Moore v. Larkins

• Decision Date: 13 August 2013
• Docket Number: No. 4:10CV1244 FRB,4:10CV1244 FRB
• Parties: ANTHONY G. MOORE, Petitioner, v. STEVE LARKINS, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

ANTHONY G. MOORE, Petitioner, v. STEVE LARKINS,¹ Respondent.

No. 4:10CV1244 FRB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: August 13, 2013

MEMORANDUM AND ORDER

This matter is before the Court on Missouri state prisoner Anthony G. Moore's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. All matters are pending before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).

I. Procedural History

On August 23, 2006, a jury in the Circuit Court of the City of St. Louis, Missouri, convicted petitioner of three counts of Attempt to Commit Forcible Rape, three counts of Forcible Sodomy, one count of Burglary in the First Degree, one count of Stealing, and one count of Resisting Arrest. (Resp. Exh. C at 56-64.) On November 17, 2006, petitioner was sentenced to a series of concurrent and consecutive terms of imprisonment, aggregating thirty-five years. (Id. at 83-88.) On December 18, 2007, the Missouri Court of Appeals affirmed petitioner's conviction and sentence. State v. Moore, 241 S.W.3d 422 (Mo. Ct. App. 2007) (order) (per curiam). Petitioner did not seek transfer to the Missouri Supreme Court. On March 20, 2008, petitioner filed a pro se Rule 29.15 motion for post-conviction relief, which was subsequently amended by appointed counsel and denied by the trial court after a hearing. (Resp. Exh. H.) On September 1, 2009, the Missouri Court of Appeals affirmed the decision of the trial court. Moore v. State, 291 S.W.3d 377 (Mo. Ct. App. 2009) (order) (per curiam). Mandate issued September 24, 2009. The instant petition was received by this Court on July 12, 2010, in an envelope with a postmark date of July 8, 2010. Applying the prison mailbox rule, see Henderson-El v. Maschner, 180 F.3d 984 (8th Cir. 1999), the petition was timely filed under 28 U.S.C. § 2244(d).²

In his petition, petitioner raises twelve claims for relief:

Ground 1: That trial counsel was ineffective for failing to strongly object to the victim's misidentification of petitioner in the courtroom;

Ground 2: That trial counsel was ineffective for failing to strongly object to a sleeping juror;

Ground 3: That trial counsel was ineffective for failing to investigate sources in order to impeach witnesses;

Ground 4: That the trial court erred in overruling petitioner's motion to dismiss improperly joined counts and/or to sever;

Ground 5: That trial counsel was ineffective for pursuing an argument inconsistent with his defense;

Ground 6: That the trial court erred in compelling the jury to reach a verdict within a certain time frame;

Ground 7: That trial counsel was ineffective for failing to object to statements made by the prosecutor, the introduction of hearsay statements, and statements made by the court regarding the judicial system;

Ground 8: That trial counsel was ineffective for failing to object to the prosecutor's closing argument;

Ground 9: That the trial court erred in failing to grant a mistrial because of the prosecutor's closing argument;

Ground 10: That the trial court erred in overruling petitioner's motion for judgment of acquittal inasmuch as there was insufficient evidence tosustain petitioner's conviction on Count IX of the Information, and because the victim misidentified petitioner in court;

Ground 11: That petitioner's conviction of the offenses charged in Counts IX and X violated the Double Jeopardy Clause; and

Ground 12: That trial counsel was ineffective for failing to call petitioner as a witness at the suppression hearing and at trial, and for failing to introduce petitioner's medical records at trial.

In response, respondent contends that the claims raised in Grounds 1 through 9 of the instant petition are procedurally barred from federal habeas review inasmuch as petitioner failed to properly pursue the claims in state court. Alternatively, respondent contends that the claims are without merit and should be denied. With respect to the claims raised in Grounds 10 through 12, respondent likewise argues that the claims are without merit and should be denied.

II. Exhaustion Analysis

A petitioner must exhaust his state law remedies before the federal court can grant relief on the merits of his claims in a habeas petition. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The Court must first examine whether the federal constitutional dimensions of the petitioner's claims have been fairly presented to the state court. Smittie v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988); see also Boerckel, 526 U.S. at 848. If not, the petitioner may still meet the exhaustion requirement if there are no currently available non-futile state remedies by whichhe could present his claims to the state court. Smittie, 843 F.2d at 296. When the petitioner's claims are deemed exhausted because he has no available state court remedy, the federal court still cannot reach the merits of the claims unless the petitioner demonstrates adequate cause to excuse his state court default and actual prejudice resulting from the alleged unconstitutional error, or that a fundamental miscarriage of justice would occur if the Court were not to address the claims. Martinez v. Ryan, _ U.S. _, _, 132 S. Ct. 1309, 1316 (2012); Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir. 1995); Stokes v. Armontrout, 893 F.2d 152, 155 (8th Cir. 1989). Before reviewing any claims raised in a habeas petition, the Court may require that every ground advanced by the petitioner survive this exhaustion analysis. Rhines v. Weber, 544 U.S. 269 (2005).

A review of the record shows petitioner's claims for relief to be exhausted because petitioner either properly raised the claims in state court upon which they were determined on their merits, or because petitioner has no available non-futile state remedies by which he could now pursue his claims.

III. Procedural Default

A. Grounds 4, 6 and 9 - Trial Court Errors

In Grounds 4, 6 and 9, petitioner claims that the trial court erred by failing to dismiss improperly joined counts or to sever, by improperly instructing the jury to return a verdictwithin a certain period, and by failing to grant a mistrial on the prosecutor's closing argument. Petitioner raised these claims in his pro se post-conviction motion. However, a review of the record shows petitioner not to have raised these claims on direct appeal.

A claim must be presented at each step of the judicial process in state court to avoid procedural default. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994). Under Missouri law, claims of trial error must be raised on direct appeal. Ham v. State, 7 S.W.3d 433, 440 (Mo. Ct. App. 1999). Claims of trial error are not cognizable in post-conviction proceedings. Johnson v. State, 615 S.W.2d 502, 506 (Mo. Ct. App. 1981). Because the petitioner here failed to raise the instant claims of trial error on direct appeal, the claims are procedurally defaulted and cannot be reviewed by this Court unless the petitioner shows cause for his default and prejudice resulting therefrom, or that a fundamental miscarriage of justice would occur if the Court were not to address the merits of the claims. Coleman, 501 U.S. at 750. A review of the file shows petitioner to arguably contend that direct appeal counsel's failure to raise the instant claims on direct appeal constitutes cause to excuse his procedural default.

Ineffective assistance of direct appeal counsel may constitute cause for procedural default. Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir. 1996) (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)). For the federal court to review such a claim as cause for default, however, the petitioner must have first presented thisSixth Amendment argument as an independent claim to the state courts if a forum existed to make the argument. Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000); Beaulieu v. Minnesota, 583 F.3d 570, 575 (8th Cir. 2009); Taylor v. Bowersox, 329 F.3d 963, 971 (8th Cir. 2003) (citing Murray, 477 U.S. at 489). Although petitioner could have raised a claim of ineffective assistance of direct appeal counsel in his Rule 29.15 post-conviction motion, see Mo. Ann. R. 29.15(a); Becker v. State, 77 S.W.3d 27 (Mo. Ct. App. 2002); Collins v. State, 54 S.W.3d 226, 229 (Mo. Ct. App. 2001), a review of the record shows that he did not do so. Nor does the record show petitioner to have raised a claim of ineffective assistance of direct appeal counsel in any state court proceeding. As such, this Court is precluded from addressing petitioner's claim of ineffective assistance of direct appeal counsel as cause to excuse the procedural default. See Taylor, 311 F.3d at 963. Petitioner has asserted no other cause to excuse his default of the instant claims of error.

Petitioner has thus failed to establish cause to excuse his procedural default, thus obviating the need for the Court to determine whether prejudice has been shown. Cagle v. Norris, 474 F.3d 1090, 1099 (8th Cir. 2007); Sherron v. Norris, 69 F.3d 285, 289 (8th Cir. 1995). In addition, because petitioner has failed to present any new, reliable evidence demonstrating that he is actually innocent of the crimes of which he was convicted, he has failed to show that a constitutional violation has probablyresulted in the conviction of one who is actually innocent and thus that a fundamental miscarriage of justice would occur if the Court were not to address his defaulted claims. Schlup v. Delo, 513 U.S. 298, 316 (1995) ("Without any new evidence of innocence, even the existence of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to reach the merits of a barred claim."). See also Kidd v. Norman, 651 F.3d 947 (8th Cir. 2011); Weeks v. Bowersox, 119 F.3d 1342, 1352-53 (8th Cir. 1997) (en banc) (bare, conclusory assertion...