Roggenbuck v. Pash

• Decision Date: 21 July 2016
• Docket Number: Case No. 16-0264-CV-W-HFS-P
• Parties: ROBIN S. ROGGENBUCK, Petitioner, v. RONDA PASH, Respondent.
• Court: U.S. District Court — Western District of Missouri

ROBIN S. ROGGENBUCK, Petitioner, v. RONDA PASH, Respondent.

Case No. 16-0264-CV-W-HFS-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

July 21, 2016

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, a convicted state prisoner currently confined at Crossroads Correctional Center in Cameron, Missouri, has filed pro se this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 convictions and 2010 sentences for five counts of possession of child pornography, which were entered in the Circuit Court of Platte County, Missouri. Petitioner's convictions and sentences were affirmed on direct appeal by both the Missouri Court of Appeals, Western District (State v. Roggenbuck, No. WD 72045, 2011 WL 5525340 (Mo. Ct. App. Nov. 15, 2011)), and the Missouri Supreme Court (Doc. 12-6; State v. Roggenbuck, 387 S.W.3d 376 (Mo. banc 2012)). Petitioner's motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was denied following an evidentiary hearing (Doc. 12-7, pp. 96-107) and that denial was affirmed on appeal therefrom (Doc. 12-11).

Statement of Facts

In affirming the denial of post-conviction relief, the Missouri Court of Appeals, Western District, set forth the following facts:

[Petitioner] was charged with five counts of possession of child pornography. A different picture found on [Petitioner's] computer formed the basis for each count. At trial, the State attempted to admit into evidence uncharged still images found on [Petitioner's] computer. However, [Petitioner's] trial counsel successfully objected to the admission of uncharged still images into evidence. As a result, the only incidents addressed with the jury were the five charged incidents based on the five still images admitted into evidence. [Petitioner] defended the charges against him by claiming he had no knowledge that the child pornography was on his computer. [Petitioner] did not contend that the five still images admitted into evidence were not child pornography.

Each count was submitted to the jury pursuant to a separate verdict director, Instructions 6 through 10. Each verdict director identified the specific count as to which it was being submitted, but did not identify by exhibit number the still image associated with the count. Instead, each verdict director generally identified an alleged pornographic act reflected in a still image found on [Petitioner's] computer. Trial counsel did not object to the verdict directors.

[Petitioner] was convicted on all five counts of possession of child pornography. His conviction was affirmed on direct appeal. State v. Roggenbuck, 387 S.W.3d 376 (Mo. banc 2012). Instructional error was not raised as an issue on appeal. Id.

Doc. 12-11, p. 3 (alterations added).

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), cert. denied, 469 U.S. 842 (1984). It is Petitioner's burden to establish by clear 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.

Discussion

Petitioner raises six grounds for relief:² (1) the affidavit in support of the search warrant was insufficient to establish probable cause to search Petitioner's home and computer; (2) Petitioner should not have been sentenced as a prior and persistent sex offender; (3) trial counsel or the prosecution should have made available to the jury "federal 302 reports" from a grand jury investigation; (4)(5) Petitioner was denied a fair trial because trial counsel did not present a defense computer expert; and (6) trial counsel was ineffective for various reasons.³ Doc. 1, pp. 5-16. Respondent argues that Ground 1 is not cognizable and, alternatively, is without merit; that Ground 2 is procedurally defaulted and, alternatively, is an issue of state law not cognizable in federal habeas; and that Grounds 3-6⁴ are procedurally defaulted. Doc. 12, pp. 3-5.

I. Ground 1 is not cognizable and, alternatively, is without merit.

In Ground 1, Petitioner argues that "lies" included in the affidavit in support of the search warrant "created an extreme frenzy and prejudice against [Petitioner] from the start, resulting with a highly questionnable [sic] search [and] seizure." Doc. 1, p. 5. Respondent contends that Ground 1 is not cognizable in federal habeas pursuant to Stone v. Powell, 428 U.S. 465, 494 (1976), which held that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Doc. 12, p. 3.

The Missouri Supreme Court summarized Petitioner's state-court challenge to the affidavit in support of the warrant as follows:

Based on this affidavit,⁵ the circuit court found probable cause to warrant a search of Defendant's residence and computer and the seizure of any "[p]roperty, article, material or substance that constitutes evidence of the commission of a crime" and "[p]roperty for which possession is an offense under the laws of this state."

The Fourth Amendment to the United States Constitution guarantees that no warrant shall issue except upon probable cause supported by oath or affirmation. State v. Neher, 213 S.W.3d 44, 48-49 (Mo. banc 2007). "In determining whether probable cause exists the issuing magistrate or judge must 'make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him [or her] . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Id. at 49, quoting Illinois v. Gates, 462 U.S. 213, 238, (1983). "Accordingly, in reviewing a trial court's ruling on a motion to suppress evidence seized pursuant to a search warrant, the court gives great deference to the initial judicial determination of probable cause that was made at the time the warrant issued." Id., citing State v. Berry, 801 S.W.2d 64, 66 (Mo. banc 1990). An appellate court only will reverse if the issuing magistrate or judge clearly erred in initially determining, based on the totality of the circumstances, that probable cause existed. Id., citing State v. Norman, 133 S.W.3d 151, at 159 (Mo. App. 2004).

The circuit court did not err in overruling Roggenbuck's motion to suppress. First, the probable cause affidavit alleges criminal activity because the informant alleged that Roggenbuck committed specific acts of sexual abuse against the informant and that there were also "other victims" of sexual abuse perpetrated by Roggenbuck. Sexual abuse is a crime. See section 566.100, RSMo Supp. 2007. Second, the affidavit states that the informant advised police that Roggenbuck kept alcohol under his sink to give to "boys" to "have his way with them." The clear implication of these allegations is that Roggenbuck violated section 311.310 by supplying alcohol to minors to commit unspecified sex crimes against those minors. Finally, these assertions were corroborated, in part by a psychologist's first-hand observation of an electric "massager" and large quantities of alcohol in Roggenbuck's home. The totality of the circumstances detailed in the probable cause affidavit is plainly sufficient to establish that "there is a fair probability that contraband or evidence of a crime will be found in a particular place," namely, Roggenbuck's residence.

Roggenbuck, 387 S.W.3d at 379-80; Doc. 12-6, pp. 3-5 (footnote added).

In sum, the state court record indicates that Petitioner was given a full and fair opportunity to litigate his Fourth Amendment objections before the state courts. As a result, this Court is precludedfrom considering Ground 1, and the mere fact that the state courts may have erred on the issue (which does not appear to be the case) does not entitle Petitioner to habeas relief. See e.g., Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009) (concluding that Stone precluded consideration of habeas claim that an affidavit in support of a search warrant was obtained with false statements and intentional material omissions in violation of the Fourth Amendment, because the habeas petitioner was afforded a full and fair opportunity to litigate the claim before the state courts); Moreno v. Dretke, 450 F.3d 158, 167 (5th Cir. 2006) (same). Petitioner's only avenue for federal review to determine whether or not his Fourth Amendment claim had been correctly decided would have been a petition for certiorari to the United States Supreme Court after seeking review from Missouri's highest court on direct appeal, which Petitioner did not bring. See Poitra v. North Dakota, 79 F. Supp. 3d 1021, 1044 (D.N.D. 2015). Therefore, Ground 1 is barred by the doctrine set forth in Stone.

Moreover, even if Stone did not bar Ground 1, Petitioner fails to establish that Missouri Supreme Court's determinations as to Ground 1 resulted 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" 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 28 U.S.C. §2254(d)(1) and (2). Accordingly, Ground 1 is denied.

II. Grounds 2-6 are procedurally defaulted.

In Ground 2, Petit...