Sutherland v. Koster

• Decision Date: 15 July 2011
• Docket Number: Case No. 4:10CV1611MLM
• Parties: CARL S. SUTHERLAND, Petitioner, v. CHRIS KOSTER, 1Respondent.
• Court: U.S. District Court — Eastern District of Missouri

CARL S. SUTHERLAND, Petitioner,

v.CHRIS KOSTER, ¹Respondent.

Case No. 4:10CV1611MLM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: July 15, 2011

MEMORANDUM OPINION

This matter is before the court on the Petition for Writ of Habeas Corpus filed by Petitioner Carl S. Sutherland ("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. 8. Petitioner filed a Reply to Respondent's Response. Doc. 12. Also before the court are two Motions filed by Petitioner. Docs. 10, 14. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Doc. 9.

I.BACKGROUND

In Count I, of an Information in Lieu of Indictment, Petitioner was charged with robbery in the first degree, in violation of Mo. Rev. Stat. § 569.020, in that, on Sunday, September 22, 2202, at about 6:15 a.m., Petitioner and two others, acting together, forcibly stole U.S. currency in the possession of Surendra Chowdary, and, in the course thereof, Petitioner displayed and threatened use of what appeared to be a deadly weapon. In Count II, Petitioner was charged with armed criminalaction, in violation of Mo. Rev. Stat. § 571.015, in that he committed the felony described in Count I with and through the use, assistance and aid of a deadly weapon. Resp. Ex. 2 at 17-20.

Petitioner's case was tried in the Circuit Court of St. Louis County, on September 10-11, 2007. The testimony at Petitioner's trial was that on September 22, 2002, Surendra Chowdary was working the third shift at the Travelodge on National Bridge Road in Berkley; that at about 6 a.m., Mr. Chowdary was setting up donuts and coffee in the lobby when an individual, later identified as Petitioner, approached him; that Petitioner inquired about how much a room would be at the hotel; that Mr. Chowdary told Petitioner the room rate; that Petitioner then said he would have to check with his friends and he would come back; and that Petitioner left. Resp. Ex., Trial Transcript ("Tr.) at 116-18, 127-28.

Further, the testimony at Petitioner's trial was that, shortly thereafter, Petitioner came back inside the hotel with two other individuals; that, when Petitioner returned, Mr. Chowdary was helping other hotel guests; that Petitioner and the two other individuals who entered with him waited for Mr Chowdary; that Mr. Chowdary recognized Petitioner from the first interaction; that when the other people left, Mr. Chowdary asked Petitioner whether he had decided about the room; that Petitioner then pulled out a black handgun, used "bad language," and pointed the gun at his face; and that Mr. Chowdary stepped back and put his hands up; that while Petitioner kept the gun pointed at Mr. Chowdary, Petitioner's two companions jumped over the counter; that they ordered Mr. Chowdary to get down on the floor; that Mr. Chowdary got down on the floor and they started hitting him with their fists; that one blow hit Mr. Chowdary below his eye; that the individuals asked where the panic button was located; that, after Mr. Chowdary showed them where the panic button was located, they made sure Mr. Chowdary could not access it; that the individuals asked where the cash drawer was located; that Mr. Chowdary told them that it was on the right-hand side of the front desk; thatPetitioner and one individual started searching for money near the front desk but could not open the cash drawer; that the individuals asked Mr. Chowdary to push a button to open the cash drawer; that the individuals then demanded to know where the surveillance videotape was located; that Petitioner then hit victim with the gun; that Mr. Chowdary stated it might be in the back office; that one person grabbed Mr. Chowdary's hands and another person grabbed his legs and dragged him to the back office; that the individuals asked for the keys to the back office; that Mr. Chowdary told them he had no keys; that they searched Mr. Chowdary's pockets and found keys related to the coffee machine and Mr. Chowdary's wallet and cell phone; that the individuals then broke down the door to the back office and searched the room; they then asked Mr. Chowdary to show them the surveillance tape; they tied Mr. Chowdary's feet with his shoelaces and his hands with a wire; Petitioner and his companions took the safe; the three individuals left Mr. Chowdary tied up on the floor; the owner of the hotel came in around seven a.m. and found Mr. Chowdary still tied up on the floor; the hotel owner called police; that, after he was freed, Mr. Chowdary observed that the cash drawer, which had at least $100 in it, was empty; that police contacted Mr. Chowdary to identify some photographs; that, after being shown a photo lineup, Mr. Chowdary identified number five, Petitioner, as one of the suspects; that Mr. Chowdary was one hundred percent positive of the identification; and that Mr. Chowdary stated he would remember Petitioner's face throughout his life. Tr. 117-26, 129-34, 142-489

At trial, Thomas Krull, the fingerprint examiner for St. Louis County Police Department, was called to testify for the defense. Mr. Krull testified that, of the five useable prints lifted from the robbery, none of them matched Petitioner; that he usually identifies twenty percent of the prints submitted; that is possible for a person to touch a surface and not leave a fingerprint; and that there were no prints from the victim either. Tr. 174-180.

Petitioner was found guilty as charged. The court sentenced Petitioner to concurrent terms of twenty-five years for Counts I and II. Resp. Ex. 1 at 202-203, Ex. 2 at 55-57. Petitioner filed a direct appeal on May 22, 2008. Resp. Ex. 3. By decision, dated October 22, 2008, the Missouri appellate court affirmed Petitioner's conviction. Resp. Ex. 5.

Petitioner filed a pro se post-conviction relief motion. Resp. Ex. 6 at 2-16. Counsel was appointed and filed an amended motion. Resp. Ex. 6 at 27-41. The motion court denied Petitioner's post-conviction relief motion. Resp. Ex. 6 at 43-45. Petitioner filed an appeal of the decision of the motion court. Resp. Ex. 7. By decision, dated May 18, 2010, the Missouri appellate court affirmed the decision of the motion court. Resp. Ex. 9.

On August 30, 2010, Petitioner filed his § 2254 Petition in which he raises the following issues:

(1) The trial court erred by not excluding the videotape of the robbery based on insufficient foundation;

(2) Petitioner received ineffective assistance of counsel because counsel did not interview or call as witnesses Petitioner's co-defendants; and

(3) Petitioner received ineffective assistance of counsel because counsel failed to call Officer Daniel Paulino as a witness.

II.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), applies to all petitions for habeas relief filed by state prisoners after this statute's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326-29 (1997). In conducting habeas review pursuant to § 2254 a federal court is limited to deciding whether decisions of state courts were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). "'Federal law, as determined by theSupreme Court,' refers to 'the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.'" Evenstad v. Carlson, 470 F.3d 777, 782-83 (8th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). To obtain habeas relief, a habeas petitioner must be able to point to the Supreme Court precedent which he thinks the state courts acted contrary to or applied unreasonably. Id. at 283 (citing Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006); Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000)). Thus, where there is no federal law on a point raised by a habeas petitioner, a federal court cannot conclude either that a state court decision is "'contrary to, or involved an unreasonable application of, clearly established Federal law' under 28 U.S.C. §2254(d)(1)." Id. at 784. "When federal circuits disagree as to a point of law, the law cannot be considered 'clearly established' under 28 U.S.C. § 2254(d)(1). Id. at 783 (citing Tunstall v. Hopkins, 306 F.3d 601, 611 (8th Cir. 2002)). See also Carter v. Kemna, 255 F.3d 589, 592 (8th Cir. 2001) (holding that in the absence of controlling Supreme Court precedent, a federal court cannot reverse a state court decision even though it believes the state court's decision is "possibly incorrect").

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court set forth the requirements for federal courts to grant writs of habeas corpus to state prisoners under § 2254. The Court held that "§2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for writ of habeas corpus with respect to claims adjudicated on the merits in the state court." Id. at 412. The Court further held that the writ of habeas corpus may issue only if the state-court adjudication resulted in a decision that:

(1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal Law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materiallyindistinguishable facts. Under the"unreasonable application"clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that

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