Paulson v. Norman, Case No. 12-3229-CV-S-BCW-P

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Writing for the CourtBRIAN C. WIMES
PartiesLEROY PAULSON, Petitioner, v. JEFF NORMAN, Respondent.
Decision Date10 May 2013
Docket NumberCase No. 12-3229-CV-S-BCW-P

LEROY PAULSON, Petitioner,
v.
JEFF NORMAN, Respondent.

Case No. 12-3229-CV-S-BCW-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

Dated: May 10, 2013


OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS
AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Leroy Paulson, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on April 16, 2012, seeking to challenge his 2006 convictions and sentences for one count of first degree statutory rape and one count of first degree statutory sodomy, which were entered in the Circuit Court of Taney County, Missouri.

The petition raises five grounds for relief, alleging: (1) ineffective assistance of trial counsel; (2) there was insufficient evidence to convict the petitioner and the verdict was ambiguous; (3) prosecutorial misconduct; (4) the petitioner is actually innocent; and (5) petitioner has been denied due process and equal protection under the law because he has been denied access to evidence by prison officials.

Respondent contends that petitioner's third ground and several claims within the first and second grounds are procedurally barred as they were not presented in state court. (Doc. No. 17, pg 2). Further, respondent argues that petitioner fails to satisfy the two prong test to prevail on a claim of ineffective assistance of counsel, as set forth in Strickland v. Washington, 466 U.S. 668 (1984). Petitioner's remaining claims in ground two, according to respondent, fail to satisfy the requirements to show insufficient evidence as set forth in Jackson v. Virginia, 443 U.S. 307

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(1979). Id. at 3. As to petitioner's fourth and fifth grounds for relief, respondent contends they are not cognizable in a habeas corpus action.

SUMMARY OF THE FACTS

The Missouri Court of Appeals summarized the facts as follows:

Leroy E. Paulson ("Appellant") was convicted following a bench trial of one count of statutory rape, a violation of section 556.032, and one count of statutory sodomy, a violation of section 566.062. [Fn.1]. Appellant was sentenced to thirty years in the Missouri Department of corrections on each count with the sentences to run concurrently.
Fn.1 - All statutory references are to RSMo (2000).
Viewing the evidence in a light most favorable to the trial court's verdict, State v. Bewley, 68 S.W.3d 613, 615 (Mo. App. 2002), the record reveals that E.M., who was twelve years old at the time of trial, has resided in a home in Highlandville, Missouri, with K.M. ("Mother") and her three older brothers since 1998. [Fn.2]. E.M. testified at trial that appellant began touching her "wrongfully" when she was about four years old. E.M. testified that while Mother was at work in the evening appellant would force her to engage in sexual acts. E.M. testified that appellant "would touch [her] on [her] vagina [under her clothes with his fingers and the palm of his hand], and he'd make [her] touch him;" Appellant would "rub [her] chest" with his hand under her clothing; Appellant would insert his fingers inside her vagina; Appellant would ejaculate inside and outside of her vagina; Appellant put his penis inside her "butt hole;" and "pretty often" Appellant made her "rub" his penis until he ejaculated. E.M. testified that on one occasion Appellant made her "stick [a penis-shaped dildo] in his butt." E.M. also testified that Appellant "made [her] lick [his ejaculate] off of [her] hands...." She testified that on two occasions Appellant made her "suck on" his penis and when she tried to stop "[h]e'd hit [her] or yell at [her] or force [her] to do it." She stated she felt what he made her do "was nasty."
Fn.2 - Appellant, who was Mother's boyfriend has resided in the home for a number of years, but mother "kicked [him] out for using drugs" in the fall of 2002.

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E.M. also testified that Appellant told her what he was doing to her was "'a good thing, and everybody is doing it, and if [she] didn't do it, [she would] be an outcast and a bad person.'" She related he told her she was already "bad" and that she could not tell anybody about what he was doing to her or he would kill her and her family. According to E.M., Appellant also told her that if she "wasn't acting like such a slut that he wouldn't have done it and if [she] wasn't such a bad girl that he wouldn't do it...." Likewise, appellant told her she "was infected now, and if [she] told anybody it'd...kill [her], the disease." She stated he would often hit her if she refused his advances and he would tell her she was a "bad" and "naughty" girl. Appellant also told her "[t]his is fun for me. It should be fun for you," and that [i]t's an okay thing. It's fun."
Additionally, E.M. testified appellant put needles in her hands and he injected her with substances that made her "feel dizzy and sick and very tired." She stated appellant made her smoke cigarettes "[a]nd one time he had a metal pipe, and he put something in there." She also related that "[w]hen [Appellant] first started making [her] smoke cigarettes, [she] felt dizzy and sick. And then the one time he made [her] smoke [from the metal pipe], [she didn't] even know what it was, [she] felt sick to [her] stomach. [She] felt dizzy, lightheaded, and tired." She stated that oftentimes when she smoked she saw "odd shapes." E.M. also testified Appellant made her feel "[n]asty and violated and wrong;" "unwanted;" and "dirty." She stated she felt this way because she "didn't want it, and he made [her] do it."
Appellant offered the following evidence at trial. Angela Bounds ("Ms. Bounds"), E.M.'s former school counselor, testified that in November of 2002 E.M. informed Ms. Bounds that in addition to being abused by Appellant she was sexually abused by seven other men. Micki Lane ("Ms. Lane"), a child forensic examiner at the Child Advocacy Center ("the CAC"), testified she interviewed E.M. on videotape on November 27, 2002. [Fn.3]. Ms. Lane stated that when she asked E.M. to identify certain body parts on an anatomical drawing of a male, E.M. drew a tongue and labeled it in her own handwriting. Ms. Lane also testified that in addition to Appellant, E.M. informed her of having been sexually abused by nine other males of varying ages.
Fn.3 - The trial court ruled the videotape of the CAC interview could not be used in the State's case-in-chief because it lacked "sufficient indicia of reliability;" however, the trial court permitted the

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videotape to be used by appellant for impeachment purposes.
Mother testified she first learned of E.M.'s allegations against Appellant after E.M. discussed the abuse with Ms. Bounds at school. She stated E.M. had previously informed her "the old man that lived across the street" had touched her inappropriately, but Mother stated that E.M. had never before mentioned Appellant having touched her in an inappropriate manner. Mother also testified that E.M. seemed to have a "good, very good" reputation for telling the truth.
Cheryl Gamache ("Ms. Gamache"), a social worker in Christian County, Missouri, testified that she first came in contact with E.M. following E.M.'s disclosure to Ms. Bounds. She testified that she went to the school with Deputy Orville Choate ("Deputy Choate") of the Christian County Sheriff's Department. Ms. Gamache said that during her interview of E.M., E.M. made sexual allegations against "approximately five" people, including Appellant. After talking with E.M. at school, Ms. Gamache and Deputy Choate interviewed Mother. Ms. Gamache states Mother told her E.M. "Watches television and comes up with stories" and "had been kicked out of two Sunday school classes for telling stories and manipulation." She stated Mother "said [E.M.] is very unusual, difficult, and especially challenging."
Deputy Choate testified that during the initial interview conducted with Ms. Gamache at E.M.'s school E.M. made sexual allegations against "approximately eight" people, including Appellant. [Fn.4]. He related that Mother had told him that E.M. "was prone to embellish."
Fn.4 - At trial, E.M. stated she did not remember telling Ms. Bounds, Ms Gamache, Ms. Lane and Deputy Choate that she had been abused by numerous people.
As already set out, at the close of all the evidence, the trial court found appellant guilty of statutory sodomy and statutory rape. He was sentenced to thirty years in the Missouri Department of Corrections on each count with the sentences to run concurrently. This appeal by Appellant followed.

(Respondent's Exhibit E, pp. 1-5).

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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 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).1 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.

GROUND ONE

In ground 1,...

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