Pennell v. Pash, Case No. 4:17CV849JCH
| Decision Date | 13 July 2018 |
| Docket Number | Case No. 4:17CV849JCH |
| Parties | MICHAEL PENNELL, Petitioner, v. RONDA PASH, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Missouri State prisoner Michael Pennell. (ECF 2). The motion is fully briefed and ready for disposition.1
On March 28, 2012, in the Circuit Court of Ralls County, Missouri, a jury found Petitioner guilty of two counts of distribution, delivery, or sale of a controlled substance, in violation of Mo. Rev. Stat. § 195.211. (ECF 9.4 at 87-88). On March 28, 2012, the trial court sentenced Petitioner, as a prior and persistentoffender, to 20 years imprisonment for each count with the sentences to be served concurrently. (ECF 9.4 at 93). On April 23, 2013, the Missouri Court of Appeals affirmed Petitioner's conviction and sentence. (ECF 9.3). Petitioner timely filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15 (ECF 9.10 at 6-19), which was denied (ECF 9.10 at 74-91). The Missouri Court of Appeals affirmed the denial of post-conviction relief on March 29, 2016, and issued the mandate on April 20, 2016. (ECF 9.8 and .9).
In his § 2254 Petition, Petitioner raises the following claims for relief:
(ECF 1).
EXHAUSTION, PROCEDURAL DEFAULT AND TIMELINESS
To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles tothe facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. Cir. 2003) (quotation marks omitted). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted may not give rise to federal habeas relief unless the petitioner can demonstrate cause and prejudice for the default. Id.
The United States Supreme Court has held that a state prisoner can overcome procedural default if he or she can demonstrate cause and prejudice for the procedural default. Dretke v. Haley, 541 U.S. 386, 388 (2004). See also Sawyer v. Whitley, 505 U.S. 333, 338-39 (1992) (); Coleman v. Thompson, 501 U.S. 722, 750 (1991) (holding that a state habeas petitioner can overcome procedural default by demonstrating cause for the default and actual prejudice or demonstrate that default will result in a fundamental miscarriage-of-justice; Battle v. Delo, 19 F.3d 1547, 1552 (8th Cir. 1994). The United States Supreme Court has held that because the "cause and prejudice standard is not aperfect safeguard against fundamental miscarriages of justice" the Court has "recognized a narrow exception to the cause requirement where a constitutional violation has 'probably resulted' in the conviction of one who is 'actually innocent' of the substantive offense." Dretke, 541 U.S. at 393 (citing Murray v. Carrier, 477 U.S. 478, 496 (1986); Schlup v. Delo, 513 U.S. 298 (1995)). "[A] habeas petitioner who wishes to have a procedurally defaulted claim evaluated on its merits 'must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty] under the applicable state law.'" McCoy v. Lockhart, 969 F.2d 649, 651 (8th Cir. 1992) (citation omitted).
Actual innocence is required to meet the miscarriage-of-justice exception. See Sweet v. Delo, 125 F.3d 1141, 1152 (8th Cir. 1997) (citing Schlup, 513 U.S. at 316). A "'bare, conclusory assertion' that a petitioner is actually innocent is insufficient to excuse a procedural default." Sweet, 125 F.3d at 1152 n.9 (citing Weeks v. Bowersox, 119 F.3d 1342, 1352-55 (8th Cir. 1997)). To meet the requisite standard for a probability of innocence a habeas petitioner must show that "it is more likely than not that no reasonable juror would have convicted him in light of new evidence." Schlup, 513 U.S. at 327 (emphasis added). See also Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005). Evidence is "new" if it was "not available at trial and could not have been discoverable earlier through the exerciseof due diligence." Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001).
"Cause for a procedural default exists where 'something external to the petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the State's procedural rule.'" Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original) (quoting Coleman, 501 U.S. at 753) (internal quotation marks and citation omitted). "[T]he precise contours of the cause requirement have not been clearly defined." Ivy v. Caspari, 173 F.3d 1136, 1140 (8th Cir. 1999). It has been held that "novel circumstances and arguments" may constitute cause to excuse procedural default. McKinnon v. Lockhart, 921 F.2d 830, 833 (8th Cir. 1990). "[T]he Supreme Court [has] recognized that cause may exist when the claim raised is so novel that there was no reasonable basis to have asserted it at the time of a petitioner's state appeals." Id. at 833 (citing Reed v. Ross, 468 U.S. 1, 16 (1984)). However, "[if] the 'tools were available' for a petitioner to construct the legal argument at the time of the state appeals process, then the claim cannot be said to be so novel as to constitute cause for failing to raise it earlier." McKinnon, 921 F.2d at 833 (citing Leggins v. Lockhart, 822 F.2d 764, 766 (8th Cir. 1987)).
In regard to the "prejudice" component of "cause and prejudice," as discussed above, "actual prejudice" is required to overcome the procedural bar. Zinzer v. Iowa, 60 F.3d 1296, 1299 n.7 (8th Cir. 1995). The Eighth Circuit holdsthat the "'prejudice' component of 'cause and prejudice'" necessary to excuse procedural default is "analytically distinct" from the prejudice required to establish constitutionally ineffective assistance of counsel as articulated in Strickland v. Washington, 466 U.S. 668 (1984). Zinzer, 60 F.3d at 1299 n.7. The "'actual prejudice' required to overcome the procedural bar must be a higher standard than the Strickland" standard. Id. (citing United States v. Frady, 456 U.S. 152, 165-68 (1982) ().
Petitioner did not raise the issues of Grounds 1 through 4 either on direct appeal or in the appeal of his post-conviction relief motion. As such, the Court finds that he has procedurally defaulted Grounds 1 through 4. See Coleman, 501 U.S. at 731-32; Wemark, 322 F.3d at 1020-21. The Court may, therefore, reach the merits of Petitioner's Grounds 1 through 4 only if Petitioner can make a showing of cause and prejudice, or demonstrate "that the failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
In support of Grounds 1 through 4, Petitioner does assert that he was innocent of the charges against him. (ECF 1 at 5, 7-10). He supports this claim only with his own declarations; he does not suggest any new evidence which would support his assertion of innocence. As stated above, such a bare assertion of innocence is insufficient to excuse a procedural default. See Sweet, 125 F.3d at1152 n.9.
Liberally construing Petitioner's Petition, Petitioner also asserts ineffective assistance of appellate counsel should excuse his procedural default of Grounds 1 through 4, as he states that his court appointed lawyer would not raise the issue of Ground 1 on appeal (ECF 1 at 6); that he did not raise the issue of Ground 2 on appeal because his "State appointed counsel was working with the State to violate [his] rights" (ECF 1 at 7); that State appointed counsel would not raise the issue of Ground 3 on appeal (ECF 1 at 9); and that he took Ground 4 "as far as [his] State appointed attorney would take it" (ECF 1 at 10).
In regard to ineffectiveness of counsel as grounds to excuse procedural default, "[i]neffective assistance of trial or appellate counsel may be cause excusing a procedural default." Williams v. Kemna, 311 F.3d 895, 897 (8th Cir. 2002) (citing Murray v. Carrier, 477 U.S. 478, 491-92 (1986)). "However, in order to urge ineffective assistance as cause excusing a procedural default, the federal habeas petitioner must have properly raised the ineffectiveness claim in state court." Williams, 311 F.3d at 897 (citing Edwards v. Carpenter, 529 U.S. 446, 450-53 (2000); Tokar v. Bowersox, 198 F.3d 1039, 1051 n.13 (8th Cir. 1999)). Petitioner did argue, before the motion court and the Missouri appellate court that direct appeal counsel was ineffective for failing to argue that there was insufficient evidence to...
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