Moore v. Sachse

• Decision Date: 14 March 2006
• Docket Number: No. 4:03CV364 FRB.,4:03CV364 FRB.
• Citation: 421 F.Supp.2d 1209
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Tony E. MOORE, Petitioner, v. Jennifer SACHSE,<SMALL><SUP>1</SUP></SMALL> Respondent.

421 F.Supp.2d 1209

Tony E. MOORE, Petitioner, v. Jennifer SACHSE,¹ Respondent.

No. 4:03CV364 FRB.

United States District Court, E.D. Missouri, Eastern Division.

March 14, 2006.

COPYRIGHT MATERIAL OMITTED

Tony Eugene Moore, Bonne Terre, MO, Pro se.

Lisa J. Berry, Stephen D. Hawke, Attorney General of Missouri, Jefferson City, MO, for Respondent.

MEMORANDUM AND ORDER

BUCKLES, United States Magistrate Judge.

This cause is before the Court on Missouri state prisoner Tony E. 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).

On December 17, 1999, a jury in the Circuit Court of St. Louis County, Missouri, found petitioner guilty of one count of Assault First Degree and one count of Armed Criminal Action. Petitioner was sentenced as a persistent offender to concurrent terms of twenty-five years' and fifteen years' imprisonment, respectively. (Resp. Exh. C at 177-78.) On February 13, 2001, petitioner's conviction and sentence were summarily affirmed on direct appeal. (Resp.Exhs.F, G.) Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. (Resp.Exh. H.) On December 24, 2002, the Missouri Court of Appeals summarily affirmed the

denial of post-conviction relief. (Resp.Exh. L.) The instant petition for writ of habeas corpus, signed and verified by petitioner on March 20, 2003, was filed in this Court on April 3, 2003, upon petitioner being granted leave to proceed in the cause in forma pauperis.

Petitioner is currently incarcerated at the Eastern Reception, Diagnostic and Correctional Center in Bonne Terre, Missouri. In the instant petition, petitioner raises five claims for relief:

1) That the trial court erred in denying his motion to suppress evidence inasmuch as such evidence was seized in violation of the Fourth Amendment; 2) That he received ineffective assistance of trial counsel in that standby counsel was not prepared to take over the trial when requested to do so by petitioner and the trial court;

3) That he received ineffective assistance of trial counsel during the pretrial stage of the proceedings inasmuch as counsel failed to procure critical evidence;

4) That he received ineffective assistance of direct appeal counsel in that counsel failed to brief and argue on appeal that the trial court committed plain error in denying petitioner relief on his motion for speedy trial; and

5) That he was denied due process in that the State failed to disclose evidence favorable to the petitioner.

In response, respondent argues that the claim raised in Ground 1 of the petition is not cognizable in a federal habeas proceeding and should be denied. Respondent further argues that the claims raised in Grounds 3, 4 and 5 are procedurally barred from federal habeas review inasmuch as petitioner failed to properly raise the claims in state court. Finally, respondent contends that the claim raised in Ground 2 is without merit and should be denied.

I. Non-Cognizable Claim

In his first ground for relief, petitioner claims that physical evidence presented in the underlying criminal cause of action was unlawfully seized inasmuch as such evidence was obtained as a result of an illegal search of his home in violation of his Fourth Amendment rights, thus resulting in a unlawful conviction in violation of his due process rights.

A state prisoner is precluded from asserting a Fourth Amendment claim as a basis for federal habeas relief unless the petitioner can demonstrate that the state courts have not afforded the petitioner a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Willett v. Lockhart, 37 F.3d 1265, 1270 (8th Cir.1994) (en banc); Cortis v. Kenney, 995 F.2d 838, 841 (8th Cir.1993). The Eighth Circuit has set forth a two-part test to determine whether a habeas petitioner has had an opportunity for a full and fair litigation of a Fourth Amendment claim in state courts. Willett, 37 F.3d at 1273. A Fourth Amendment claim is barred from federal habeas review under Stone v. Powell unless: 1) the State provided no procedure by which the petitioner could raise his Fourth Amendment claim, or 2) the petitioner was foreclosed from using that procedure because of an unconscionable breakdown in the system. Willett, 37 F.3d at 1273.

The first prong of the Willett test is satisfied in that the State of Missouri has a procedure by which petitioner could raise his Fourth Amendment claim. Id. at 1272 (Eighth Circuit unaware of any state that does not have such a procedure). As to the secant) prong there is no evidence before the Court to show that an unconscionable breakdown in the system prevented petitioner from raising the claim. A review of the record shows that the State provided petitioner with avenues by which to present Fourth Amendment claims and he took advantage of these opportunities to present such claims. Prior to trial petitioner filed motions to suppress in which he sought to suppress physical evidence obtained as a result of the alleged unlawful search. (Resp. Exh. C at 23-25, 48-50.) A hearing was held on the motions at which evidence was adduced, and the court subsequently denied the motions. (Resp. Exh. B-1, Exh. C at 57.) Petitioner challenged the court's ruling on direct appeal, upon which the Missouri Court of Appeals determined the trial court not to have erred in its ruling. (Resp.Exh. F.) Accordingly, a review of the record shows the State to have provided petitioner the opportunity for full and fair litigation of his Fourth Amendment claim and indeed, that petitioner availed himself of such opportunity to conclusion.

Inasmuch as petitioner has failed to demonstrate that the State did not afford him a full and fair opportunity to litigate his Fourth Amendment claim, the claim raised in Ground 1 of the instant petition is not cognizable in this habeas proceeding and should be denied.

II. Cognizable Claims

Petitioner's remaining claims appear to state claims that he is in custody in violation of his constitutional rights. Such claims are cognizable and thus may be addressed by this Court.

A. Exhaustion Analysis

A petitioner must exhaust his state law remedies before the federal court can address 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, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The Court must first look to see 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, 119 S.Ct. 1728. If not, the petitioner may still meet the exhaustion requirement if there are no currently available non-futile state remedies by which he 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. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (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, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).

A review of the record shows petitioner's remaining claims for relief to be exhausted either because petitioner has properly raised the claims in state court or has no available non-futile state remedy by which he could now pursue his claims.

B. Procedural Default

1. Ground 5—Favorable Evidence

In Ground 5, petitioner claims that he was denied due process of law in that the State failed to disclose favorable evidence to the petitioner, and specifically, the audiotape of a 911 emergency call petitioner placed from his home at or near the time of the offense. A review of the record shows petitioner not to have raised this claim on direct appeal. (Resp.Exh. D.)

Missouri procedure requires that a claim for relief be presented at each step of the judicial process. Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir.1994). The failure to raise constitutional claims of trial error on direct appeal precludes review of such claims in any further state court proceeding and thus results in a procedural default in the absence of rare and exceptional circumstances. Stallings v. State, 784 S.W.2d 862, 863 (Mo.Ct.App.1990); see also Jolly, 28 F.3d at 53; Kennedy v. Delo, 959 F.2d 112 (8th Cir.1992).

Petitioner failed to raise on direct appeal his current claim that he was denied due process at trial by the State's failure to disclose favorable evidence. As such, this claim is procedurally barred from review by this Court unless petitioner can show cause for his default and actual prejudice resulting therefrom, or demonstrate "that failure to consider the claim[ ] will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 731-32, 750, 111 S.Ct. 2546; Forest v. Delo, 52 F.3d 716, 719 (8th Cir.1995); Keithley, 43 F.3d at 1217. Petitioner has neither asserted nor shown cause for or prejudice as a result of his failure to properly pursue this claim in state court. Petitioner appears to invoke the "fundamental miscarriage of justice" exception, however, by claiming that no reasonable juror would have convicted him if they had been presented with the 911 tape. (See ...