Stephen v. Smith

• Decision Date: 26 June 2020
• Docket Number: No. 19-1259,19-1259
• Citation: 963 F.3d 795
• Parties: Joseph Michael STEPHEN, Petitioner - Appellant v. Cornell SMITH, Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

963 F.3d 795

Joseph Michael STEPHEN, Petitioner - Appellant

v.Cornell SMITH, Respondent - Appellee

No. 19-1259

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2020

Filed: June 26, 2020

Counsel who presented argument on behalf of the appellant and appeared on the brief was Andrew J Dunn, of Des Moines, IA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Aaron James Rogers, AAG, of Des Moines, IA.

Before KELLY, MELLOY, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

Joseph Michael Stephen filed a petition for habeas corpus under 28 U.S.C. § 2254 challenging his three Iowa methamphetamine-related convictions.He argues that the evidence for two of his convictions was insufficient under the Fourteenth Amendment's Due Process Clause, his trial counsel were ineffective, the State violated Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963), and his sentence violated the Fifth and Eighth Amendments.The district court¹ denied his petition.We affirm.

I.

In April 2009, Des Moines Police Officer Paul Parizek stopped a pickup truck with a burned-out license plate light.He could see through the back window that the passenger, Stephen, was shifting around.Officer Parizek exited his car and approached the passenger side of the truck, when he saw Stephen turn toward his seatbelt buckle "[l]ike, he was stuffing something into the seats."D.Ct. Dkt. 13-1at 135.Officer Parizek knocked on the window, took Stephen's and the driver's identification, and asked the driver to exit the truck so he could show him the license plate light.He then asked to search the truck and the driver consented.

Officer Parizek asked Stephen to step out of the truck and if he could pat him down.Stephen agreed and turned over a pocketknife.During the pat down, Officer Parizek felt what seemed to be a plastic baggie in Stephen's pocket.He reached into his pocket and found a baggie containing a small amount of methamphetamine.Officer Parizek placed Stephen under arrest and, at this point, or shortly after, Stephen stated he"knew he was going to go to prison."Id. at 163.

Officer Parizek then searched the truck.In between the seats where Stephen's attention had been focused during the stop he found two Ziploc bags—one containing a significant amount of crushed pseudoephedrine and the other stripped lithium batteries.On the passenger side floorboard, he discovered a plastic bag containing a fume mask.On the bench seat, he found a pair of channel lock pliers.And in the bed of the truck, he found plastic pitchers, coffee filters, and a modified propane tank.

The State charged Stephen with conspiracy to manufacture methamphetamine (Count I), possession of lithium with intent to use it in the manufacture of methamphetamine (Count II), possession of anhydrous ammonia with intent to use it in the manufacture of methamphetamine (Count III), and possession of methamphetamine (Count IV).Stephen's trial was initially set for July 2009 but the State dropped the charges because the federal government was prosecuting Stephen, and the case was dismissed without prejudice.The State later re-filed the charges and Stephen's trial was set for October 2009.A few weeks before trial, his attorney, Rachel Seymour, withdrew from the case and the court appointed Kent Balduchi.

At trial, the jury convicted Stephen on everything but Count III (the anhydrous ammonia offense), and the court sentenced him to 60 years in prison.In calculating the sentence, the court applied both Iowa's habitual offender enhancement, Iowa Code § 902.9(1)(c), and the second or subsequent offense enhancement, Iowa Code § 124.411.The Iowa Court of Appeals affirmed Stephen's convictions on direct review, State v. Stephen(Stephen I ), 2011 WL 5393453(Iowa Ct. App.Nov. 9, 2011), and the Iowa Supreme Court denied further relief.Stephen then sought state post-conviction relief, which was denied by the trial court and the Iowa Court of Appeals.State v. Stephen(Stephen II ), 2016 WL 3556367(Iowa Ct. App.June 29, 2016)(unpublished).

Stephen then filed a petition for habeas corpus under 28 U.S.C. § 2254, and later filed a supplemental amended petition.The district court denied Stephen's petition, Stephen v. Smith(Stephen III ), 2019 WL 8219405(S.D. IowaJan. 25, 2019), but issued a certificate of appealability for each of his claims.

II.

The Anti-Terrorism and Effective Death Penalty Act provides two avenues for habeas relief for claims a state court decided on the merits.A petitioner can show the decision: (1)"was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2)"was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."28 U.S.C. § 2254(d)(1) & (2)."Claims that have not been presented to the state courts, and for which there are no remaining state remedies, are procedurally defaulted," and we cannot consider them unless the petitioner can show "cause and prejudice or that he is actually innocent of the charges."Skillicorn v. Luebbers , 475 F.3d 965, 976–77(8th Cir.2007)(citations omitted)."When reviewing a district court's denial of a § 2254 petition, we review the district court's findings of fact for clear error and its conclusions of law de novo."Kennell v. Dormire , 873 F.3d 637, 639(8th Cir.2017).

A.

Stephen first argues that his conviction for conspiracy to manufacture methamphetamine violated the Fourteenth Amendment's Due Process Clause because the State failed to prove two elements of his offense beyond a reasonable doubt.He contends the State showed only that he was merely present in the truck—not that: (1)he"agreed with [the driver] that one or both of them would manufacture or attempt to manufacture methamphetamine," or (2)he"entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine."Stephen I , 2011 WL 5393453, *6(listing the elements of the offense).He claims he is entitled to habeas relief because "no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Jackson , 443 U.S. at 324, 99 S.Ct. 2781.

But Stephen's burden is even higher than that.Under AEDPA, he must show the Iowa court's application of "the Jackson sufficiency of the evidence standard [was]‘both incorrect and unreasonable.’ "Garrison v. Burt , 637 F.3d 849, 855(8th Cir.2011)(emphasis in original)(citation omitted).A state court's decision is reasonable " ‘so long as fairminded jurists could disagree’ on the correctness of the ... decision."Harrington v. Richter , 562 U.S. 86, 100, 131 S.Ct. 770, 178 L.Ed.2d 624(2011)(citation omitted).

Stephen has not met this burden.A juror could find that Stephen's unusual movements during the traffic stop, stuffing methamphetamine ingredients in between the seats, and his admission that he was "going to jail" showed that the batteries and pseudoephedrine were his.The other items commonly used in the production of methamphetamine in plain view and in the back of the truck suggest that the driver also had knowledge of and control over parts of a rolling meth lab.We therefore agree with the district court that a reasonable juror might infer an agreement between Stephen and the driver from this evidence—or at least "fairminded jurists could disagree" about it.Harrington , 562 U.S. at 100, 131 S.Ct. 770.

Stephen's challenges to the state court's factual findings also fail.He argues that Officer Parizek's testimony about him stuffing items between the seats is implausible because no officer would leave a suspect alone next to incriminating evidence.He also contends that it was unreasonable to conclude that the pseudoephedrine and batteries belonged to him because they were within the driver's reach.But Stephen cannot carry his burden by pointing to "some contrary evidence in the record."Cole v. Roper , 783 F.3d 707, 711(8th Cir.2015).AEDPA requires we give "the state trial court substantial deference" in this area.Brumfield v. Cain , 576 U.S. 305, 314, 135 S.Ct. 2269, 192 L.Ed.2d 356(2015)(citing28 U.S.C. § 2254(d)(2) ).We presume the court's factual findings are correct unless Stephen "rebut[s] the presumption ... by clear and convincing evidence."28 U.S.C. § 2254(e)(1);see alsoStenhouse v. Hobbs , 631 F.3d 888, 891(8th Cir.2011).He has not done so.His arguments do not clearly show that Officer's Parizek's testimony was false or that the pseudoephedrine and batteries belonged to the driver.

B.

Stephen next argues that his conviction for possession of lithium with intent to manufacture methamphetamine violated the Fourteenth Amendment because the State failed to prove that offense beyond a reasonable doubt.We need not reach this claim because it is procedurally defaulted.

"We review de novo the question whether [a] claim is procedurally defaulted."Kemp v. Kelley , 924 F.3d 489, 499(8th Cir.2019)."[We] will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule."Martinez v. Ryan , 566 U.S. 1, 9, 132 S.Ct. 1309, 182 L.Ed.2d 272(2012).On direct review, the Iowa Court of Appeals refused to consider whether the evidence for the lithium possession conviction was sufficient because Stephen had not raised this argument in his motion for judgment of acquittal.Stephen I , 2011 WL 5393453, at *8, *8 n.3.We may not reach this claim either unless Stephen "shows cause and prejudice or that he is actually innocent of the charges."Skillicorn , 475 F.3d at 976.Stephen "makes no attempt to meet [these] standards," so this claim was properly dismissed.Morgan v. Javois , 744 F.3d 535, 539(8th Cir.2013).

C.

Stephen next claims that his counsel was ineffective under Strickland v. Washington , 466 U.S. 668, 104...