Prosser v. Norman

• Decision Date: 20 September 2011
• Docket Number: Case number 4:08cv0516 TCM
• Parties: TIMOTHY PROSSER, Petitioner, v. JEFF NORMAN and CHRIS KOSTER, Attorney General for the State of Missouri, Respondents.
• Court: U.S. District Court — Eastern District of Missouri

TIMOTHY PROSSER, Petitioner, v. JEFF NORMAN and CHRIS KOSTER, Attorney

General for the State of Missouri,¹ Respondents.

Case number 4:08cv0516 TCM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: September 20, 2011

MEMORANDUM AND ORDER

Timothy Prosser (Petitioner), a Missouri prisoner, petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from a 2004 conviction after a jury trial.² See 28 U.S.C. § 2254. Respondents filed a Response to the Order to Show Cause Why a Writ of Habeas Corpus Should Not Issue (Response), including copies of the record in the state court,³ and Petitioner filed a reply. Petitioner also filed asupplemental claim [Doc. 18], with attachments.⁴ Respondents filed a response, including attachments, to that supplemental claim,⁵ and Petitioner filed a reply supporting it.⁶ Petitioner also requests the appointment of counsel [Doc. 27; Doc. 28 at 3].

Finding the federal habeas petition and supplemental claim present five grounds for relief and concluding that these grounds are either not cognizable or are procedurally barred, the petition will be denied without further proceedings. Petitioner's motion for appointment of counsel will also be denied.

Background

Petitioner was charged in the Ste. Genevieve County Circuit Court with two felonies occurring on November 20, 2002: possession of methamphetamine, in violation of Mo. Rev. Stat. § 195.202, and unlawful possession of drug paraphernalia with intent to manufacture methamphetamine, in violation of Mo. Rev. Stat. § 195.233.⁷ (Page 1 of the Docket Sheet for the Associate Division of the Ste. Genevieve Circuit Court [Resp't Ex. D at 1]; Information, Tr. Legal File, Resp't Ex. C, at 10-11.)

Petitioner filed a motion to suppress all evidence obtained as a result of a search of Petitioner's residence on November 20, 2002. (Id. at 2; Pet'r Mot. Suppress, filed Jan. 6, 2003, Tr. Legal File, Resp't Ex. C, at 12-23; see also id. at 24-34, 39-41.) After a hearing, the Honorable Raymond M. Weber ("the associate circuit judge") overruled that motion. (Apr. 15, 2003, entry at page 3 of the Docket Sheet for the Associate Division of the Ste. Genevieve Circuit Court [Resp't Ex. D at 3; Resp't Ex. C at 1]; Mem. for Clerk, Resp't Ex. D at 4.) The associate circuit judge also transferred the case to the Circuit Court of Ste. Genevieve upon finding probable cause to believe that a felony had been committed by Petitioner. (See Page 3 of the Docket Sheet for the Associate Division of the Ste. Genevieve Circuit Court [Resp't Ex. D].) The Honorable Kenneth W. Pratte ("trial judge") then presided over the case, which was transferred to the Circuit Court for Madison County ("trial court") upon the granting of Petitioner's motion for change of venue. (Tr. Legal File, Resp't Ex. C, at 43.)

Petitioner filed a second motion to suppress. (Pet'r Mot. Suppress, filed Feb. 17, 2004, Tr. Legal File, Resp't Ex. C, at 66-78). The State filed an objection to a hearing on this second motion to suppress arguing in relevant part that evidence had been heard and briefs had been submitted on the issues when the first motion to suppress was pending before the associate circuit judge, and the first motion to suppress had been overruled by that judge. (Objection to Hr'g Mot. Suppress, Tr. Legal File, Resp't Ex. C at 79-80.) The trial judge "decline[d] to hear [Petitioner]'s Motion to Suppress as it has already been ruled upon by another judge." (Order, filed Mar. 18, 2004, Tr. Legal File, Resp't Ex. C, at 110.)

Petitioner also filed motions to compel seeking a court order compelling Todd Parker("confidential informant" or "informant") to attend and answer questions at a deposition.⁸(Mots. Compel, filed Nov. 24, 2003, and Mar. 15, 2004, Tr. Legal File, Resp't Ex. C, at 64-65 and 107-09.) The first motion to compel was withdrawn and the second motion to compel was overruled. (Orders, dated Dec. 18, 2003 and Mar. 18, 2004, Tr. Docket Sheet, Tr. Legal File, Resp't Ex. C, at 6 and 7; Order, dated Mar. 18, 2004, id., at 110.)

At trial, in addition to introducing numerous exhibits (see, e.g., copies of exhibits at Resp't Ex. E), the State presented the testimony of

-- David Oder, an officer with the Mineral Area Drug Task Force of the Missouri State Highway Patrol, who participated in the arrest of Petitioner and the search of Petitioner's residence on November 20, 2002 (Trial Tr., Resp't Ex. G, at 98-169);

-- Kenneth Schulte, a trooper with the Missouri State Highway Patrol who participated in the arrest of Petitioner and search of Petitioner's residence on November 20, 2002 (id. at 169-97);

-- Deborah Oliveras, a criminalist with the Missouri State Highway Patrol who tested the substances found at Petitioner's residence on November 20, 2002 (id. at 198-216); and, in rebuttal,

-- Timothy Craig, who was a deputy sheriff with the Ste. Genevieve County Sheriff's Department involved in the searches of Petitioner's residence on November 20, 2002, and on December 12, 2003 (id. at 266-77).

Petitioner testified (id. at 219-43) and presented the testimony of Patrick Prosser,Petitioner's father (id. at 244-56); Kathy Bollinger, Petitioner's sister (id. at 256-60); and Eric Bennett, who was an officer with the Mineral Area Drug Task Force who participated in the arrest of Petitioner and search of Petitioner's residence on November 20, 2002 (id. at 260-65).

The trial court overruled Petitioner's motions for judgment of acquittal at the close of the State's evidence and at the close of all the evidence (id. at 219, 277-78); and the jury found Petitioner guilty of the charged offenses (Verdicts, Tr. Legal File, Resp't Ex. C, at 131-32).

After denying Petitioner's motion for new trial, the trial court sentenced Petitioner to consecutive terms of imprisonment consisting of seven years for possession of methamphetamine and four years for unlawful possession of drug paraphernalia with intent to manufacture methamphetamine. (Trial Tr., Resp't Ex. G, at 301, 305-06; Sentence and Judgment, Tr. Legal File, Resp't Ex. C, at 141-43.)

On direct appeal, Petitioner raised three points. First, Petitioner argued his Fourth and Fourteenth Amendment rights to be free from unreasonable searches and seizures were violated because the affidavits used to obtain the search warrant for his residence included false statements by the affiants and did not establish probable cause that contraband or evidence of a crime would be found in his residence. (Pet'r Br., Resp't Ex. A, at 18, 22.) Second, Petitioner urged that his Fourth and Fourteenth Amendment rights to due process and to be free from illegal searches and seizures were violated by the trial court's failure to conduct a hearing on the second motion to suppress. (Id. at 19, 33.) Finally, in his third point, Petitioner contended that his Fifth and Fourteenth Amendment rights to due process, to a fair trial, and to be tried only for the charged offenses were violated when the trial court allowed the State to present rebuttal evidence regarding evidence of a separate alleged offense, specifically evidence regarding Petitioner's subsequent December 2003 arrest on other methamphetaminecharges. (Id. at 21, 40.)

The Missouri Court of Appeals for the Eastern District of Missouri affirmed Petitioner's conviction in a summary per curiam order, dated October 11, 2005, supported by a memorandum explaining the decision that was sent only to the parties. (Order and Mem. Supplementing Order Affirming J. Pursuant to Rule 30.25(b), Resp't Ex. H.) The state appellate court noted Petitioner did not challenge the sufficiency of the evidence and, viewing the evidence adduced at trial in the light most favorable to the verdict, found:

On November 19, 2002, after receiving information of possible methamphetamine production and in possession of several warrants for [Petitioner]'s arrest, officers with the Mineral Area Drug Task Force arrived at [Petitioner]'s residence, which consisted of a camping trailer adjacent to a basement foundation that had been covered with a roof and converted into a shed.

When the officers arrived at [Petitioner]'s property, they observed outside the residence a small glass jar containing what appeared to be "pill crush," a box of several blister packs of pseudoephedrine, cans of acetone, Coleman fuel, starting fluid and a butane torch. Also outside the residence, the officers observed propane tanks and a blue tote containing a jar of muriatic acid and what appeared to be more "pill crush." The officers noted a strong, ether-like chemical odor coming from the residence. The officers knocked on the front door of the residence. [Petitioner] answered the door and refused to consent to a search of his residence. [Petitioner] was placed under arrest for the outstanding warrants. A pat down of [Petitioner] revealed over $2,800 in cash in [Petitioner]'s pocket. As a few of the officers did a quick walk-through of the residence to secure the premises, two officers left [Petitioner]'s property to obtain a search warrant. On November 20, 2002, after obtaining the warrant, Task Force officers along with a Missouri Highway Patrol trooper, and a Ste. Genevieve County Sheriff's deputy conducted a search of [Petitioner]'s property. The search revealed numerous items that could be used in the manufacture of methamphetamine including: numerous bottles or jars containing liquids; a coffee pot containing a two-layer liquid; a coffee filter containing a powdery substance on top of a Mason jar; a jar containing a pinkish powder; a pharmacy bottle containing a bag of white powder; a glass pan containing a bag of white powder; a glass jar containing white powder; a plastic bag on the kitchen tablecontaining white powder; a bag of white powder in a jacket in the bedroom; a jar containing stripped matchbooks; two bottles of iodine crystals; an air tank with a modified valve that could be used as an

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