OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at the Crossroads Correctional Center in Cameron, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 convictions and sentences for second-degree murder and armed criminal action, which were entered in the Circuit Court of Cass County, Missouri. Petitioner's convictions were affirmed on direct appeal. Doc. No. 11-9. Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied following an evidentiary hearing (Doc. No. 11-11, pp. 50-56), and that denial was affirmed on appeal therefrom (Doc. No. 11-15).
Petitioner raises two grounds for relief: (1) there was insufficient evidence to support his conviction for felony murder; and (2) the trial court erred in allowing the prosecution to use Petitioner's post-Miranda1 silence and request for an attorney as evidence of guilt. Doc. No. 1, pp. 17-22. Respondent contends that both grounds are without merit. Doc. No. 11, p. 3.
In affirming Petitioner's convictions and sentences, the Missouri Court of Appeals, Western District, set forth the following facts:
On Sunday, January 28, 2007, Sheldon Haynes ("Victim") left his home at 322 Mulberry in Raymore to go bowling at Premier Bowling in Raytown. That night the victim was wearing two pieces of jewelry: a diamond pinkie ring and a necklace with a white gold "Jesus piece" with yellow diamonds. The victim was bowling with Reginald Perkins, "Rick," "Frank," and some of their girlfriends and children.
Bowling in the lane next to the victim's group were Morrow, his girlfriend Sherita Jackson ("Jackson"), his friend Dwayne Turinteen ("Turinteen"), and Turinteen's girlfriend "Red." Jackson spoke with the victim as they were acquaintances and had attended cosmetology school together several years earlier. Later, Rick, who was intoxicated, bowled a ball down the lane being played by Morrow's group and then made an inappropriate comment to one of the women in the group. Morrow was offended, but the situation was diffused when the victim's group removed Rick from the confrontation. Law enforcement was able to track some of Morrow's activities throughout the evening by tracing the cell phone towers that were accessed by Morrow's cell phone as he made and received calls. Morrow made and received twenty-two calls from his cell phone between 7:33 p.m. and 10:35 p.m. while he was at Premier Bowling Alley, each call using the 83rd Street cell phone tower, a few blocks east of the bowling alley.
Meanwhile Morrow's brother, Wayland Morrow ("Wayland"), and his girlfriend, Casey Flowers ("Flowers"), were using Morrow's white Dodge Durango to do some shopping. Around 9:00 p.m., they finished using the vehicle and dropped it off at Jackson's residence, where Morrow was staying. Flowers then dropped Wayland back at his house and went to work, which began at 10:30 p.m. Morrow and Jackson returned to her apartment at 10:00 p.m. after leaving the bowling alley. Jackson's apartment is located at 3233 Park Street in Kansas City, Missouri. While at Jackson's apartment, Morrow made several calls. Around 11:00 p.m., Morrow called Carlton White ("White"), a relative of Morrow's and a friend of the victim. Morrow complained that Rick had been rude to Jackson at the bowling alley and asked White to call Rick to discuss his behavior.
Cell phone records show that at 11:33 p.m. Morrow called his brother Wayland, and that call used the same cell phone tower on 27th Street that Wayland's cell phone used when he made calls from Jackson's apartment earlier in the evening. By 11:59 p.m., Morrow's cell phone was utilizing cell towers located in Raymore. Morrow called Turinteen at 11:55 p.m., 11:59 p.m., 12:00 a.m., and 12:21 a.m. The final two calls to Turinteen were using a cell phone tower located a few blocks from the victim's home. The final call from Morrow's phone prior to the victim's death was to his brother Wayland; both phones used the tower closest to the victim's home.
The victim left the bowling alley at midnight in his dark gray Volvo. Sometime after midnight, Chad Heggem ("Heggem"), who lived in the same subdivision as the victim, noticed a white Dodge Durango stopped outside his home. It was a parked with its lights off but he could see the light of a cell phone and a person in the driver's seat. The Durango remained parked there for a couple minutes. Heggem heard a bang in the distance and then saw the Durango drive past Heggem's home and closer to the home of the victim. The Durango stopped to let an African American male enter the vehicle and then quickly fled. The person who entered the vehicle was wearing a brown Carhart-style jacket and appeared to be heavy set, but Heggem did not get a good look at the person's face.
The victim's fiancé, Michelle Brown ("Brown"), was awakened by her barking dog and then heard a loud noise. She got out of bed and saw someone running away down the street, wearing a dark tan jacket. She saw him get in a white Dodge Durango and drive away.
Jay Humphrey ("Humphrey"), who lived across the street from the victim, woke up when he felt his house shake around 12:30 a.m. He looked outside and saw that a car had struck his house. He told his wife to call 911 and went outside. Humphrey found the victim slumped over in his car and notified Brown at her home.
When police arrived, the victim's car was resting against Humphrey's house still running and in reverse. The driver's window was rolled down and the victim had been shot once in the head. The victim was already dead when paramedics arrived. No jewelry was found on the victim, and the two pieces Brown says he was wearing the night of the murder were never recovered. A single .38 caliber bullet was found inside the front passenger door panel but no shell casing was discovered. Police found the victim's .45 caliber handgun inside the vehicle, between the seats with the safety still engaged.
The next call that night from Morrow's cell phone was at 12:52 a.m., and the signal used the cell tower at 67th and Spruce, moving north from Raymore toward Kansas City. Wayland's phone was recorded as using the Meyer Boulevard/Research Hospital Tower at 12:55 a.m., and finally, by 1:10 a.m., Morrow's phone was using the Prospect tower and Wayland's used the 27th Street tower, consistent with both men arriving back at their respective homes. The following day, January 29, 2007, Morrow had his cell phone disconnected.
Police investigation led them to Morrow as a suspect. Police interviewed Morrow on February 1, 2007, at which time they first searched Morrow's white Dodge Durango with Morrow's consent. No evidence connected to the crime was discovered in that search. Morrow then drove the Durango to the police station where he voluntarily gave an interview. Morrow voluntarily handed over to police his brown jacket for forensic testing, but he would not consent to leave the Durango. The police seized the Durango and obtained a search warrant to seek forensic evidence therein. A small amount of blood was found in the back seat of theDurango, and DNA tests later revealed the blood came from the victim. Morrow was found guilty by a jury. The court sentenced him to consecutive terms of life in prison for murder and twenty years for armed criminal action . . . .
Doc. No. 11-9, pp. 4-7.
Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254(e)(1).2 Because the state court's findings of fact have fair support in the record and because Petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.
In Ground 1, Petitioner argues that there was insufficient evidence to support his conviction for felony murder, because the State failed to present sufficient evidence of the underlying robbery. Doc. No. 1, pp. 17-19. Claims of insufficient evidence to support a verdict face "a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012). The first layer of deference is on direct appeal, where "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.'" Id. (quoting Cavazos v. Smith, 565 U.S. 1 (2011)). A second layer of deference then applies on habeas review, where "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because thefederal court disagrees with the state court." Id. Rather, "[t]he federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Id.
The Missouri Court of Appeals, Western District, denied Ground 1 as follows:
Felony murder requires the State to show that the victim was killed as the result of the perpetration or attempted perpetration of a felony. Section 565.021.1(2). The underlying felony alleged by the State in the case at bar was robbery in the first degree. Robbery in the first degree requires the State to prove that Morrow forcibly stole property and in the
...
