OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY
Petitioner, a convicted state prisoner currently confined at the Western Reception, Diagnostic, and Correctional Center in Saint Joseph, Missouri, has filed pro se a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions and sentences for false imprisonment and sexual abuse, which were entered in the Circuit Court of Bates County, Missouri. Petitioner's convictions and sentences were affirmed on direct appeal. State v. Wright, 318 S.W. 3d 786 (Mo. Ct. App. 2010). The denial of his motion for post-conviction relief filed pursuant to Mo. Sup. Ct. R. 29.15 was upheld on appeal thereof. Wright v. State, 409 S.W. 3d 580 (Mo. Ct. App. 2013). Petitioner has completed his sentence for false imprisonment and currently is serving his sentence for sexual abuse.
Petitioner presents five (5)1 grounds for relief: (1) trial court error in finding petitioner guilty of sexual abuse because there was insufficient evidence to prove the element of forcible compulsion; (2) trial court error in finding petitioner guilty of sexual abuse because there was insufficient evidence to prove that the touching was for the purpose of sexual arousal orgratification; (3) trial court error in finding petitioner guilty of sexual abuse because the testimony of C.P. was so contradictory that it should be deemed insufficient as a matter of law or, alternatively, that the finding of guilt should be determined to be against the weight of the evidence; (4) trial court error in finding petitioner guilty of false imprisonment because there was insufficient evidence to show that he knowingly restrained C.P. in a manner that substantially interfered with her liberty; and (5) trial court error in permitting improper cross-examination of petitioner regarding an uncharged crime.
Respondent contends that all grounds are untimely and, alternatively, without merit. Respondent further contends that Ground 2 in procedurally defaulted, Ground 4 does not meet the "in custody" requirement, and that Ground 5 is an issue of state law and not cognizable in a federal habeas petition. Because this case presents an example in which "it is considerably easier and thus more judicially efficient to affirm on the merits than to untangle the complexities of the timeliness issue," this Court will address the procedural default and/or the merits of petitioner's grounds for relief. Jones v. Bowersox, 28 Fed. Appx. 610, 611 2002 WL 215523, **1 (8th Cir. Feb. 13, 2002).
In affirming petitioner's conviction and sentence, the Missouri Court of Appeals set forth the following facts:
In the pre-dawn hours of November 18, 2007, [C.P.], while driving home from a friend's house, went off the road into a ditch. [Petitioner] stopped his pickup truck at the scene of her accident, pulled [C.P.] out of her car, helped her into his truck, and agreed to take the eighteen-year-old [C.P.] home to her parents' house. However, [petitioner] drove [C.P.] past her parents' house and informed her that he was not going to take her home. [C.P.]'s reaction was decisive. She screamed, hit the window, and pleaded with [petitioner] to take her home. [Petitioner] responded by showing her a knife and informing her that "I do have aknife, just so you know."
[Petitioner] pulled into the church parking lot across from [C.P.]'s house, turned off the lights and parked. At this point [petitioner] began to grab [C.P.] between her legs and on her chest, trying to force his hands down her pants and shirt. [C.P.] testified that she fought [petitioner] by hitting, punching, and scratching him, but that [petitioner] pulled her toward him and shoved her head into his crotch area, saying "you know you want to do it," implying oral sex. During this struggle, [petitioner] touched [C.P.]'s breasts, broke her bra strap, and touched her genital region over her pants, despite her continued screaming and crying out for her father. [C.P.] testified that she was unable to get out of the truck despite pulling on the door handle and beating the window. Eventually [petitioner] stopped attacking [C.P.] and drove out of the parking lot. [C.P.] testified that she continued asking to be let out, saying [petitioner] could drop her off anywhere and she would not say anything, but [petitioner] persisted in his refusal of her requests to be taken home and, instead, asked her what she wanted to do. [C.P.] asked to be taken back to the friend's house she had come from, and [petitioner] agreed.
[C.P.] stated that [petitioner] again tried groping her as they drove past the vehicular accident scene and she screamed. [Petitioner] relented and continued driving. On the way to [C.P.]'s friend's house, the truck passed [C.P.]'s parents driving the opposite direction in the other lane. [C.P.] testified that when the truck arrived at her friend's house, [petitioner] told her to "get the f[---] out," reached across her and did something to the door, and then opened it. [C.P.]'s friend's mother answered the door and brought [C.P.] inside, helping her calm down and finding out what had happened.
[Petitioner] was arrested the next day. [Petitioner] waived his right to a jury trial, and a bench trial occurred on June 9-10, 2009. At trial, the State elicited evidence that [petitioner] had eight prior felony convictions, whereas he had only revealed two on direct examination. During re-cross, the State questioned [petitioner] if he had ever tried to pursue [ ] the owner of a bar that [petitioner] frequented, or stalked her, and he denied having done so.
The trial court found [petitioner] guilty of sexual abuse, acquitted him of felonious restraint, but found him guilty of the lesser-included offense of false imprisonment. The trial court sentenced [petitioner] to six years imprisonment for sexual abuse and a concurrent term of one year in the county jail for false imprisonment.
Resp. Ex. H, pp. 4-6.
Before the state court findings may be set aside, a federal court must conclude that thestate 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).2 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 Ground 1, petitioner contends that the trial court erred in finding petitioner guilty of sexual abuse because there was insufficient evidence to do so. Specifically, petitioner contends that there was not sufficient evidence to prove the element of forcible compulsion.
The Supreme Court has explained that claims of insufficient evidence to support a verdict face "a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012). The first layer of deference is on direct appeal, where "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.'" Id. (quoting Cavazos v. Smith, 565 U.S. 1 (2011)). A second layer of deference then applies on habeas review, where "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the statecourt." Id. Rather, "[t]he federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Id.
In evaluating petitioner's claim, the Missouri Court of Appeals explained:
[Petitioner]'s first point on appeal is that the evidence was insufficient to prove the "forcible compulsion" element of the section 566.100 sexual abuse offense. Forcible compulsion is defined in section 556.061(12) (RSMo Cum. Supp. 2007) as either "(a) [p]hysical force that overcomes reasonable resistance; or (b) [a] threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person." The Missouri Supreme Court in State v. Vandevere defined physical force, as "simply force applied to the body." 175 S.W.3d 107, 108 (Mo. banc 2005) (quoting State v. Niederstadt, 66 S.W.3d 12, 15 (Mo. banc 2002)). It is not necessary that such force follow a victim's physical resistance, "[r]ather, the force used must be calculated to overcome the victim's resistance." Id.
[Petitioner] acknowledges that there was sufficient evidence to support that he touched the victim's breasts but maintains that the element of forcible compulsion was not met because the timeline of when physical force was used is not clear. Under this argument, [petitioner] concedes that a struggle involving physical force happened but argues that there was no evidence to show that his use of force was successful in allowing him to touch [C.P.] in a sexual manner. However, this argument ignores the testimony of [C.P.] at trial.
In her trial testimony, [C.P.] established that the struggle in the cab of the truck lasted approximately fifteen minutes, that during that encounter [petitioner] touched her breasts and genitals, that her bra strap was broken, and that it was the struggle that broke her bra strap. Furthermore, [C.P.] testified that [petitioner] was "continuously trying to [touch her breasts and genitals] when [sh
...
