Short v. Bowersox

• Decision Date: 19 July 2012
• Docket Number: Case No. 4:11CV1164MLM
• Citation: Short v. Bowersox, Case No. 4:11CV1164MLM (E.D. Mo. Jul 19, 2012)
• Parties: KYLE M. SHORT, Petitioner, v. MICHAEL BOWERSOX, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

KYLE M. SHORT, Petitioner,

v.MICHAEL BOWERSOX, Respondent.

Case No. 4:11CV1164MLM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: July 19, 2012

MEMORANDUM OPINION

This matter is before the court on the Petition for Writ of Habeas Corpus filed by PetitionerKyle M. Short("Petitioner") pursuant to 28 U.S.C. § 2254. Doc. 1.Respondent filed a Response to Order to Show Cause Why a Writ of Habeas Corpus Should Not Be Granted.Doc. 12.Petitioner filed a Reply to Respondent's Response.Doc. 17.The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).Doc. 11.

I.

PROCEDURAL HISTORY

Petitioner was charged, by Second Amended Information, with three counts of second-degree statutory rape, pursuant to Mo. Rev. Stat. § 566.034, in that between September 1, 2006, and December 16, 2006, in Warren County, Missouri, Petitioner, either alone or with another or others, had sexual intercourse with L.K. and at the time L.K. was less than seventeen years of age and Petitioner was twenty-one years of age or older.Petitioner was also charged with one count of victim tampering, pursuant to Mo. Rev. Stat. § 575.270, in that on or between December 16, 2006, in Warren County, Petitioner, either alone or with another or others, told another person to contact the victim, L.K. and such conduct was a substantial step toward the commission of the crime of victim tampering and was done for the purpose of committing victim tampering.Petitioner was charged asa persistent offender in that he previously pled guilty to two felonies committed at different times, which felonies were the felony of statutory rape in the second degree.Resp. Ex. Bat 12-13.

Petitioner was tried before a jury on November 8, 2007.Resp.Ex.A, Trial Transcript ("Tr.").The Missouri appellate court held that, viewed in the light most favorable to the verdicts, the evidence at Petitioner's trial was as follows:¹

Defendant became involved with L.K., the victim, in the summer of 2006 through L.K.'s brother.At that time, Defendant was twenty-two years old and L.K. was fifteen years old.In the fall of 2006, Defendant and L.K. began a relationship and on at least three occasion he came to her parents' house and had sexual intercourse with her.In late 2006, L.K. decided to end the relationship, but Defendant continued to call her and come by her home.Defendant continued this behavior until December 14, 2006, when he was arrested for causing a disturbance outside of L.K.'s home.

The following day, Defendant was questioned by police.During the questioning, Defendant told the police that he knew L.K. was only fifteen years old an they were just friends.When interrogated later that day, Defendant again stated that he and L.K. were friends and he thought that she was a beautiful girl.Under further questioning, he eventually admitted that he had hugged L.K. once, but that was all.Defendant then explained that he had kissed L.K. once on the lips, but thatwas the only contract they had.Detective Scott Schoenfeld told Defendant that he was going to talk to L.K. about the entire incident the first thing the following day, December 16, 2006.

During the night of December 15, 2006, Defendant made several collect calls from jail.When collect calls are made from the Warren County jail, a recorded warning is given that the all calls will be recorded.Two of the calls were to his grandmother, Joyce Crow.Defendant asked his grandmother multiple times to tell his brother, Calvin, to call L.K., and tell her to say that they had done nothing more than kiss once.When his grandmother asked "[w]hat little friend[,]"Defendant told her that he"ain't saying any names on this damn phone, and he[Calvin] knows who I'm talking about."He stressed that Calvin had to do it before December 16, 2006, because "[t]hey're waiting to talk to her."While on the phone with Defendant, Ms. Crow contacted Calvin on another phone, and relayed information to him.Calvin stated that he had tried to call twice, but that no one would answer the phone, and that he would try in the morning.Defendant stressed that Calvin needed to contact L.K. that night because the police would be talking with her the next morning.Calvin agreed to keep trying and eventually managed to speak to L.K.'s older sister, J.K. about her sister, L.K., and Defendant.That same night, Defendant called his grandmother again, who told him that Calvin had reached L.K.'s house, but that they would not let him talk to her.She told Defendant that Calvin would try again in the morning; Defendant told her that would be too late, and to have Calvin get somebody else to call L.K..Defendant did not refer to L.K. by name during these calls.

Defendant was released from jail on December 16, 2006.Detective Schoenfeld did not contact L.K. or her family until December 18, 2006, after having listened to the recordings of Defendant's collect phone calls from the night of December 15.He met with L.K., J.K, and their mother that day.L.K. discussed her relationship with Defendant, and stated that they had engaged in sexual intercourse at least three times.Detective Schoenfeld had L.K. call Defendant to discuss the details of their relationship.During the call, Defendant told L.K. to lie about their relationship, and to tell the police that they had done nothing more than kiss, otherwise he could go to prison for a long time.Detective Schoenfeld's attempt to record that conversation, which he could hear, was only partially successful, capturing only the voices of L.K. and J.K., but not that of Defendant.L.K.'s subsequent phone conversation with Defendant was successfully recorded.In that conversation, Defendant again told L.K. to tell the police that they did nothing more than kiss, told her to lie about their relationship, and pressured her by asking if she wanted him to go to prison, by telling her that she would do it if she loved him, by threatening to kill himself, and by promising to leave her alone.Defendant was arrested thereafter.

Resp. Ex. Hat 2-4.

Petitioner was found guilty as charged.Tr. 187-88.The trial court found that Petitioner was a persistent offender and sentenced him to ten years imprisonment for each of the statutory rapeconvictions, with these sentences to run concurrent with one another, and ten years imprisonment for the attempted tampering conviction, with that sentence to run consecutive to the other sentences.Resp. Ex. Bat 46-47.Petitioner filed a direct appeal with the Missouri appellate court.Resp.Ex. F.By decision, dated January 20, 2009, the Missouri appellate court affirmed Petitioner's convictions and sentences.Resp.Ex. H.

On April 15, 2009, Petitioner filed a pro se post-conviction relief motion pursuant to Rule 29.15. Resp. Ex. Kat 6-38.Counsel was appointed on May 12, 2009, and filed an amended motion.Resp. Ex. at Kat 39-103.The motion court denied Petitioner's post-conviction relief motion.Resp. Ex. at Kat 106-23.Petitioner filed an appeal with the Missouri appellate court of the motion court's decision.Resp.Ex. L.By decision, dated March 22, 2011, the Missouri appellate court denied Petitioner relief.Resp.Ex. N. On April 14, 2011, the mandate issued on the appeal of Petitioner's post-conviction relief motion.Resp.Ex. O.

Petitioner filed his § 2254 Petition in which he raises the following issues:

(1)The State failed to produce sufficient evidence to support the charge of attempted victim tampering, and

(2)Petitioner received ineffective assistance of counsel because counsel failed to call his grandmother, Joyce Crow, as a witness.²

Doc. 1.

III.

EXHAUSTION, PROCEDURAL DEFAULT AND TIMELINESS ANALYSIS

To preserve issues for federal habeas review, a state prisoner must fairly present his or her claims to state courts during direct appeal or in post-conviction proceedings.Sweet v. Delo, 125 F.3d 1144, 1149(8th Cir.1997).Failure to raise a claim in a post-conviction appeal is an abandonment of a claim.Id. at 1150(citingReese v. Delo, 94 F.3d 1177, 1181(8th Cir.1996)).A state prisoner who fails "'to follow applicable state procedural rules [for] raising the claims'(citation omitted) . . . , is procedurally barred from raising them in a federal habeas action, regardless of whether he has exhausted his state-court remedies."Id. at 1151(citingColeman v. Thompson, 501 U.S. 722, 731-32(1991))."[A] prisoner must 'fairly present' not only the facts, but also the substance of his federal habeas corpus claim."Abdullah v. Groose, 75 F.3d 408, 411(8th Cir.1996)(en banc)(citation omitted)."[F]airly present" means that state prisoners are "required to 'refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.'"Id. at 411-12.A state-law claim which is raised in state court which "is merely similar to the federal habeas claim is insufficient to satisfy the fairly presented requirement."Id. at 412.

The United States Supreme Court holds that a state prisoner can overcome procedural default if he or she can demonstrate cause and prejudice for the procedural default.Dretke v. Haley, 541 U.S. 386, 388-89(2004).See alsoColeman, 501 U.S. at 750 (holding that a state habeas petitioner can overcome procedural default by demonstrating cause for the default and actual prejudice or demonstrate that default will result in a fundamental miscarriage-of-justice;Battle v. Delo, 19 F.3d 1547, 1552(8th Cir.1994).The United States Supreme Court has recently held that because the "cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice"the Court has "recognized a narrow exception to the cause requirement where a constitutional violation has 'probably resulted' in the conviction of one who is 'actually innocent' of the...