character evidence in the punishment phase that Petitioner had previously sexually molested his daughter. Resp't Ex. B at 12. The Missouri Court of Appeals affirmed the conviction and sentence. Resp't Ex. E at 1-4. Petitioner subsequently filed a pro se Rule 29.15 motion for post-conviction relief. Resp't Ex. F at 6-10. Throughappointed counsel, Petitioner subsequently filed an amended motion for post-conviction relief, asserting one claim of sentencing error and four different claims of ineffective assistance of trial counsel. Resp't Ex. F at 32-69. On October 3, 2012, after an evidentiary hearing, the motion court found the claim of sentencing error to be meritorious and vacated a portion of Petitioner's sentence, but it denied Petitioner's claims of ineffective assistance of trial counsel. Resp't Ex. F at 93-98. Petitioner appealed the motion court's denial of one of his ineffective assistance claims (failure to move to disqualify the Jefferson County Prosecuting Attorney's Office), and the Missouri Court of Appeals affirmed the motion court's decision. Resp't Ex. I.

On September 14, 2014, Petitioner filed his pro se petition in the instant action. Petitioner raised four claims: (1) violation of his due process rights based on the trial court's decision to allow the prosecution to present improper character evidence in the punishment phase; (2) ineffective assistance of trial counsel based on (a) the failure to move to disqualify the Jefferson County Prosecuting Attorney's Office and request the appointment of a special prosecutor, and (b) the failure to call impeachment witness Joan Bryan during the penalty phase of the trial; (3) prosecutorial misconduct based on the prosecutor's prejudicial argument and comments during the penalty phase; and (4) violation of Petitioner's due process rights based on the trial court's failure to instruct the jury that it could convict him of a lesser included offense. Respondent filed a response (Doc. 17), and Petitioner filed a traverse (Doc. 22).

Petitioner also filed a Motion to Hold Habeas Corpus Petition in Abeyance, in which he asks the Court to stay this case to permit him to return to state court to present his unexhausted claims. (Doc. 23). The Court will begin by addressing the motion to hold habeas corpus petition in abeyance.

II. MOTION TO HOLD HABEAS CORPUS PETITION IN ABEYANCE

A petitioner must exhaust his or her state law remedies before a federal court may grant relief on the merits of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Petitioner acknowledges that some of the claims in his petition have not been properly presented to the state court, suggests that those claims have not been exhausted, and asks this Court to stay the present action to permit him to return to state court to exhaust those claims. Petitioner is apparently asking the Court to use the "stay and abeyance" procedure outlined in Rhines v. Weber, 544 U.S. 269, 275-76 (2005), under which a district court confronted with a habeas petition containing both exhausted and unexhausted claims may stay the federal habeas action to permit the petitioner to present his unexhausted claims to the state courts before returning to federal court. Id.

No stay and abeyance is appropriate here, because Petitioner has no remaining nonfutile state court remedies and therefore has satisfied the exhaustion requirement. "[I]f no state court remedy is available for [an] unexhausted claim-that is, if resort to the state courts would be futile-then the exhaustion requirement in [28 U.S.C.] § 2254(b) is satisfied," though the claim may have been procedurally defaulted in state court. Armstrong v. Iowa, 418 F.3d 924, 926 (8th Cir. 2005). See also Coleman v. Thompson, 501 U.S. 722, 732 (1991) ("A habeas petitioner who has defaulted his claims in state court meets the technical requirements for exhaustion; there are no state remedies 'available' to him."); Winfield v. Wallace, No. 4:15-CV-959 CAS, 2015 WL 9489508, at *2-*3 (E.D Mo. Dec. 30, 2015) (denying motion to stay and abey because Petitioner had no non-futile state court remedies left to exhaust). In such cases, a stay and abeyance is unnecessary, and the federal district court must instead consider whether the claim has beenprocedurally defaulted and, if so, whether the default may be excused. Armstrong, 418 F.3d at 926.

Here, as to those claims Petitioner did not present to the state courts, there are no currently available, non-futile remedies by which Plaintiff could obtain review in the state court. Petitioner's motion for post-conviction relief and appeal have already been fully resolved by the state courts, and successive motions for post-conviction relief are not permitted. See Rule 29.15(l). Petitioner suggests that he was "abandoned" by counsel, which would permit the motion court to reopen a post-conviction judgment. See Spencer v. Missouri, 255 S.W.3d 527 (Mo. Ct. App. 2008) (once thirty days have passed since entry of judgment on motion for post-conviction relief, the motion court "has no jurisdiction to consider reopening a post-conviction judgment, except to address claims of abandonment by post-conviction counsel"). "Abandonment by post-conviction counsel occurs when: '(1) when post-conviction counsel fails to file an amended motion and the record shows the movant was deprived of meaningful review of the claims; or (2) when post-conviction counsel files an untimely amended motion.'" Eastburn v. Missouri, 400 S.W.3d 770, 774 (Mo. 2013) (quoting Moore v. Missouri, 328 S.W.3d 700, 702 (Mo. 2010), see also Gehrke v. Missouri, 280 S.W.3d 54, 57 (Mo. 2009). Here, however, Petitioner's post-conviction counsel filed both a timely amended motion and a timely appeal from the denial of that motion, so no abandonment occurred.

Petitioner also suggests that he needs to return to state court to file a state habeas petition under Mo. Sup. Ct. Rule 91. However, "Rule 91 is not a part of Missouri's established appellate review process and such a petition would not satisfy the...