Opinion
Civ. No. 4:97 CV 131 DDN.
February 7, 2000.
Johnny Phillips, #506058, [COR LD NTC] [PRO SE], JCCC, Jefferson City Correctional Ctr., P.O. Box 900, Jefferson City, MO 65102, for petitioner.
Stephen D. Hawke, 573-751-3825 fax, [COR LD NTC], ATTORNEY GENERAL OF MISSOURI, Assistant Attorney General, 221 W. High Street, P.O. Box 899, Jefferson City, MO 65102-0899, 573-751-3321, FTS 751-3825, for respondent.
MEMORANDUM
Petitioner Johnny Phillips brought this action for a writ of habeas corpus under 28 U.S.C. § 2254. The parties have consented to the exercise of authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Petitioner was convicted by a jury in the Circuit Court of the City of St. Louis, Missouri, of two counts of robbery in the first degree (Counts I and V), attempted robbery in the first degree (Count III), and three counts of armed criminal action (Counts II, IV and VI). He was sentenced to a total of twenty-two years imprisonment. Petitioner moved for post-conviction relief under Missouri Supreme Court Rule 29.15. The motion was denied without an evidentiary hearing. Resp. Exh. C at 11-16. The Missouri Court of Appeals affirmed the convictions, sentences and denial of post-conviction relief. State v. Phillips, 914 S.W.2d 833, 835 (Mo.Ct.App. 1996). Petitioner also filed a motion to recall the mandate. Resp. Exh. G. The Missouri Court of Appeals summarily denied this motion. Resp. Exh. H.
In his original petition and in the amended petition for habeas corpus relief, filed September 10, 1997, petitioner seeks relief in this court on the following grounds:
1. The evidence is insufficient to support his convictions on Counts V and VI for robbery and armed criminal action.
2. His trial counsel rendered ineffective assistance of counsel, because:
a. he failed to move to sever counts;
b. he failed to object to the testimony of witnesses Dennis Conway, Harvey Laux, Anthone Lachenicht and Mathias Hanewinkel;
c. he failed to provide citations to the appropriate provisions in the Constitutions of the United States and the State of Missouri in the motion for a new trial;
d. he failed to continuously object and seek the suppression of certain identification evidence and certain statements made by petitioner, or to include such grounds in the motion for a new trial; and
e. he failed to object to the trial court's mention of parole during the voir dire.
3. Appellate counsel failed to argue grounds for appealing the convictions under Counts I through IV, regarding:
a. the sufficiency of the evidence on those counts;
b. the constitutionality of the identification testimony of witnesses Robert Russell and Michael Bauer;
c. the admissibility of the illegal weapons usage evidence;
d. the admissibility of the .38 caliber revolver; and
e. false assertions by the police that petitioner made incriminating statements.
4. Trial counsel and appellate counsel rendered ineffective assistance of counsel in that there was a conflict of interest as a direct result of a fee dispute.
The evidence offered at trial is described thus in the Missouri Court of Appeals' opinion:
At trial, the state presented evidence that a black male, wearing a black Oakland Raider's jacket robbed the night shift manager of the Quick Trip, at gunpoint, on October 28, 1992 between 4:30 and 6:00 a.m. Employees, who were at the store during the robbery, identified defendant in a line-up. There was proof of an attempted robbery at the Vicker's station, also on October 28, 1992, at 4:40 a.m., by a black male wearing a black Oakland Raider's jacket. The Quick Trip store manager identified defendant in a line-up as the robber. A customer at the Vicker's station testified he was waiting near the cashier window to buy cigarettes, when he saw the robber point a gun at the glass and then fire a round. The customer returned to his car where he was robbed at gunpoint by the same person.Phillips, 914 S.W.2d at 834.
EXHAUSTION OF STATE REMEDIES
For a prisoner to qualify for federal habeas corpus review under 28 U.S.C. § 2254, he must have first fully exhausted all available state remedies for each ground he presents to the federal court: 28 U.S.C. § 2254(b), (c); Coleman v. Thompson, 501 U.S. 722, 731 (1991); Sloan v. Delo, 54 F.3d 1371, 1378 (8th Cir. 1995) cert. denied, 516 U.S. 1056 (1996). Respondent concedes that petitioner has exhausted all available state remedies for his alleged federal habeas corpus grounds, because either he has properly presented his claims to the Missouri state courts or because there is now no available, non-futile state remedy for petitioner to pursue. Coleman, 501 U.S. at 732.
GROUND 1
Petitioner's first claim is that the evidence is insufficient to support his convictions on Counts V and VI for robbery and armed criminal action of a customer outside the Vickers station. In general, the court will grant habeas relief only if the petitioner can show that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). In considering petitioner's claim that the evidence was insufficient to support his convictions, the evidence must be viewed "in the light most favorable to the State, together with all reasonable inferences to be drawn therefrom, and ignore contrary evidence and inferences." State v. Guinan, 665 S.W.2d 325, 327 (Mo. banc),cert. denied, 469 U.S. 873 (1984)
Evidence and eyewitness testimony from the trial record indicates that the evidence was sufficient to support the convictions. During a police line-up, the petitioner was identified by both the employee at Quick Trip, where the robbery and armed criminal action occurred, and the employee at Vickers, where the attempted robbery and armed criminal action occurred, as a black male with a black Raiders jacket. Resp. Exh. A, at 289-91, 427-33. The employee at the Vickers station also described petitioner as having two gold teeth. Id. at 428. A customer at the Vickers station testified that this same black male with a Raiders jacket robbed him. Id. at 455. This same customer later identified petitioner in a photograph. Id. at 492-94. In addition, petitioner admitted to the St. Louis City Police that he was the person responsible for the robberies. Id. at 554. Furthermore, the detective assigned to look at the store videos identified petitioner in the videos. Id. at 503-04.
The evidence of record is such that petitioner has failed to show that no reasonable juror could have convicted him of robbery and armed criminal action.
Ground 1 is without merit.
GROUND 2
Petitioner's second ground for federal habeas relief alleges several instances where his trial counsel rendered ineffective assistance of counsel. To prevail on this point, petitioner must demonstrate that the attorney's performance was so prejudicial that the result of the proceedings would have been different absent the error. Strickland v. Washington, 466 U.S. 668, 687 (1984); Ford v. Armontrout, 916 F.2d 457, 460 (8th Cir. 1990),cert. denied, 499 U.S. 964 (1991). It is generally presumed that counsel rendered adequate assistance. Beans v. Black, 757 F.2d 933, 936 (8th. Cir.), cert. denied, 474 U.S. 979 (1985).
The adequacy of counsel's assistance is determined by an inquiry into whether, in light of all the circumstances, the identified acts or omissions were outside the broad range of competent assistance. Strickland, 466 U.S. at 690. Counsel is given broad discretion in making tactical decisions. Id. at 689.
Petitioner first alleges that (a) his trial counsel failed to move to sever Counts I and II from Counts III, IV, V, and VI. The Missouri Court of Appeals rejected this claim, commenting as follows:
In this case, all six crimes occurred within minutes of each other in close physical proximity. A motion to sever would have been without merit. There was evidence defendant committed all the robberies as part of a plan to pay back money he owed to someone. He approached both cashiers in a similar manner. The crimes are interrelated, and evidence of each provided a complete picture of defendant's scheme. Evidence of Counts I and II would have been admissible in a separate trial on Counts III, IV, V, and VI. Severance would not have prevented the jury's considering evidence of Counts I and II while considering Counts V and VI. Counsel was not ineffective for failing to file a motion which had no merit.Phillips, 914 S.W.2d at 835.
This Court's review of the Missouri Court of Appeals' decision is limited to situations when adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (1994). A state court decision is contrary to clearly established federal law if the state court applies an incorrect legal standard in addressing the petitioner's claim, and a state court decision is unreasonable "only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect." Morris v. Cain, 186 F.3d 581, 584 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 768-69 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997), overruled in Part on other grounds, Gochicoa v. Johnson, 118 F.3d 440 (5th Cir. 1997)).
The Missouri Court of Appeals decision was reasonable and is consistent with Supreme Court precedent. See Petite v. United States, 361 U.S. 529, 530 (1960) ("it is the general policy of the Federal Government `that several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions. . . .'"). The Missouri Court of Appeals' determination that the two robberies arose of a single transaction was based on a reasonable determination of the facts. See 28 U.S.C. § 2254. There was evidence that petitioner told police that he committed the robberies as part of a plan to pay back money he owed to someone. Resp. Exh. A, at 554-55. This claim of ineffective assistance of counsel is without merit.
Petitioner's remaining claims of ineffective assistance of trial counsel,
b. he failed to object to the testimony of witnesses Dennis Conway, Harvey Laux, Anthone Lachenicht and Mathias Hanewinkel;
c. he failed to provide citations to the appropriate provisions in the Constitutions of the United States and the State of Missouri in the motion for a new trial;
d. he failed to continuously object and seek the suppression of certain identification evidence and certain statements made by petitioner, or to include such grounds in the motion for a new trial; and
e. he failed to object to the trial court's mention of parole during the voir dire,
are procedurally barred from review in this Court. A prisoner convicted in the Missouri state courts must present all federal habeas grounds to the state courts, circuit and appellate. Sweet v. Delo, 125 F.3d 1144, 1149-51 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998); see also Coleman, 501 U.S. at 750. Failure to raise a claim in the state courts erects a procedural bar to relief in this Court. Sweet, 125 F.3d at 1149-51. While petitioner raised grounds (b), (c), (d), and (e) in his Rule 29.15 motion, he failed to raise them in his consolidated appeal.
However, petitioner is entitled to federal habeas review, if he can demonstrate sufficient cause for the default and actual prejudice, or if he can demonstrate that failure to review the claim would result in a fundamental miscarriage of justice.Colemen, 501 U.S. at 750. In order to establish cause for procedural default, petitioner must demonstrate that some objective factor external to the defense impeded his efforts to comply with state procedural requirements. Id. at 750-52. Petitioner has not shown legal cause to overcome the default because he has not established any factor external to the defense that impeded his efforts. Therefore, the Court need not consider whether petitioner was prejudiced because he has not established cause. See id. at 750.
Petitioner may also obtain federal habeas review, if he shows that failure to review his grounds for relief would result in a fundamental miscarriage of justice. Id. A fundamental miscarriage of justice would occur, if petitioner was actually innocent.Murray v. Carrier, 477 U.S. 478, 495-96 (1986). The habeas petitioner asserting actual innocence to support his allegations of constitutional error must do so with new, reliable evidence.Schlup v. Delo, 513 U.S. 298, 324 (1995). Petitioner has not presented new and reliable evidence so strong that a court cannot have confidence in the current outcome of the trial. See id. Thus, there is no basis for petitioner to claim that his conviction resulted in a fundamental miscarriage of justice.
Ground 2 is without merit.
GROUND 3
Petitioner's third ground for relief alleges several instances where his appellate counsel rendered ineffective assistance of counsel:
Appellate counsel failed to argue grounds for appealing the convictions under Counts I through IV, regarding:
Counts I-IV charge defendant with robbery in the first degree of the Quik Trip, attempted robbery of the Vickers, and two counts of armed criminal action associated with the robbery and attempted robbery.
a. the sufficiency of the evidence on those counts;
b. the constitutionality of the identification testimony of witnesses Robert Russell and Michael Bauer;
c. the admissibility of the illegal weapons usage evidence;
d. the admissibility of the .38 caliber revolver; and
e. false assertions by the police that petitioner made incriminating statements.
The Missouri Court of Appeals summarily denied petitioner's motion to recall the mandate. Resp. Exh. H. To prevail on his points of ineffective assistance of appellate counsel, petitioner must demonstrate that the attorney's performance fell below an objective standard of reasonableness and that the deficient performance was so prejudicial that the result of the proceedings would have been different. See Strickland, 466 U.S. at 687.
The Court will first address the claim that appellate counsel was ineffective for failing to challenge the identification testimony of Michael Bauer as unconstitutional. Under the Due Process Clause, identification evidence must be suppressed, if it results from procedures that are unnecessarily suggestive and that may lead to an irreparably mistaken identification. Stovall v. Denno, 388 U.S. 293, 301-02 (1967). Such an identification, however, may still be admissible if it is nonetheless reliable.Neil v. Biggers, 409 U.S. 188, 198-99 (1972)
The circuit court denied defendant's motion to suppress Bauer's identification testimony and petitioner's counsel did not pursue this on appeal. The record reflects that Bauer testified that he viewed a police lineup and that he asked to see the participants' teeth. Bauer then testified that he "recognized [petitioner] before [he] saw his teeth and when he opened his mouth [he] was positive." Resp. Exh. A, at 351. The reason the circuit court gave for denying the motion was that "there was no undue suggestion or leading on the part of the police . . . which may have caused this witness or place a presumption in this witness's mind as to who he should or should not pick when he did identification from the lineup." Id.
Bauer wanted to see if the person he had picked out had two gold teeth. Resp. Exh. A, at 350-51.
The Court concludes that there is nothing in the record to suggest that the police were unnecessarily suggestive and that the procedures used were constitutionally adequate. See Stovall, 388 U.S. at 301-02. Therefore, the circuit court's decision was not contrary to, or an unreasonable interpretation of existing federal law. See 28 U.S.C. § 2254. Appellate counsel's behavior did not fall below an objective standard of reasonableness for failing to raise a ground that probably would not have been successful on appeal. See Strickland, 466 U.S. at 688.
The Court will next address the claim that appellate counsel failed to object to false assertions the police made about incriminating statements of defendant. Under federal law, the admissibility of the custodial statements given in response to interrogation depends upon whether the defendant had been advised of his rights, as prescribed by Miranda v. Arizona, 384 U.S. 436 (1966); whether the defendant knowingly and voluntarily waived these rights, North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979), and whether the statements were voluntary.
Defendant made statements to police that he was the one who had committed the robberies and that he did so because he owed somebody money. Resp. Exh. A, at 554-55. The circuit court denied the motion to suppress defendant's statements, explaining:
I am satisfied that the police officer had probable cause to interrogate. The police officer properly saw to that Miranda warnings were given, that full warnings were properly given, that the rights were knowingly and intelligently waived by the defendant and that all question and answer exchange that occurred thereafter was done in the — in accordance with defendant's rights.
Resp. Exh. A, at 46. The Court does not find anything in the record to suggest that the circuit court acted contrary to or made an unreasonable application of existing federal law. See 28 U.S.C. § 2254. Again, appellate counsel's behavior did not fall below an objective standard of reasonableness for failing to raise a ground that probably would not have been successful on appeal. See Strickland, 466 U.S. at 688.
Regarding petitioner's remaining claims of ineffective assistance of appellate counsel, the Court concludes that, even assuming that appellate counsel rendered ineffective assistance, petitioner has not established prejudice, the second prong of theStrickland test. "Prejudice, within the meaning of Strickland, occurs when appellate counsel's deficient performance renders the result of the direct appeal unreliable or fundamentally unfair."Zinzer v. State of Iowa, 60 F.3d 1296, 1299 (8th Cir. 1995). The Court concludes that, even if the remaining evidence in ground 3 had been successfully challenged by appellate counsel, the existing evidence of the crime was still more than adequate to support the convictions. Both victims of the robbery and attempted robbery, Bruce Cunningham and Michael Bauer, employees of Quick Trip and Vickers, respectively, positively identified petitioner in police lineups. See Resp. Exh. A, at 295-97; 429-31. Petitioner admitted to the St. Louis City Police that he was the person responsible for the robberies. Id. at 554. Furthermore, the detective assigned to look at the store videos identified petitioner in the videos. Id. at 503-04.
Therefore, the Court does not need to explore whether appellate counsel made objectively reasonable decisions in the best interest of his client on the remaining claims. In light of the evidence offered at trial, petitioner was not prejudiced by appellate counsel's failure to challenge grounds 3(a), the testimony of Robert Russell in 3(b), 3(c) and 3(d)
Ground 3 is without merit.
GROUND 4
Petitioner's fourth ground for relief alleges ineffective assistance of trial counsel and appellate counsel due to a conflict of interest arising out of a fee dispute between the trial attorney and petitioner.
Petitioner's claim of ineffective assistance of trial counsel due to a conflict of interest is procedurally barred, because he failed to properly present this claim to the Missouri state courts. See Sweet v. Delo, 125 F.3d 1144, 1149-51 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998); Coleman, 501 U.S. at 750. While petitioner alleged several grounds as to why trial counsel allegedly rendered ineffective assistance of counsel in state court, he does not allege a conflict of interest in his motion for post-conviction relief or in his direct appeal. Resp. Exh. C; Resp. Exh. D. A federal court will not hear a petitioner's habeas claim unless the petitioner has fairly presented all federal habeas grounds of relief in the state courts. 28 U.S.C. § 2254(b); Coleman, 501 U.S. at 750. The specific claim of conflict of interest of trial counsel alleged in the habeas petition was never brought before the state courts. Thus, he is procedurally barred as a matter of state law and he has defaulted the claim for purposes of federal habeas relief.Fleiger v. Delo, 16 F.3d 878, 885 (8th Cir.), cert. denied, 513 U.S. 946 (1994).
Moreover, petitioner has neither demonstrated sufficient cause for the default and actual prejudice, nor has he demonstrated that failure to review the claim would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. In order to establish cause for procedural default, petitioner must demonstrate that some objective factor external to the defense impeded his efforts to comply with state procedural requirements.Coleman, 501 U.S. at 750-52. Petitioner argues he failed to raise a conflict of interest claim with his trial counsel because he was unaware of this conflict until after his direct appeal was filed. Petitioner's lack of this knowledge is not legally sufficient cause to excuse his procedural default. See Reid v. United States, 976 F.2d 446, 448 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993); Williams v. White, 68 F.3d 479 (8th Cir. 1995) (Table).
Furthermore, petitioner has not demonstrated that failure to review the claim would result in a fundamental miscarriage of justice. The habeas petitioner asserting actual innocence to support his allegations of constitutional error must do so with new, reliable evidence. Schlup v. Delo, 513 U.S. 298, 324 (1995) Petitioner has not made an assertion of actual innocence. In addition, he has not presented new reliable evidence so strong that a court cannot have confidence in the current outcome of the trial. Id. at 324. Thus, there is no basis for the petitioner to claim that his conviction resulted in a fundamental miscarriage of justice.
Therefore, ground 4 with respect to a conflict of interest of trial counsel is without merit.
Petitioner's allegation of ineffective assistance of appellate counsel due to a conflict of interest is also without merit. Petitioner alleges that the fee dispute with his trial counsel also affected the performance of his appellate counsel in that his trial counsel and his appellate counsel were friends. The relationship between counsel has no bearing on whether there was a conflict of interest between appellate counsel and petitioner. This is because the fee dispute is not related in any way to the relationship between petitioner and his appellate counsel.
Therefore, Ground 4 with respect to ineffective assistance of appellate counsel is also without merit.
The petition of Johnny Phillips for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 will be dismissed without further proceedings. Any pending motions will be denied as moot. An appropriate order is issued herewith.
Signed this 7th day of February, 2000.
ORDER
In accordance with the Memorandum filed herewith,
IT IS HEREBY ORDERED that the petition of Johnny Phillips for a writ of habeas corpus is denied. The action is dismissed with prejudice. Any pending motions are denied as moot.
Signed this 7th day of February, 2000.