Phares v. Norman
| Decision Date | 02 February 2021 |
| Docket Number | Case No. 4:19-CV-684 SRW |
| Parties | HOMER PHARES, Petitioner, v. JEFF NORMAN, Respondent(s). |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on the Petition of Homer Phares for a writ of habeas corpus under 28 U.S.C. § 2254. The State has filed a response and Petitioner replied. Both parties have consented to the exercise of plenary authority by a United States Magistrate Judge under 28 U.S.C. § 636(c). For the reasons set forth below, the petition for a writ of habeas corpus is denied.
Petitioner is currently incarcerated at South Central Correctional Center in Licking, Missouri. Petitioner was charged with one count of statutory rape in the first degree (Count I), two counts of statutory sodomy in the first degree (Counts II and III); and one count of child molestation in the first degree (Count VI). (ECF No. 10-3 at 17-18). On June 10, 2015, a jury found Petitioner guilty. The trial court sentenced him to consecutive terms of imprisonment of fifty years on Count I, thirty years on Count II, thirty years on Count III, and fifteen years on Count VI. (ECF No. 10-3 at 28-36, 64-67).
Petitioner filed a direct appeal to the Missouri Court of Appeals for the Eastern District, Case No. ED103500, claiming the trial court erred when it refused to allow Petitioner to fully adduce testimony from the minor victim regarding her previous accusation of sexual abuse by another individual. (ECF Nos. 10-3 at 68-72, 10-5 at 1-26). The state appellate court affirmed Petitioner's conviction and sentence on November 15, 2016, and a mandate was issued on December 8, 2016. (ECF No. 10-7 at 1-5). See State v. Phares, 503 S.W.3d 328 (Mo. Ct. App. Nov. 15, 2016).
On February 21, 2017, Petitioner filed a self-represented Motion to Vacate, Set Aside, or Correct the Judgment and Sentence pursuant to Rule 29.15. (ECF No. 10-8 at 7-16). On May 25, 2017, after the appointment of post-conviction counsel, Petitioner filed an Amended Motion under 29.15 and a Request for Evidentiary Hearing. (ECF No. 10-8 at 19-46). In the Amended Motion, Petitioner asserted three grounds for relief: (1) ineffective assistance of trial counsel in the penalty phase for failure to investigate, subpoena, and call additional mitigation witnesses; (2) ineffective assistance of trial counsel for failure to investigate and present evidence showing Petitioner was suffering from a mental disease or defect at the time of the crime; and (3) ineffective assistance of trial counsel for failure to adduce evidence of custom and usage that the victim lied. Petitioner's request for an evidentiary hearing and claims for post-conviction relief were denied by the Circuit Court for Washington County, Missouri on June 30, 2017. (ECF No. 10-8 at 47-51). See Phares v. State, No. 17WA-CC00059, 2017 WL 7806400, at *1 (Mo. Cir. June 30, 2017).
On July 17, 2017, Petitioner filed a notice of appeal with the Missouri Court of Appeals for the Eastern District. (ECF No. 10-8 at 53-55). Petitioner raised two issues on appeal from the Circuit Court's denial of post-conviction relief. (ECF No. 10-9 at 1-30). Specifically, Petitioner argued the motion court erred in denying him post-conviction relief because trial counsel was ineffective for failing to investigate and present testimony from a qualified psychiatrist at theguilt and penalty phases of trial to show, at the time of the crime, Petitioner suffered from a mental disease or defect caused by a series of strokes, and Petitioner could not conform his conduct to what the law required because of the brain damage he suffered from the strokes. On August 7, 2018, the Missouri Court of Appeals for the Eastern District affirmed the Circuit Court's denial of post-conviction relief on both points brought on appeal. (ECF No. 10-11 at 1-12). See Phares v. State, 553 S.W.3d 887 (Mo. Ct. App. Aug. 7, 2018).
On March 27, 2019, the instant § 2254 was filed. (ECF No. 1). Petitioner raises two grounds for relief. Ground One asserts Petitioner was denied due process because his "[a]rrest warr[a]nt was served on February 25, 2013, after it was initially issued on August 7, 2009," and "no reason was asserted for the delay." Ground Two asserts ineffective assistance of counsel for failure to call three fact witnesses at trial, Kathy Phares (grandmother of victim), Paul Phares (Kathy Phares's husband), and A.M. (victim's minor sister). (ECF Nos. 1 at 5, 7, 10-1 at 10, 153-43).
On June 27, 2019, Respondent filed his response. (ECF No. 9). As to Ground One, Respondent argues Petitioner defaulted his due process claim because he did not present the issue to the state courts, and Petitioner cannot overcome the default because he has not shown good cause or actual prejudice. (ECF No. 9 at 3-4). As to Ground Two, Respondent argues that although Petitioner "litigated the failure-to-call Kathy Phares and Paul Phares claim in the Rule 29.15 litigation," he "did not include the claim on post-conviction appeal" causing procedural default. (Id. at 5). Respondent further contends Petitioner failed to present his argument regarding counsel's failure to call A.M. as a witness in any of the prior state court proceedings, and this claim is also defaulted. (Id. at 6). Respondent contends he cannot overcome hisprocedural default of Ground Two because he has not shown good cause or actual prejudice. (Id. at 6-7).
In the Reply, Petitioner only addresses Ground Two. (ECF No. 13). Petitioner asserts: "if the three witnesses would have been allowed to testify on his behalf there would have been a possibility that the outcome of his trial would have been different." (Id. at 2). Specifically, Petitioner argues A.M. would have testified she "was within two feet" of the victim on the evening of the crime and she "did not see any type of touching." Kathy Phares would have testified the victim had a motive to falsely accuse Petitioner. (Id. at 3-5). Petitioner did not address Paul Phares in his Reply brief.
Pursuant to 28 U.S.C. § 2254, a district court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "[I]n a § 2254 habeas corpus proceeding, a federal court's review of alleged due process violations stemming from a state court conviction is narrow." Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995).
Federal courts may not grant habeas relief on a claim that has been decided on the merits in State court unless that adjudication:
28 U.S.C. § 2254(d)(1)-(2). "A state court's decision is contrary to . . . clearly established law if it applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if itconfronts a set of facts that are materially indistinguishable from a [Supreme Court] decision . . . and nevertheless arrives at a [different] result." Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A state court "unreasonably applies" federal law when it "identifies the correct governing legal rule from Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000). A state court decision may be considered an unreasonable determination "only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record." Ryan v. Clarke, 387 F.3d 785, 790-791 (8th Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).
A state court's factual findings are presumed to be correct. 28 U.S.C. § 2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010). Review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011). Clear and convincing evidence that state court factual findings lack evidentiary support is required to grant habeas relief. 28 U.S.C. § 2254(e)(1); Wood, 558 U.S. at 293.
In Ground One, Petitioner asserts his warrant for arrest was issued on August 7, 2009 but was not served until February 25, 2013. (ECF No. 1-1 at 5). Petitioner argues the delay violated his due process rights because it caused substantial prejudice to a fair trial and was an intentional device to gain a tactical advantage because of faded memories.1 (Id. at 5-6).
In support, Petitioner cites to the trial testimony of victim's cousin, April Phares, in which she stated she could not remember certain details from the evening the crime took place. (Id. at 5-10). In response, Respondent argues Petitioner has procedurally defaulted this claim by failing to present it at trial, in his motion for a new trial, or to the Missouri Court of Appeals on either direct or postconviction relief appeals. (ECF No. 9 at 3-4). Respondent further argues Petitioner cannot demonstrate actual prejudice from the default. Although Petitioner has filed a Reply, he does not address Ground One. (ECF No. 13).
It is well-established that the procedural default rule requires a habeas petitioner to pursue all available avenues of relief in the state courts before the federal courts can consider the claim. See 28...
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