Turner v. Cassady
| Decision Date | 25 July 2016 |
| Docket Number | No. 4:13CV02470 ERW,4:13CV02470 ERW |
| Parties | BILLY RAY TURNER, Petitioner, v. JAY CASSADY, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter comes before the Court on the Report and Recommendation of United States Magistrate Judge Nannette Baker, pursuant to 28 U.S.C. § 636(b)(1), recommending the denial of Petitioner Billy Ray Turner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. ECF No. 66. Petitioner filed objections to the Report and Recommendation, [ECF No. 110], after a hearing on multiple motions before the Court on March 22, 2016. When a party objects to a Report and Recommendation, the Court must "make a de novo review determination of those portions of the record or specified proposed findings to which objection is made." United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)). To trigger de novo review in most cases, "objections must be timely and specific." Thompson v. Nix, 897 F.2d 356, 358 (8th Cir.1990). However, the Eighth Circuit Court of Appeals has been willing to "liberally construe[ ]" otherwise general pro se objections to require a de novo review of all "alleged errors." See Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir.1995).
On October 4, 2006, Petitioner was found guilty by a jury of three counts of statutory sodomy in the first degree and one count of incest, in the Circuit Court of the City of Saint Louis, Missouri. See State of Missouri v. Billy Turner, Cause No. 04-CR74573-01 and 22051-0364 (22nd Judicial Circuit). ECF No. 53-5. Petitioner was sentenced on November 17, 2006, to a term of imprisonment of fifteen years on each count of statutory sodomy and four years for incest, with the sentences to be served consecutively. ECF No. 53-5 at 170-173. Petitioner filed a direct appeal of his conviction with the Missouri Court of Appeals of the Eastern District. ECF No. 53-6. The Missouri Court of Appeals of the Eastern District affirmed the ruling of the Circuit Court on appeal. ECF No. 53-8 at 1-3.
Petitioner then filed a pro se Rule 29.15 motion in state court, alleging twenty-four grounds of ineffective assistance of trial counsel and one ground for improper judge sentencing. In his form motion, he alleged ineffective assistance of appellate counsel, but stated no facts in support of that ground. ECF No. 53-1 at 9-82. The state Motion Court denied Petitioner's claims. ECF No. 53-1 at 83. The Missouri Court of Appeals affirmed the Motion Court's ruling on appeal. ECF No. 53-4 at 1-9.
Petitioner filed his initial habeas corpus motion in this Court pro se on December 9, 2013. He filed an amended habeas corpus petition on January 2, 2014, claiming five grounds of ineffective assistance of trial counsel in violation of the Sixth Amendment and a violation of the due process clause of the Fourteenth Amendment in Ground six. ECF No. 10. In response to the Report and Recommendation, Petitioner filed over fifteen motions. The Court held a hearing on February 22, 2016, to resolve the motions. The Court denied these motions, and instructed Petitioner to file objections to the Report and Recommendation and include, in his objections, any remaining arguments. Petitioner, in response, filed a "Petitioner's Compliance with Court Order to File exceptions to the United States Magistrates Recommendations," which the Court interprets as his objections to the Report and Recommendation. ECF No. 110. Petitioner alsofiled a motion for an evidentiary hearing and for appointment of counsel. ECF No. 111.
In Ground One of the Petition, Petitioner alleges his trial counsel failed to raise the corroboration rule during the 4911 hearing; in Ground Two, Petitioner alleges trial counsel failed to effectively cross-examine and impeach, Marilyn McCoy, Dawn Dick, Victim, and the S.A.F.E.2 examiner, Catherine Blevins. He also alleges his trial counsel failed to recuse, failed to call an adverse defense witness, and failed to impeach the credibility of defense witnesses; in Ground Three, Petitioner alleges trial counsel failed to call numerous other defense witnesses during the trial; in Ground Four, he alleges trial counsel failed to reasonably investigate Petitioner's case and counsel failed to obtain crucial evidence that would have established Petitioner's innocence; in Ground Five, he alleges trial counsel failed to call a medical expert to testify; and in Ground Six, he alleges newly discovered evidence clearly and convincingly establishes his innocence. ECF No. 10 at 21-44.
Respondent generally contends Petitioner's claims are procedurally defaulted for failure to raise them in state court proceedings, and those exhausted by state court proceedings resulted in decisions, in state court, that were not contrary to, or did not involve an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Respondent also argues the state court decisions were not based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings. In support, Respondent cites the holding in Harrington v. Richer, 131 S. Ct. 770, 786 (2011), "A state court's determination that a claim lacks merit precludes federal habeas relief so long as'fair[]minded jurists could disagree' on the correctness of the state court's decision." ECF No. 22. More specifically, Respondent argues Petitioner defaulted on Grounds One and Six because they are barred from review due to Petitioner's failure to raise them on direct appeal or in his motion for post-conviction relief, citing Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). In opposition to Petitioner's Ground Two, Respondent states Petitioner defaulted on parts of Ground Two which were not raised on direct appeal or in the state habeas proceeding, specifically, trial counsel's failed to impeach Marilyn McCoy and Dawn Dick as adverse witnesses. Respondent further argues the remainder of Petitioner's claims, Grounds Three, Four, and Five, previously considered in state court, fail to meet standards requiring relief. ECF No. 22. Respondent asserts a writ of habeas corpus should not be granted.
Under 28 U.S.C. § 2254(a), a state prisoner may petition for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." The "function of habeas . . . is to test by way of an original civil proceeding . . . the very gravest allegations." Townsend v. Sain, 372 U.S. 293, 311-12 (1966), overruled on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Importantly, "[s]tate prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Wessling v. Bennett, 410 F.2d 205, 209 (8th Cir. 1969) (quoting Townsend, 372 U.S. at 312).
A § 2254 petition may be based upon a violation of the Sixth Amendment right to effective assistance of counsel. See Williams v. Roper, 695 F.3d 825 (8th Cir. 2012). When a habeas petitioner claims ineffective assistance of counsel, the Court's decision must be made Wolfs v. Britton, 509 F.2d 304, 309 (8th Cir. 1975). To be successful on a claim of ineffective assistance of counsel, the petitioner must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Specifically, the petitioner must demonstrate: (1) counsel's performance was deficient in that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) counsel's "deficient performance prejudiced the defense." Id. at 687; see also Auman v. U.S., 67 F.3d 157, 162 (8th Cir. 1995). The Court may address the two Strickland prongs in any order, and if a petitioner fails to make a sufficient showing on one prong, the Court need not address the other. Strickland, 466 U.S. at 697; see also U.S. v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003) ().
To prove deficient performance, a petitioner must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688; see also Armstrong v. Kemna, 534 F.3d 857 (8th Cir. 2008) (). "Only reasonable competence, the sort expected of the 'ordinary fallible lawyer,' . . . is demanded by the Sixth Amendment." White v. Helling, 194 F.3d 937, 941 (8th Cir. 1999) (internal citation omitted). The standard Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (citing Strickland, 466 U.S. at 688-89) (internal quotationsomitted). An evaluation of "reasonableness" requires consideration of all the facts, which must be viewed "as they existed at the time of counsel's conduct." Marcrum v. Luebbers, 509 F.3d 489, 502 (8th Cir. 2007). Similarly, the Court must view the alleged deficiency of counsel's performance "in light of professional norms prevailing when the representation took place." Sinisterra v. U.S., 600 F.3d 900, 906 (8th Cir. 2010). In this sense, restatements of professional standards are...
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