Wiggins v. And, Case number 4:07cv1288 TCM

CourtUnited States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
Writing for the CourtTHOMAS C. MUMMERT, III
PartiesCHAVON ADIR WIGGINS, Petitioner, v. CHRIS KOSTER and JOHN T. RATHMAN,1Respondents.
Docket NumberCase number 4:07cv1288 TCM
Decision Date16 March 2011

CHAVON ADIR WIGGINS, Petitioner,
v.
CHRIS KOSTER and
JOHN T. RATHMAN, 1Respondents.

Case number 4:07cv1288 TCM

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

Dated: March 16, 2011


MEMORANDUM AND ORDER

Chavon Adir Wiggins (Petitioner) petitions the United States District Court for the Eastern District of Missouri for federal habeas corpus relief from a Missouri conviction after a jury trial.2 See 28 U.S.C. § 2254. Finding the federal habeas petition presents sixteen grounds for relief, and concluding that ten grounds are procedurally barred and the other six grounds are without merit, the petition will be denied without further proceedings.

Background

Petitioner was charged, as a prior and persistent offender, with acting with others to

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commit one count of murder in the first degree, in violation of Mo. Rev. Stat. § 565.020, for the shooting death of Harlan Tyler on July 6, 1998; two counts of first degree assault, in violation of Mo. Rev. Stat. § 565.050, for shooting and inflicting serious physical harm on Latoya Jones and Steven Smith, who were shot on July 6, 1998; one count of burglary in the first degree, in violation of Mo. Rev. Stat. § 569.160, for unlawfully entering Tyler's apartment on July 6, 1998; one count of stealing a motor vehicle, in violation of Mo. Rev. Stat. § 570.030, for taking a van from Audrey Dolan without her consent on or about July 5, 1998; one count of robbery in the first degree, in violation of Mo. Rev. Stat. § 569.020, for forcibly stealing property from Tyler on July 6, 1998, while armed with a deadly weapon; and four counts of armed criminal action, in violation of Mo. Rev. Stat. § 571.015, related to the murder, assault, and robbery offenses. (Information, filed Oct. 16, 2002, Legal File, Resp'ts Ex. 6, at 6-20 [all of Respondents' exhibits are part of Doc. 27]; Trial Court Findings that Pet'r was a Prior and Persistent Offender, Legal File, Resp'ts Ex. 6, at 52 and Trial Tr. Vol. 1, Resp'ts Ex. 1, at 36-37; Trial Tr. Vol. 5, Resp'ts Ex. 5, at 1471.)

Less than a week prior to the start of trial, Petitioner's defense attorney (Counsel) sought leave to withdraw on the ground that Petitioner had, on one occasion during that week, struck Counsel in the face at the conclusion of a contact visit at the jail, and Counsel was pursuing criminal charges against Petitioner as a result of that altercation. (Mot. Withdraw, Legal File, Respt's Ex. 6, at 28-29; 39-42.) In his motion, Counsel reported that he thought he had a conflict of interest in representing Petitioner due to the pending criminal charges, he

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"fe[lt] he cannot zealously represent [Petitioner]" in the criminal case, and he found Petitioner "repugnant." (Id.) At a pre-trial hearing on the motion to withdraw, the trial court heard argument of Counsel, of an attorney who entered an appearance only to represent Petitioner on the motion to withdraw and related hearing (Withdrawal Counsel), an attorney who represented the interests of trial counsel and the state public defender system (Supervisor), and the prosecutor. (See Entry of Appearance, Mot. for Appointment of Substitute, Conflict-Free Trial Counsel, and Motion for Continuance of Trial Setting, Legal File, Resp'ts Ex. 6, at 30-49 and Trial Tr. Vol. 1, Resp'ts Ex. 1, at 3-32.) While acknowledging there was a conflict between Counsel and Petitioner, the trial court denied the motion stating that Petitioner "cannot be permitted to benefit from his misconduct" and that the trial court did "not want to send the message that the way to get a continuance or the way to get a new lawyer is to attack your attorney." (Trial Tr. Vol. 1, Resp'ts Ex. 1, at 30-31.) The trial court ordered Counsel to provide Petitioner with effective assistance of counsel, required Petitioner to be shackled ("his hands will be belly-chained, his feet will be tethered") throughout trial, and directed that Petitioner be given a pad of paper and pen for the purpose of writing notes to Counsel. (Id. at 31-32; see also id. at 62-63, 65-66, 312-13.) The trial court further provided that jurors not be allowed in the courtroom until Petitioner was seated. (See, e.g., id. at 313.) Throughout trial Supervisor sat between Petitioner and Counsel. (Id. at 32.)

Prior to trial, the trial court granted and denied various motions in limine. (See, e.g., id. at 37-60; Pet'r Mot. Limine, Legal File, Resp'ts Ex. 6, at 50-51; Trial Tr. Vol. 1, Resp'ts

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Ex. 1, at 37-60.) One such motion filed by Petitioner sought to preclude the State from "elicit[ing] testimony that [Petitioner] possessed firearms in the past or showed firearms to persons on dates before... the crimes for which [Petitioner] is charged [because such] testimony is proof of prior bad acts and/or uncharged crimes and is more prejudicial than probative." (Pet'r Mot. Limine, Legal File, Resp'ts Ex. 6, at 50-51; Trial Tr. Vol. I, Resp'ts Ex. 1, at 58-60.) After hearing argument, the trial court denied the motion upon noting the State was going to be "referring to two guns" that were expected to be in evidence as part of the crimes charged and it would be up to the jury to decide whether the guns reportedly seen with Petitioner before the crimes were the same guns that were involved in the crimes charged. (Trial Tr. Vol. I, Resp'ts Ex. 1, at 60.)

During the six-day trial, the State introduced the testimony of twenty witnesses. Audrey J. Dolan testified that she lived about a block east of Tyler's apartment and sometime between 10:40 p.m. on July 5, 1998, and 7:30 a.m. on July 6, 1998, her van was stolen. (Trial Tr. Vol. III, Resp'ts Ex. 3, at 630-36.) LaToya Jones testified that she was with Tyler the night he was shot, they had been sleeping in the bedroom and were awakened when the door was kicked in by four men, and she was shot, sustaining injuries to her left hand, stomach, chin, and face, including the loss of seven teeth and her left eye. (Trial Tr. Vol. V, Resp'ts Ex. 5, at 1245-50.) Jones also identified as belonging to Tyler the clothing Officer Kevin Cissell seized from a residence on Minnesota Avenue and referred to as Petitioner's and Ronnie's cousin's home. (Id. at 1252-57.)

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Officer William Miller with the City of Olivette Police Department testified that he was first to arrive on the scene in response to a report of shots fired at an apartment complex on July 6, 1998, and he found a white male bleeding from his neck on a landing outside an apartment building, with a woman "over the top of him" and a dog on a leash running loose nearby, and a bullet fragment in the wall; the woman was the man's girlfriend and told Officer Miller that the man's name was Steven Smith. (Id. at 1167-72, 1176.) Officer Miller stated the man reported that a black male had shot him and had run upstairs; Officer Miller went up, found Tyler's apartment door was open, noticed the belongings in the apartment were in disarray, discovered Tyler's body, which was "tied, bound, gagged, [had] numerous stab wounds[, and] appeared to have also been shot, " in the bedroom, and found a woman, who had been shot several times, in the bathroom. (Id. at 1176-82.) Ronald Turgeon, the medical examiner, testified Tyler only had shorts on and his ankles were bound together, his wrists were bound together behind his back, duct tape was wrapped around his head covering his eyes, and his body revealed, among other things, the existence of several stab wounds, several slash wounds, and two gunshot wounds. (Trial Tr. Vol. III, Resp'ts Ex. 3, at 831, 834-35, 84344, 846-47, 848, 850-51, 852, 853, 854, 856-57, 864, 870.) He opined that Tyler died of a gunshot to the head. (Id. at 870.)

Olivia Barton testified she and Brandi Benton met Petitioner, Ronnie, 3 and two men she did not know, late on the evening of July 5, 1998, when they drove first to a place where

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Petitioner changed clothes, and on the way there Petitioner said "I'm gonna get this nigger. This is the big one. We're gonna come out big on this." (Trial Tr. Vol. III, Resp'ts Ex. 3, at 637, 640-41, 643-45.) Then, they went to Ronnie's mother's house where Petitioner and the two men were dropped off and then the women and Ronnie went to Benton's home, where Barton stayed to babysit Ronnie's daughter, and Benton and Ronnie left. (Id. at 646-48.) She noticed that Petitioner, Ronnie, and one of the other men had dark-colored hats with them that evening. (Trial Tr. Vol. V, Resp'ts Ex. 5, at 1238-39, 1243, 1244.) Barton further testified that on or about July 9, 1998, she gave an oral, then a written, and then a videotaped statement (in which she read her written statement) to the police; and identified the four men involved through a photo lineup. (Trial Tr. Vol. III, Resp'ts Ex. 3, at 650-61; Trial Tr. Vol. V, Resp'ts Ex. 5, at 1238-39.)

Brandi Benton, who had been Ronnie's girlfriend and was raising his daughter, testified that late the evening of July 5, 1998, Ronnie asked her if she wanted to make some money and if her friend, Barton, would like to make money babysitting. (Trial Tr. Vol III, Resp'ts Ex. 3, at 688.) She said yes and when she was with Ronnie, with Barton and Ronnie's daughter, she drove Petitioner and two males she did not know first to a house where Petitioner changed, then to Ronnie's mother's home, and then she took Ronnie, Barton, and Ronnie's daughter to her home. (Id. at 688-89, 695-97.) After leaving Barton and...

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