Reed v. Norman
| Decision Date | 11 April 2014 |
| Docket Number | Case No. 4:11CV1206 JCH |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | ONTARIO REED, Petitioner, v. JEFF NORMAN, Respondent. |
This matter is before the Court on Missouri State prisoner Ontario Reed's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is fully briefed and ready for disposition.
On May 3, 2007, a jury in the Circuit Court of New Madrid County, Missouri, found Petitioner guilty of one count of forcible rape and one count of forcible sodomy. Petitioner was sentenced as a prior offender on June 12, 2007, to consecutive terms of life imprisonment. Petitioner's convictions and sentence were affirmed on direct appeal. Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied after an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of Petitioner's post-conviction motion.
Petitioner is currently incarcerated at the Southeast Correctional Center in Charleston, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following five claims for relief:
In Ground 2 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to conduct sufficient pretrial investigation into the defenses of consent and misidentification. In Ground 3 Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to file pretrial motions to suppress, and to request that the State pay for DNA experts. In Ground 4 Petitioner asserts he received ineffective assistance of counsel, in that trial counsel effectively denied him the right to testify on his own behalf.
A review of the record reveals Petitioner did not raise the claims asserted in Grounds 2 through 4 in his amended 29.15 post-conviction motion, nor did he raise them on appeal from the denial of that motion. Because Petitioner failed to raise these claims in any state court proceeding, he is procedurally barred from pursuing them here. Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Forest v. Delo, 52 F.3d 716, 719 (8th Cir. 1995); Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.), cert. denied, 515 U.S. 1163 (1995). The Court therefore cannot reach the merits of the claims absent a showing of cause and prejudice, or a demonstration"that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.1
Petitioner attempts to establish cause for his procedural default, by asserting his post-conviction counsel abandoned the claims during the post-conviction proceeding.2 "Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Martinez v. Ryan, 132 S.Ct 1309, 1315 (2012). "For ineffective assistance of post-conviction counsel to constitute cause, petitioner must show that counsel's assistance was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), and further demonstrate that the underlying claim of ineffective assistance of trial counsel is a 'substantial' one, that is, that the claim has some merit." Moore v. Larkins, 2013 WL 4091652, at *5 (E.D. Mo. Aug. 13, 2013) (citing Martinez, 132 S.Ct. at 1318).
The Court thus turns to a consideration of whether Petitioner's underlying claims of ineffective assistance of trial counsel have merit.
As noted above, in Ground 2 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to conduct sufficient pretrial investigation into the defenses of consent and misidentification. Specifically, Petitioner suggests counsel should have (1) obtained additional information from the victim, and (2) interviewed Ms. Jeanie Boxwood, whowould have suggested that the encounter was consensual. Petitioner further posits that questions asked of Ms. Bernadette Hannaford during her deposition should have been used to impeach her testimony at trial.
Under federal law, in order to prevail on his ineffective assistance of counsel claim, Petitioner must show that his attorney's performance was "deficient," and that the deficient performance was "prejudicial." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. To overcome this presumption, Petitioner must prove that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
Even if Petitioner satisfies the performance component of the analysis, he is not entitled to relief unless he can prove sufficient prejudice. Id. at 694. To do so, Petitioner must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Upon consideration the Court finds that with this claim, Petitioner fails to establish the requisite prejudice. First, Petitioner offers absolutely no evidence that had she been more effectively cross-examined, the victim would have altered her testimony that she had never seen the person who raped her prior to the assault (see Resp. Exh. A, P. 158), and instead would have acknowledged attending a party with Petitioner on the day of the alleged crime, and voluntarily returning to her home with him. With respect to Ms. Boxwood, Petitioner offer no evidence that she would have been willing to testify at trial, or that her testimony would have corroborated his claim that hisencounter with the victim was consensual.3 Finally, Petitioner offers no evidence that a more thorough cross-examination of Ms. Hannaford, including questioning regarding her earlier description of the assailant, would have elicited information sufficient to overcome the strong physical evidence and testimony linking Petitioner to the crime. Under these circumstances, Petitioner fails to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Petitioner thus cannot establish that the underlying claim of ineffective assistance of trial counsel raised in Ground 2 is a 'substantial' one, and so the relief he seeks must be denied.
As noted above, in Ground 3 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel failed to file pretrial motions to suppress, and to request that the State pay for DNA and fingerprint experts. Petitioner asserts trial counsel should have moved to suppress the bed sheet and the State's fingerprint evidence, and should have enlisted the aid of experts to testify as to the presence of drugs and alcohol in the victim's system, and to the presence of DNA and prints belonging to someone other than Petitioner.
Upon consideration the Court finds that with this claim, Petitioner fails to establish deficient performance on the part of his counsel. Specifically, the Court notes Petitioner offers absolutely no evidence that either pretrial motions to suppress or motions to have the State pay for experts would have been successful, had they been filed.4 Counsel cannot be found constitutionally deficient for failing to file nonmeritorious motions, and so the underlying claim of ineffective assistance of trial counsel raised in Ground 3 is without merit and must be denied.
As stated above, in Ground 4 of his petition Petitioner asserts he received ineffective assistance of counsel, in that trial counsel effectively denied him the right to testify on his own behalf. Petitioner claims that had he testified, he would have afforded the jury the firsthand opportunity to observe his demeanor and judge his veracity.
Upon consideration the Court finds that with this claim Petitioner fails to demonstrate the requisite prejudice, for two reasons. First, the Court notes that Petitioner made the decision not to testify of his own accord. During his trial, out of the hearing of the jury, the following colloquy took place between the trial judge and Petitioner:
To continue reading
Request your trial