Wilson v. Bowersox

• Decision Date: 24 September 2014
• Docket Number: Case No. 4:13CV1206 JCH
• Court: U.S. District Court — Eastern District of Missouri
• Parties: MATTHEW E. WILSON, Petitioner, v. MICHAEL S. BOWERSOX, Respondent.

MATTHEW E. WILSON, Petitioner, v. MICHAEL S. BOWERSOX, Respondent.

Case No. 4:13CV1206 JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

September 24, 2014

MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner Matthew E. Wilson's pro se amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

On June 13, 2008, a jury in the Circuit Court of St. Charles County, Missouri, found Petitioner guilty of one count of first-degree robbery, one count of felonious restraint, one count of forcible sodomy, one count of sexual abuse, and four counts of armed criminal action. On July 18, 2008, Petitioner was sentenced as a prior and persistent offender to two terms of life imprisonment, plus two sentences of fifteen years' imprisonment, and four sentences of twenty-five years' imprisonment.¹ The Missouri Court of Appeals affirmed the convictions and sentence. State v. Wilson, 320 S.W.3d 222 (Mo. App. 2010). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. The Missouri Court of Appeals affirmed the denial of post-conviction relief. Wilson v. State, 383 S.W.3d 51 (Mo. App. 2012).

Petitioner is currently incarcerated at the South Central Correctional Center in Licking, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following ten claims for relief:

(1) That the trial court erred in allowing Petitioner to proceed to trial without counsel;

(2) That Petitioner received ineffective assistance of counsel, in that appellate counsel failed to raise on direct appeal the trial court's error in failing to appoint substitute counsel;

(3) That the prosecutor engaged in misconduct, by informing witnesses subpoenaed by Petitioner that they need not honor the subpoenas, by threatening Petitioner's witness into refusing to provide evidence to Petitioner, and by withholding evidence;

(4) That the prosecutor engaged in misconduct by tampering with the jury;

(5) That the deputy sheriff engaged in misconduct by tampering with the jury;

(6) That the alleged victim engaged in misconduct by tampering with the jury;

(7) That the prosecutor engaged in misconduct by erasing an exculpatory news videotape;

(8) That the prosecutor engaged in misconduct by withholding an exculpatory videotape;

(9) That the prosecutor engaged in misconduct by withholding a second videotape; and

(10) That Petitioner received ineffective assistance of counsel, in that his original trial counsel failed to receive and utilize an exculpatory videotape.

The Court will address the claims in turn.

DISCUSSION

I. Procedural Default²

"A section 2254 applicant's failure to raise a claim in state post-conviction proceedings results in procedural default of that claim." Lyons v. Luebbers, 403 F.3d 585, 593 (8^th Cir. 2005) (citation omitted); see also Skillicorn v. Luebbers, 475 F.3d 965, 976 (8^th Cir.) (citation omitted) ("Claims that have not been presented to the state courts, and for which there are no remaining state remedies, are procedurally defaulted."), cert. denied, 552 U.S. 923 (2007). "To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly presented the substance of the claim to the state courts, thereby affording such courts a fair opportunity to apply controlling legal principles to the facts bearing upon [the] claim." Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8^th Cir.) (internal quotations and citations omitted; alteration in original), cert. denied, 540 U.S. 870 (2003). "A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts which he is attempting to raise in his federal habeas petition." Id. at 1021 (internal quotations omitted). The Court finds that the majority of Petitioner's ten grounds for relief are procedurally barred, as a result of his failure properly to raise them in state court proceedings.

A. Grounds 3, 8, And 9

As stated above, in Ground 3 of his petition Petitioner asserts the prosecutor engaged in misconduct, by informing witnesses subpoenaed by Petitioner that they need not honor the subpoenas, by threatening Petitioner's witness into refusing to provide evidence to Petitioner, and by withholding evidence. (§ 2254 Petition, PP. 12-14). In Ground 8 Petitioner asserts the prosecutor engaged in misconduct by withholding an exculpatory news videotape, as follows: "That the assistant prosecutor, Rebecca Shaffar, had received a copy of the news reporter interview with the allege victim containing the allege victim stating "He never touch me," which shows "Defendant's" innocents, but, said-prosecutor withheld the said-tape, and did not turn itover to defense."³ (Id., PP. 18-19). In Ground 9 Petitioner asserts the prosecutor engaged in misconduct by withholding a second videotape, as follows:

On June 10, 2008, assistant prosecutor, Rebecca Shaffar, was handed a cassette tape by Tracy Conger while a Trisha Barker filmed it by video without being seen. As the said-cassette tape contained the allege-victim asking the "Defendant" to do a "hit" on her husband and contained all of actually went on during the allege crime that shows no crime actually took place which proves "Defendant's" innocents.

(Id., PP. 19-20).

Petitioner raised variations of these claims before the 29.15 post-conviction motion court, and the court denied the claims as follows:

2a. Movant's⁴ second and third claims were based on a denial for compulsory process for obtaining witnesses/prosecutorial misconduct and prosecutorial misconduct.

2b. First, movant fails to claim that appellate counsel was ineffective for not including these claims (trial court denial for compulsory process) in his direct appeal. Movant is only entitled to relief under a Rule 29.15 motion to challenge that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so or that the sentence imposed was in excess of the maximum sentence authorized by law. Movant fails to state a claim upon which relief can be granted or that an evidentiary hearing should be granted as to the denial of compulsory process. Trial errors are a matter for direct appeal and cannot be litigated under a Rule 29.15 motion.

Generally, a freestanding claim of prosecutorial misconduct is not considered in a Rule 29.15 motion. Such motions are not substitutes for direct appeal. Tisius v. State, 183 S.W.3d 207, 213 (Mo. banc 2006.) Claims of trial error are only cognizable in a Rule 29.15 motion when fundamental fairness requires, and then, "only in rare and exceptional circumstances." Tisius, 183 S.W.3d at 213. If the alleged misconduct were apparent at trial, then it is not an issue for a Rule 29.15 motion, but for direct appeal. Id. Here, this alleged misconduct would have been apparent not only at trial, but before trial. As the movant's motion

claims, his "desire and intention to present the videotape evidence at trial was exceedingly apparent before trial." See Movant's Amended Motion to Vacate, Set Aside or Correct Judgment page 22, footnote 4 regarding a hearing on October 28, 2007. Additional examples of recorded hearings on these issues include a hearing on January 18, 2008, (transcript on appeal, page 251 line 17 through page 259 line 9) a hearing on June 5, 2008, (transcript on appeal page 208 line 4 through page 216 line 14) another hearing on June 10, 2008, (transcript on appeal page 232 line 10 through page 238 line 19) and the trial itself on June 13, 2008. (transcript on appeal page 728 line 11 through page 731 line 8) This is not an exhaustive list of the examples to show these claims were apparent at trial. Movant fails to state a claim upon which relief can be granted or that an evidentiary hearing should be granted as to prosecutor misconduct. This matter could be an issue on direct appeal and cannot be litigated under a Rule 29.15 motion under the facts presented in this case....

4a. Movant alleges that the assistant prosecutor told several news channels they did not have to honor subpoenas.

4b. This claim in essence, is prosecutorial misconduct which has been addressed in 2b above. Therefore, this claim does not entitle defendant to post-conviction relief or an evidentiary hearing.

5a. Movant alleges he was not able to receive news tapes showing the alleged victim stating she was never touched or sexually molested by the defendant.

5b. In essence, this is the same as claim 2a above. Movant is only entitled to relief under a Rule 29.15 motion to challenge that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so or that the sentence imposed was in excess of the maximum sentence authorized by law. Movant fails to state a claim upon which relief can be granted or that an evidentiary hearing should be granted as to the denial of compulsory process. All trial errors are a matter for direct appeal and cannot be litigated under a Rule 29.15 motion. Movant has failed to state a claim that relief can be granted under rule 29.15.

6a. Movant's last two claims alleged that the assistant prosecutor withheld evidence.

6b. Prosecutorial misconduct has been discussed above and movant is not entitled to any relief or an evidentiary hearing.

(Resp.'s Exh. F, PP. 68-70). Petitioner advanced the claims on appeal of the denial of his Rule 29.15 motion, and the Missouri Court of Appeals denied the claims as follows:

Wilson's second point on appeal focuses on claims of prosecutorial

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