Robinson v. Cassady
Decision Date | 01 December 2015 |
Docket Number | Case No. 15-3239-CV-S-BP-P |
Court | U.S. District Court — Western District of Missouri |
Parties | FLOYD ROBINSON, Petitioner, v. JAY CASSADY, Respondent. |
Petitioner, Floyd Robinson, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on June 2, 2015, seeking to challenge his 2010 conviction and sentence for robbery in the first degree, which was entered in the Circuit Court of Greene County, Missouri.
Petitioner asserts two (2) grounds for relief: (1) that the identification procedures used to identify petitioner were "tainted" and "suggestive" and (2) that trial counsel was ineffective for failing to object during the prosecution's closing argument. Respondent contends that both grounds are without merit.
On appeal from the denial of petitioner's Rule 29.15 post-conviction relief motion, the Missouri Court of Appeals summarized the facts as follows:
Respondent's Exhibit I, pp. 2-3 (internal footnotes omitted).
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 byclear 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.
In Ground 1, petitioner contends that the identification procedures used to identify petitioner were "tainted" and "suggestive." Specifically, petitioner contends that his photograph was "materially different" than the other photographs in the photographic array.
Federal law, as determined by the United States Supreme Court, requires a two-step inquiry into the use of photographic arrays. Schawitsch v. Burt, 491 F.3d 798, 802 (8th Cir. 2007) (citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). Id.
On direct appeal, the Missouri Court of Appeals disposed of petitioner's claim as follows:
, 193 S.W.3d at 376 (citing cases). "Some intimation, implication or suggestion that officers suspect a subject presented to witnesses inevitably inheres in every show-up, else why [sic] conduct a show-up?" State v. Johnson, 628 S.W.2d 904, 907-08 (Mo.App. 1982), quoted in Eoff, 193 S.W.3d at 376.
Defendant cites a New Jersey case for the proposition that "failure to have a blind administrator conduct the identification procedures was presumptive evidence of suggestiveness." Suffice it to say that this case neither binds nor persuades us.
Identification testimony will be excluded only if the procedure was so suggestive that there is a very substantial likelihood of irreparable misidentification. Floyd, supra, slip op. at 16; Eoff, 193 S.W.3d at 375. We have closely reviewed the trial and suppression hearing records and find no credible evidence of impropriety or impermissible suggestiveness. The trial court did not abuse its discretion in refusing to suppress the lineup or admitting the lineup at trial.
Respondent's Exhibit E, pp. 2-3 (internal footnotes omitted).
Here, the Missouri Court of Appeals held that the lineup procedures were not impermissibly suggestive. Further, this Court has reviewed the photo lineup and come to the same conclusion - the array was not impermissibly suggestive. Because the appellate court's ruling did not result in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"2 or in"a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," see U.S.C. § 2254(d)(1) and (2), Ground 1 will be denied.
In Ground 2, petitioner contends that trial counsel was ineffective for failing to object during the prosecution's closing argument. Specifically, petitioner contends that trial counsel should have objected when the prosecutor argued that, after analyzing the evidence with a magnifying glass, she was certain that the petitioner's shoe left the imprint near the bush where the toy gun was found.
In order for petitioner to successfully assert a claim for ineffective assistance of counsel, petitioner must demonstrate that his attorney's performance "fell below an objective standard of reasonableness" and that "the deficient performance" actually prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). This Court may not grant habeas relief unless the state appellate court's decision "was contrary to, or an unreasonable application of, the standard articulated by the [United States] Supreme Court in Strickland." Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999), cert. denied, 530 U.S. 1265 (2000).
Id. at 689. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professionalassistance." Id.
On appeal from the denial of his Rule 29.15 post-conviction relief motion, the Missouri Court of Appeals disposed of petitioner's claim as follows:
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