Williams v. Norman

• Court: U.S. District Court — Western District of Missouri
• Writing for the Court: DEAN WHIPPLE
• Decision Date: 30 May 2012
• Docket Number: Case No. 12-3039-CV-S-DW-P
• Citation: Williams v. Norman, Case No. 12-3039-CV-S-DW-P (W.D. Mo. May 30, 2012)
• Parties: RODERICK WILLIAMS, Petitioner, v. JEFF NORMAN, Respondent.

RODERICK WILLIAMS, Petitioner,

v.JEFF NORMAN, Respondent.

Case No. 12-3039-CV-S-DW-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

Date: May 30, 2012

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS AND

DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Roderick Williams, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on January 20, 2012, seeking to challenge his 2006 convictions and sentences for two counts of forcible rape, which were entered in the Circuit Court of Barry County, Missouri.

Petitioner raises five grounds for relief: (1) that the trial court abused its discretion by prohibiting petitioner from questioning prospective jurors about whether they could consider the entire range of punishment for forcible rape; (2) that the trial court erred in overruling petitioner's objections and post-trial motions for a new trial; (3) that the trial court abused its discretion when it denied the defense counsel's motion for a mental examination; (4) that the trial court abused its discretion in sending Kashina Bergesch's written statement to the jury during its deliberation; and (5) that the motion court erred in denying petitioner's Rule 29.15 motion for post-conviction relief because petitioner's counsel was allegedly ineffective.

SUMMARY OF THE FACTS

On direct appeal, the Missouri Court of Appeals summarized the facts as follows:

On the evening of October 28, 2004, Victim, who was sixteen years old, went to visit her friend, Kashina Bergesch ("Bergesch").

Bergesch lived in a second-floor apartment. Bergesch had to leave for a little while, and Victim sat at the top of the stairs for about thirty minutes waiting for Bergesch to return. [Petitioner] and Michael Wilson ("Wilson") came up the stairs and knocked on Bergesch's door. When no one answered the door, the two men sat and talked with Victim, although she did not know who they were. [Petitioner], who was twenty-four years old, gave Victim some vodka to drink, and the three of them sat there drinking for about an hour. Victim stood up and started to fall because she was tipsy, and [petitioner] caught her. [Petitioner] tried to kiss her, and she pushed away from him. Then [petitioner] and Wilson pushed Victim through the window of a vacant apartment next to Bergesch's apartment. Wilson took off Victim's shoes and pants while she was hitting him and screaming at him to stop. Then one of them hit her in the head, and she fell to the floor. They pulled her into the kitchen, and Wilson had sexual intercourse with her. Victim fought and yelled, "No" for a while, but eventually she gave up because he wouldn't stop. When Wilson was finished, [petitioner] pulled Victim further into the kitchen and had sexual intercourse with her. While he was having sex with her, Bergesch was walking up the stairs and, hearing Victim screaming, she came into the apartment and pulled [petitioner] off of Victim. Bergesch took Victim to her apartment. A female officer who had arrived at the scene convinced Victim to go to the hospital. Sperm was detected in the vaginal swabs taken as a part of the rape kit at the hospital. DNA testing performed on the sperm cells revealed a mixture of two individuals; [petitioner] was consistent with being a major contributor, and Wilson was consistent with being a minor contributor.

[Petitioner] was charged, convicted, and sentenced[.]

(Respondent's Exhibit E, pp. 2-3).

Before the state court findings may be set aside, a federal court must conclude that the state court's findings of fact lack even fair support in the record. Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Credibility determinations are left for the state court to decide. Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir. en banc 1984). It is petitioner's burden to establish by clear andconvincing evidence that the state court findings are erroneous. 28 U.S.C. § 2254 (e)(1).¹ Because the state court's findings of fact have fair support in the record and because petitioner has failed to establish by clear and convincing evidence that the state court findings are erroneous, the Court defers to and adopts those factual conclusions.

GROUNDS 1, 2, 3, & 4

In ground 1, petitioner contends that the trial court abused its discretion when it prohibited petitioner from questioning prospective jurors about whether they could consider the entire range of punishment for forcible rape. In ground 2, petitioner contends that the trial court erred in overruling his objections to the jury selection process and denying his motion for a new trial. In ground 3, petitioner contends that the trial court erred in denying his motion for a mental examination on the day before trial. In ground 4, petitioner contends that the trial court abused its discretion by allowing the jury to view a witness's written statement while deliberating.

On direct appeal, the Missouri Court of Appeals disposed of the claims raised in grounds 1, 2, 3, and 4 as follows:

[Ground 1]

[Petitioner] argues that his right to an impartial jury under the United States and Missouri Constitutions was denied because he could not determine if any potential jurors held prejudice or bias that would prevent them from fully considering the entire range of punishment.

Before voir dire commenced, the trial court sustained the State's Second Motion in Limine, which requested the court to preclude [petitioner] from making statements in the presence of the jury oradducing any evidence or testimony concerning the specific ranges of punishment for the charged offenses. The trial court, however, instructed [petitioner] that he could inquire about punishment during voir dire, using the general language set forth in State v. Busse, 169 S.W.3d 900 (Mo. App. 2005), as a guideline. n.4

n.4 In Busse, the defendant was charged with first-degree murder, and defense counsel attempted to inform the jury panel during voir dire that the punishment for that offense is life without parole. 169 S.W.3d at 903-04. Following the State's objection, the trial court instructed defense counsel that he could only talk about the punishment in general terms, such as "it'll be a long time," or "an extreme number of years, lots of years[.]" Defense counsel asked the court, "Can I talk about anything with the range of punishment in reference to years?" The court responded, "Sure. You can talk about it'll be a long time, but as far as the specific range of number of years, that's inappropriate." Id at 904. Defense counsel told the court he also wanted to inform the jury panel that the range of punishment for the lesser included offense of second-degree murder is ten to thirty years or life. Id. at 904. The court responded, "Well, we're not going to talk about up and down the ranges on whether they don't find guilty on one. We're not going to talk about specific term of years.... You're being disallowed from asking it and giving that range of years. I'm telling you, you can emphasize the fact we're talking about a lot of years." Id.

[Petitioner] asked the trial court if, at the appropriate time before the jury panel was released, he could make a record with regard to the questions he would like to ask. The trial court responded that he would be allowed to make that record.

[Petitioner] did not ask any questions relating to punishment, nor did he make a record regarding the questions he desired to ask related to punishment during voir dire. At the conclusion of voir dire, the jury panel was dismissed for lunch while the trial court considered challenges for hardship. After the jury panel was released, but before taking up the challenges for cause, [petitioner] asked the trial court if it was the appropriate time to make his record. The State objected:

BY [THE STATE]: Judge. I don't think there—There was never any question—there wasn't a single solitary question asked along the lines of this Court was going to allow them to inquire about it.

BY [DEFENSE COUNSEL]: I understand that, Judge. Well, you said I could—you were not going to allow me to ask specific questions about punishment.

BY THE COURT: No, but I was going to allow you to ask questions that—

BY [DEFENSE COUNSEL]: Right.

BY THE COURT:—would go to jail time, that would go to a lot of time, but you didn't-didn't do that.

BY [DEFENSE COUNSEL]: I didn't do that, but what I would like to have been able to ask was—you know, your total range of punishment on forcible rape is from five years to life, could you consider that punishment? It was my understanding I would not be allowed to ask that question.

BY [THE STATE]: Judge, during the voir dire process, which was a [sic] hour and a half, he didn't ask any questions that the Court specifically said he could ask. So I think he's trying on the backhand to make a record about something that he chose not to do is in appropriate [sic].

BY THE COURT: Well, you can make the record, but I think that you had to go into inquiry[,] and I think you had to, at least, proceed along the line where I gave you the opportunity to discuss punishment.

BY [DEFENSE COUNSEL]: Well, thank you, Judge. My record would be that if I had been permitted to do so, I would have inquired to the specific entire range of punishment for forcible rape[,] which is a minimum of five years to life in prison, further the specific entire range of punishment for statutory rape, a minimum of five to a maximum of seven years in

prison.

BY THE COURT: And/or a fine of $5,000.

BY [DEFENSE COUNSEL]: And a fine of $5,000 and including a possibility of jail time from one to 12 months. That's my understanding that it was. Perhaps I'm not making this record at the appropriate time. But my understanding was that the Court's prior ruling that I would not be allowed to ask those specific questions, and that I would be allowed at a later date to state specifically which questions that I would have asked if I had been allowed to do so. And this is my effort to do so at this

...