Sharks v. Norman

• Decision Date: 14 May 2012
• Docket Number: Case No. 4:11CV1471 JCH
• Parties: MICHAEL SHARKS, Petitioner, v. JEFF NORMAN, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

MICHAEL SHARKS, Petitioner,

v.JEFF NORMAN, Respondent.

Case No. 4:11CV1471 JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: May 14, 2012

MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner Michael Sharks' pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is fully briefed and ready for disposition.

On April 16, 2008, a jury in the Circuit Court of the City of St. Louis, Missouri, found Petitioner guilty of one count of first-degree robbery and one count of armed criminal action. Petitioner was sentenced to fifteen years imprisonment on the first-degree robbery count and fifteen years imprisonment on the armed criminal action count, to be served concurrently. The Missouri Court of Appeals affirmed the convictions and sentence. State v. Sharks, 306 S.W.3d 100 (Mo. App. 2009). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Sharks v. State, 339 S.W.3d 627 (Mo. App. 2011).

Petitioner is currently incarcerated at the Jefferson City Correctional Center in Jefferson City, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following eight claims for relief:

(1) That the trial court erred in admitting evidence of the victim's out-of-court identifications of Petitioner;(2) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to impeach the victim's identification of Petitioner;

(3) That Petitioner received ineffective assistance of counsel, in that trial counsel failed adequately to cross-examine Petitioner's co-defendant regarding whether he would receive favorable sentencing consideration in exchange for his testimony against Petitioner;

(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to point out a timing inconsistency when records indicated a detective simultaneously was with the co-defendant as the co-defendant wrote his statement, and also with the victim showing him Petitioner's picture;

(5) That the Missouri Court of Appeals erred in rejecting Petitioner's claim that trial counsel was ineffective for failing to impeach the victim's identification of Petitioner;

(6) That the Missouri Court of Appeals erred in rejecting Petitioner's claim that trial counsel was ineffective for consenting to a continuance, and for failing adequately to cross-examine Petitioner's co-defendant regarding whether he would receive favorable sentencing consideration in exchange for his testimony against Petitioner;

(7) That the Missouri Court of Appeals erred in rejecting Petitioner's claim that trial counsel was ineffective for failing to point out the timing inconsistency described in point 4 above; and

(8) That the post-conviction relief court erred in failing to issue findings of fact and conclusions of law on all claims raised in Petitioner's pro se post- conviction relief motion, and post-conviction relief counsel was ineffective for failing to incorporate Petitioner's pro se claims into the amended motion.

(§ 2254 Petition, PP. 6-33). The Court will address the claims in turn.

DISCUSSION

I. Non-Cognizable Claim

Federal habeas relief is available to a state prisoner only on the ground that he is in custody in violation of a constitutional or federal statutory right. 28 U.S.C. § 2254(a); Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir.), cert. denied, 495 U.S. 936 (1990). Claims that do not reachconstitutional magnitude cannot be addressed in a petition for habeas corpus. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991).

In Ground 8 of his petition, Petitioner first claims the post-conviction relief court erred in failing to issue findings of fact and conclusions of law on all claims raised in Petitioner's pro se post- conviction relief motion. "Section 2254 only authorizes federal courts to review the constitutionality of a state criminal conviction, not infirmities in a state post-conviction relief proceeding." Williams-Bey, 894 F.2d at 317. See also Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)) ("the Constitution does not guarantee the existence of state post-conviction proceedings"), cert. denied, 553 U.S. 1035 (2008). Petitioner's claim that the post-conviction relief court erred in failing to issue findings of fact and conclusions of law on all claims raised in Petitioner's pro se post-conviction relief motion is collateral to his conviction and detention, and therefore is not cognizable in a federal habeas petition. Williams-Bey, 894 F.2d at 317.

Petitioner next claims post-conviction relief counsel was ineffective for failing to incorporate Petitioner's pro se claims into the amended 29.15 motion. There is no constitutional right to effective assistance of post-conviction counsel. Jolly v. Gammon, 28 F.3d 51, 54 (8th Cir.) (citing Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir. 1992)), cert. denied, 513 U.S. 983 (1994). Because ineffective assistance of post-conviction counsel does not raise an issue of constitutional magnitude, this portion of Ground 8 of the instant petition is not cognizable in this proceeding and must be denied.

II. Grounds Addressed On The Merits

A. Ground 1

In Ground 1 of his petition, Petitioner asserts the trial court erred in admitting evidence of the victim's out-of-court identifications of Petitioner. Petitioner raised this claim on direct appeal, and the Missouri Court of Appeals denied the claim as follows:

For his sole point on appeal, defendant¹ argues that the trial court erred in admitting evidence of the victim's out-of-court identifications. Defendant contends that the police procedures for the lineups were unduly suggestive and that this suggestiveness made the identifications unreliable. Defendant challenges the admission of State's Exhibit 2, the photo-lineup that the victim viewed the day of the robbery, and State's Exhibit 7, a photograph of the live-lineup.

State's Exhibit 2

In order to properly preserve a challenge to identification testimony, a defendant must file a pretrial motion to suppress, object timely at trial, and include the issue in his motion for new trial. State v. Wendleton, 936 S.W.2d 120, 123 (Mo.App. 1996). Defendant concedes that he failed to timely object to the introduction of State's Exhibit 2 at trial. Because defendant failed to object at trial to the admission of State's Exhibit 2, the issue is not preserved for appeal, and our review is limited to determining whether the trial court committed reversible plain error. Rule 30.20.

We will not review a claim of plain error under Rule 30.20 unless there are substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. State v. Chaney, 967 S.W.2d 47, 59 (Mo. banc 1998), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). There are no extraordinary circumstances in this case to justify reviewing this argument as a matter of plain error. State v. Mosley, 980 S.W.2d 1, 3 (Mo.App. 1998). See State v. Chambers, 234 S.W.3d 501, 512 (Mo.App. 2007); State v. Glover, 951 S.W.2d 359, 363 (Mo.App. 1997).

State's Exhibit 7

We limit our review of a trial court's ruling on a motion to suppress to a determination if sufficient evidence existed to sustain the trial court's findings. Chambers, 234 S.W.3d at 512. We review the facts and all reasonable inferences in the light most favorable to the ruling and disregard all contrary evidence and inferences. Id. "We will not disturb the trial court's decision to admit or exclude evidence unless there has been an abuse of discretion." Id.

Identification testimony is admissible unless the pretrial identification procedure is impermissibly suggestive and this suggestive procedure made the identification unreliable. State v. Middleton, 995 S.W.2d 443, 453 (Mo. banc 1999). "A pre-trial identification procedure is unduly suggestive if the identification results not from the witness's recollection of first-hand observations, but rather from the procedures or actions employed by the police." Chambers, 234 S.W.3d at 513.

In determining the reliability of a witness's identification, we consider: (1) the opportunity of the witness to view the subject; (2) the witness's degree of attention; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness in making the identification; and (5) the interval between the event and the identification procedure. Middleton, 995 S.W.2d at 453; Chambers, 234 S.W.3d at 513. However, the defendant must establish that the policy procedures were impermissibly suggestive before review of the reliability of the identification is necessary or appropriate. State v. Allen, 274 S.W.3d 514, 526 (Mo.App. 2008); Chambers, 234 S.W.3d at 513.

Defendant contends that the police procedures used for the photo and live-lineup were unduly suggestive because the victim never completely saw the robber's face. Defendant emphasizes that the victim did not see the robber's face because he wore a hat, hood, and scarf that covered his face from the middle of his forehead to the top of his upper lip. Defendant further asserts that the victim could only identify him after he "used his fingers to cover above the forehead and below the bottom lip on each photo in State's Exhibit 2."

"[A] lineup is made unduly suggestive when the suggestiveness results from police procedures." State v. Glover, 951 S.W.2d 359, 363 (Mo.App. 1997). A lineup is not unduly suggestive when the alleged "taint" in the identification procedures originates from a nongovernmental source. Id.

In the present case, the victim asked if he could cover part of the faces of the persons in the photos. By covering part of the face, the victim enhanced the reliability

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