McKellar v. Bowersox

• Decision Date: 21 November 2013
• Docket Number: No. 4:11CV737JCH,4:11CV737JCH
• Parties: RANDY L. MCKELLAR, Plaintiff, v. MICHAEL BOWERSOX, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

RANDY L. MCKELLAR, Plaintiff, v. MICHAEL BOWERSOX, Defendant.

No. 4:11CV737JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: November 21, 2013

MEMORANDUM AND ORDER

Before the Court is the Second Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Randy L. McKellar (Petitioner). (ECF No. 31). The matter is fully briefed and ready for disposition.¹

I.BACKGROUND

In 2005, Petitioner was charged with knowingly killing Trevor Neal by shooting him. Specifically, Petitioner was charged with felony murder in the first degree and armed criminal action in relation to Mr. Neal's murder. The testimony at Petitioner's trial was as follows.² Several months prior to the murder at issue, Petitioner was shooting dice with Mr. Neal, KevinWeakley, and a man referred to as "Antwon from Memphis" (Antwon), after which Petitioner was apparently robbed by Antwon. Petitioner became angered and declared that "he was going to get all three of them because they w[ere] cousins." After Antwon died in a car accident several weeks later, Petitioner again threatened Mr. Neal by telling him that he was "going to put [Mr. Neal] where [Antwon] was." About the same time, Petitioner told another of Mr. Neal's cousins, Mr. Hunt, about his dispute with Mr. Neal, and Mr. Hunt warned Petitioner not to bring the issue "to another level." (Resp. Ex. K at 2-3). Additionally,

Thereafter, during the week of the shooting, [Petitioner] was involved in a dispute with Mr. Neal and another of Mr. Neal's cousins, Dion Savage ("Mr. Savage"). During this incident, Mr. Neal knocked [Petitioner] out by punching him in the mouth. Several days later, [Petitioner] and his friend Justin Robinson ("Mr. Robinson"), were playing basketball when Mr. Robinson made the following comment to a group of people about Mr. Neal: "yeah, y'all see what he did to [Petitioner], but that's okay, because I got this [gun] for that boy . . . ." . . . Mr. Robinson then "patted on his waist on his gun" while [Petitioner] "nodd[ed] and grin[ed].

Then on May 23, 2003, Mr. Robinson and [Petitioner] were with a group of people on the street when Mr. Neal arrived. Mr. Robinson, who was standing beside [Petitioner] with a pistol visible in his pocket, told Mr. Neal that they were "going to get [him]. The parties then parted ways without an altercation. At around 2:30 a.m. in the early morning of May 24, 2003, Brandon Johnson ("Mr. Johnson") was driving a van with Sharron McGee ("Ms. McGee"), Samantha Davis ("Ms. Davis"), a man named Eli, Rico Brown, and Mr. Neal as passengers. As the van drove down Dixie Street in Sikeston, Mr. Robinson, who had been standing on the street with [Petitioner], stopped the van and asked the occupants if any of them had any marijuana. When Mr. Robinson saw Mr. Neal in the van, he reached inside the van, pulled the keys from the ignition, opened the door, pulled his gun out and ordered everyone to "[g]et . . . out of the van, get the hell out of the van." When Mr. Neal refused to exit the vehicle, Mr. Robinson held the gun toward him and ordered him to get out of the van again. Mr. Neal then jumped out of the window of the van and took off running down the street. Mr. Robinson pursued Mr. Neal and [Petitioner] began chasing after both of them. At some point in the chase, Mr. Robinson threw the gun down and continued the pursuit of Mr. Neal. [Petitioner] retrieved the gun and continued running. Mr. Robinson then caught Mr. Neal, tackling him to the ground, and the two began scuffling and rolling around. Mr. Robinson began yelling for [Petitioner], who approached with the gun in his hand. [Petitioner] then said "[f]uck it" and shot Mr. Neal one time.

Both Mr. Robinson and [Petitioner] then took off running. Mr. Neal later died in the hospital.

(Resp. Ex. K at 2-4).

The jury convicted Petitioner as charged, and the court sentenced him, as a prior offender, to life in prison without the possibility of parole on the murder charge and thirty years in prison for the armed criminal action, with the sentences to run concurrently. Petitioner filed a direct appeal. (Resp. Ex. C). The Missouri appellate court found Petitioner's arguments without merit and affirmed the judgment against him. Missouri v. McKeller, 256 S.W.3d 125 (Mo. Ct. App. 2008).

In June 2008, Petitioner filed a Rule 29.15 pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence. (Resp. Ex. G at 4-94). Counsel was appointed and filed an amended Rule 29.15 motion. (Resp. Ex. G at 95, 99-147). Following an evidentiary hearing, the motion court denied the amended motion. (Resp. Ex. G at 148-60). Petitioner appealed the motion court's denial of his amended Rule 29.15 motion, and the Missouri appellate court affirmed. (Resp. Ex. G).

In his § 2254 motion, Petitioner makes the following claims: (1) the trial court erred in allowing Robinson to invoke the Fifth Amendment; (2) the trial court erred in permitting Casey Blackmon to testify about what Robinson said prior to Mr. Neal's being shot; (3) Petitioner's counsel³ was ineffective for failing to object to trial court error in sustaining an objection to the admission of Blackmon's "written statement into evidence in its entirety as an exhibit for the jury to view during deliberations"; (4) Petitioner's counsel was ineffective for failing to challenge venire persons Susan Hubbard and Darla Carlyle; (5) the prosecutor deliberately usedBlackmon's and Hunt's perjured testimony; (6) Petitioner's counsel was ineffective for failing to object to Savage and Blackmon's hearsay testimony; and (7) Petitioner's counsel was ineffective for failing to investigate promises of leniency to Johnson and Hunt. (ECF No. 31).

II.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), applies to all petitions for habeas relief filed by state prisoners after this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas review pursuant to § 2254 a federal court is limited to deciding whether decisions of state courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). "'Federal law, as determined by the Supreme Court,' refers to 'the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Evenstad v. Carlson, 470 F.3d 777, 782-83 (8th Cir.2006) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). To obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he thinks the state courts acted contrary to or applied unreasonably. Id. at 283 (citing Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir.2006); Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir.2000)). Thus, where there is no federal law on a point raised by a habeas petitioner, a federal court cannot conclude either that a state court decision is "'contrary to, or involved an unreasonable application of, clearly established Federal law' under 28 U.S.C. § 2254(d)(1)." Id. at 784. "When federal circuits disagree as to a point of law, the law cannot be considered 'clearly established' under 28 U.S.C. § 2254(d)(1). Id. at 783 (citing Tunstall v. Hopkins, 306 F.3d 601, 611 (8th Cir. 2002)). See also Carter v. Kemna, 255 F.3d 589, 592 (8th Cir.2001) (holding that in the absence ofcontrolling Supreme Court precedent, a federal court cannot reverse a state court decision even though it believes the state court's decision is "possibly incorrect").

In Williams, 529 U.S. 362, the Supreme Court set forth the requirements for federal courts to grant writs of habeas corpus to state prisoners under § 2254. The Court held that " § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for writ of habeas corpus with respect to claims adjudicated on the merits in the state court." Id. at 412. The Court further held that the writ of habeas corpus may issue only if the state-court adjudication resulted in a decision that:

(1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal Law, as determined by the Supreme Court of the United States." 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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13.

The Court further explained in Williams that for a state-court decision to satisfy the "contrary to" prong of § 2254(d)(1), the state court must apply a rule that "contradicts the governing law as set forth in [Supreme Court] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Court's] precedent." 529 U.S. at 406. It is not necessary for a state-court decision to cite, or even be aware of, applicable federal law, "so long as neither the reasoning nor the result of the state-court decision contradicts" federal law. Early v. Packer, 537 U.S. 3, 8 (2002).

Additionally, § 2254(d)(2) provides that an application for writ of habeas corpus should not be granted unless the adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." Further, pursuant to § 2254(e)(1), "[a...