CERTIFICATE OF APPEALABILITY Petitioner, a convicted state prisoner currently confined at the South Central Correctional Center in Licking, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 convictions and 2006 sentences for two counts of statutory sodomy, which were entered in the Circuit Court of Buchanan County, Missouri. Petitioner's conviction was affirmed on direct appeal (Respondent's Exhibit E), and the denial of his motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was upheld on appeal thereof (Respondent's Exhibit K). Petitioner raises twenty-two (22) grounds for relief. Respondent contends that Grounds 2-18 are procedurally defaulted, Grounds 1, 19, 21, and 22 are without merit, and Ground 20 is not cognizable under 28 U.S.C. § 2254.
In affirming the judgment of conviction and sentence, the Missouri Court of Appeals, Western District, set forth the following facts:
The convictions resulted from acts that Wright committed against Barbara Meers' daughters, T.H. and S.H. Wright and Meers had cohabitated since 1995. When T.H. was eight-years-old, Wright began sexually abusing her approximatelythree times a week. He began sexually abusing T.H.'s sister, S.H., when S.H. was 10-years-old and sexually abused her an average of one to two times a month. Neither T.H. nor S.H. disclosed the abuse because they feared Wright, who drank heavily and was physically abusive, and because Wright told T.H. that he would kill her mother and sisters if she told anyone about the abuse. Wright continued sexually abusing T.H. and S.H. until 2001, when Meers ended her relationship with Wright after he threatened to kill her.
After Meers ended her relationship with Wright, S.H. told Meers that Wright had been touching her and "messing with her." S.H. made Meers promise not to tell anyone or do anything about it, so Meers did not report the abuse to authorities. During 2003, Wright's sister Michelle Wahlers, called Meers and suggested that Meers talk to her daughters because of "certain things" Wahlers had learned about her own daughter. Meers asked T.H. and S.H. whether or not Wright had ever done anything inappropriate. S.H. repeated what she had told her mother before, but did not tell her any details. T.H. did not disclose the abuse to Meers; instead, she told Meers' fiancé. Meers reported her daughters' reports to a St. Joseph police detective, who interviewed the girls.
The state charged Wright with statutory sodomy in the first degree and statutory sodomy in the second degree. Wright's first trial ended in a hung jury. Before his second trial, Wright moved to suspend the proceedings. In his motion, Wright alleged that he was awaiting trial in Clay County on similar charges and that it had ordered a psychological evaluation to determine his fitness to proceed to trial in that case. The circuit court denied Wright's motion to suspend the proceedings, finding that it was not bound by the Clay County circuit court's determination. Wright then requested that the circuit court allow him to represent himself. After an examination, the circuit court sustained Wright's request but appointed counsel to help him if he needed assistance during the trial. The jury convicted Wright on both counts, and the court sentenced him to consecutive terms of life and seven years in prison.
Wright first complains that the circuit court erred in allowing the prosecutor to inform the venire panel during voir dire that he had threatened Meers and her daughters. After telling the panel about the threats, the prosecutor asked whether or not the threats or the girls' delay in disclosing the abuse would cause the panel members to have difficulty listening to the girls' testimony and deciding whether or not to believe the girls. Wright also alleges that the circuit court erred in allowing the prosecutor to ask the panel members, after informing them that only five percent of sexual assault cases have physical evidence, whether or not any of them would require presentation of evidence. Wright also argues that the circuit court erred in permitting the prosecutor to ask the panel members whether or not they believed that child abuse victims should act in a particular way.
Wright next claims that the circuit court erred in overruling his objection to the prosecutor's comment in opening statement that Wright had admitted molesting his niece. During his opening statement, the prosecuting attorney described what Meers' testimony would be concerning the telephone call from Wahlers. He told the jury that Meers would testify that during the call Wahlers told Meers 'about a phone call that she'd had with [Wright] wherein he had confessed to having molested [Wahlers]' daughter, [A.N.W.]. [Wahlers] suggested to [Meers] . . . that she then talk with her girls to see if . . . anything had happened." On this same issue, Wright also argues the court erred in permitting the prosecutor to elicit evidence from Meers that Wahlers called Meers and "relate[d] certain things" to her regarding her daughter and suggested Meers talk to her daughters.
Wright raised a hearsay objection to the prosecuting attorney's opening statement. The circuit court overruled Wright's hearsay objection, but it cautioned the prosecutor not to make any further references to Wright's alleged sexual abuse of A.N.W. Wright did not include this claim of error in his motion for new trial. Wright did not object to Meers' testimony. He now argues that the opening statement and Meers' testimony constituted inadmissible hearsay and propensity evidence. He asks that we review his claim for plain error.
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Wright's final point is that the circuit court abused its discretion in finding that he was competent to waive his right to counsel and to proceed to trial. After the jury found Wright guilty but before the circuit court sentenced him, the prosecutor advised the court that the report from Wright's psychological evaluation in the Clay county case indicated that Wright was not competent to proceed to trial. Because of this finding, the circuit court ordered Wright to undergo psychological evaluation.
The circuit court held a competency hearing. Arnaldo A. Berges, a psychiatrist, and Jeanette Dunkin, a psychologist, evaluated Wright's competency for the Clay County case. They testified, as did Jeffrey Kline and Delaney Dean, psychologists whom the circuit court had ordered to evaluate Wright's competency for this case. Following the hearing, the circuit court concluded that Wright was competent to waive his right to counsel and to proceed to trial.
Respondent's Exhibit E, pp. 1-6.
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), cert. denied, 469 U.S. 842 (1984). It is petitioner's burden to establish by clear and convincing 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.
In Grounds 2, 5, 7-9, and 11, petitioner claims that trial counsel was ineffective for failing to request a competency evaluation of petitioner, refusing to secure a conflict counsel to represent petitioner, failing to assist petitioner with a motion for a new trial, illegally backdating petitioner's mail, covering up prosecutorial misconduct, failing to subpoena a doctor and a caseworker, and failing to subpoena a furnace repairman. Doc. No. 1, pp. 6, 14, 16-18, 21. In Grounds 14-16, and 18, petitioner claims that the prosecutor knowingly introduced perjured testimony from witnesses and "took full advantage of petitioner's pro se status." Doc. No. 1, pp. 24-26. In Grounds 3, 4, and 13, petitioner claims that the trial court erred by failing to give petitioner a competency evaluation until after trial, refusing to hear petitioner's motion alleging a conflict of interest before the court heard petitioner's motion to represent himself, and refusing to allow petitioner to call his trial attorney and prosecutor as witnesses. Doc. No. 1, pp. 8-9, 13 In Ground 10, petitioner claims that appeal counsel was ineffective for intentionally filing an incomplete record on appeal. Doc. No. 1, p. 19. In Ground 12, petitioner claims that his diagnosis has been changed from bipolar disorder toschizoaffective bipolar type. Doc. No. 1, p. 22. Finally, in Ground 17, petitioner claims B.M's testimony contradicts her previous statements to a social worker. Doc. No. 1, p. 27.
"A habeas petitioner is required to pursue all available avenues of relief in the state courts before the federal courts will consider a claim." Sloan v. Delo, 54 F.3d 1371, 1381 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996). "If a petitioner fails to exhaust state remedies and the court to which he should have presented his claim would now find it procedurally barred, there is a procedural default." Id. Petitioner procedurally defaulted Grounds 2-18 by failing to include the claims in his post-conviction appeal. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997)(recognizing that failure to present claims in the Missouri courts at any stage of direct appeal or post-conviction proceedings is a procedural default), cert. denied, 523 U.S. 1010 (1998).
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