Richardson v. Payne

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JEFFERY S. RICHARDSON, )

)

Plaintiff, )

)

v. ) Case No. 4:19-cv-2364-SNLJ

)

STANLEY PAYNE, )

)

Defendant. )

MEMORANDUM AND ORDER

This case is a petition under 28 U.S.C. § 2254 for writ of habeas corpus. Petitioner

Jeffery S. Richardson is an inmate at the Eastern Reception Diagnostic Correctional

Center in Bonne Terre, Missouri. In 2013, Richardson was convicted by a jury on one

count of first-degree assault, in violation of Section 565.050 RSMo, and one count of

armed criminal action, in violation of Section 571.015 RSMo. The trial court sentenced

Richardson to 20 years’ imprisonment on both counts, to run concurrently. The

conviction and sentence were affirmed on direct appeal (Resp. Ex. C), Richardson’s Rule

29.15 motion was denied by the trial court (Resp. Ex. J, pp. 62-70), and the Rule 29.15

denial was affirmed on appeal (Resp. Ex. H).

In his petition before this Court, Richardson raises four grounds for relief: 1)

ineffective assistance of counsel—failing to investigate and present evidence regarding

the side effects of a drug known as “Effexor”; 2) trial error in the refusal to instruct the

jury on self-defense; 3) ineffective assistance of counsel—failing to object to

prosecutorial misconduct; and 4) ineffective assistance of counsel—failing to rehabilitate

the testimony of Officer Stevens.

This Court will deny the petition. Richardson raised the first three grounds for

relief in state court, which were denied on the merits. On those claims, this Court will

defer to the decision of the Missouri Court of Appeals under 28 U.S.C. § 2254(d). On the

fourth ground for relief, it was procedurally defaulted—having not been raised either to

the trial court or the Missouri Court of Appeals—and any blame placed on counsel for

failing to raise it does not excuse the default because the claim, even if it were made, has

no merit.

I. STATEMENT OF EXHIBITS

In support of this memorandum, this Court cites the following exhibits as set out

in the response to show cause, ECF #12.

1. Respondent’s Exhibit A is Richardson’s brief on direct appeal.

2. Respondent’s Exhibit C is a copy of the Missouri Court of Appeals’

decision affirming the conviction and sentence.

3. Respondent’s Exhibit J is a copy of the legal file from Richardson’s

state post-conviction appeal.

4. Respondent’s Exhibit F is Richardson’s brief on post-conviction

appeal.

5. Respondent’s Exhibit G is a copy of the State’s brief on post-

conviction appeal.

6. Respondent’s Exhibit H is a copy of the Missouri Court of Appeals’

decision affirming the denial of post-conviction relief.

II. BACKGROUND

“In a proceeding instituted by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and convincing evidence.” 28

U.S.C. 2254(e). During Richardson’s direct appeal, the Missouri Court of Appeals

summarized the relevant facts and procedural background as follows:

On September 12, 2011, Appellant stopped at a convenience store at

approximately 9:00 p.m. while on his way home. Appellant parked his

mother’s GMC Yukon in front of the store, entered the store and purchased

a six-pack of beer.

While Appellant was inside, Marvin Huntley and his cousin, Ricky Bolden,

arrived at the same store in Bolden’s car. Bolden parked two spaces to the

left of Appellant’s vehicle. Bolden went into the store while Huntley

remained in the passenger seat.

Huntley testified Appellant came out of the store, stared at him briefly, and

then approached him. Huntley stated Appellant introduced himself and

asked Huntley for marijuana. When Huntley responded that he did not

“smoke,” Appellant said something to him about how “[he] just ran from

the police” and asked him a strange question. Huntley testified he did not

know how to respond so he asked Appellant for a lighter. Appellant,

however, testified he was walking to his car after leaving the store when

Huntley called him over and asked for a lighter.

Appellant then walked back to the Yukon, put his beer inside and retrieved

his lighter for Huntley. Appellant handed the lighter to Huntley, who lit his

cigarette and returned the lighter to Appellant. Appellant returned to his

vehicle. Appellant testified he sat in his vehicle for a minute because he

was going to light a cigarette.

At this time, Bolden came back to the car and asked Huntley for some

change to buy Huntley cigarettes. Huntley told Bolden about his interaction

with Appellant and pointed Appellant out to Bolden. Bolden told Huntley

to “forget that white man” and walked back into the store.

Appellant testified he saw Huntley turn toward him and heard Huntley say

something that he did not understand. Appellant thought Huntley had asked

for help changing a tire or “something.” Appellant testified he got out of his

vehicle and walked over to Bolden’s car while looking at the tires. At the

same time, Huntley got out of the car to tell Bolden to “come on” so they

could leave.

Appellant testified he followed Huntley around the car, looking at the tires

of Bolden’s car, because he thought Huntley was leading him around the

front of the car. Appellant testified when he saw none of the tires were flat,

he became confused about where Huntley was going. Appellant asked

Huntley what Huntley had said to him. Huntley told Appellant he did not

say anything, or “no bull crap,” told Appellant to leave him alone and

turned away from Appellant.

Huntley testified Appellant kept approaching him so he turned around to

face Appellant and backed away from Appellant. Appellant kept asking

Huntley what he had said. Huntley testified it was an awkward situation, he

was uncomfortable, and he felt that Appellant would not leave him alone.

Huntley testified Appellant kept coming towards him and Huntley thought

“something” was going to happen so he defended himself by slapping

Appellant.

Appellant testified Huntley hit him with his left hand and Appellant saw a

bright flash and Huntley’s right hand go down. Appellant testified he

thought Huntley was going for a weapon and he “went into survival mode”

because he felt his life was in danger. Appellant testified he panicked

because he did not know what Bolden, who was inside the store, was going

to do and “[t]his guy went crazy on me for no reason, [I was] trying to help

him out.” Appellant immediately drew his gun from his pocket and fired it.

Appellant testified that after the first shot, Huntley raised his arms up and it

seemed like Huntley started to lunge at him again so he fired a second shot.

Appellant testified he actually never saw Huntley with a weapon or a gun.

Rather, Appellant saw a bright light, and Huntley’s hand go down and

Appellant “thought he was going for a weapon.” Appellant testified he

believed Huntley was armed “[b]ecause why would somebody attack you

right out in front of the store unless -- I just panicked, you know. I figured I

was in big trouble and I thought he was just going to cause me real

damage.”

The entire incident was recorded on the convenience store’s security

camera and was admitted at trial. The video shows that in the seconds after

Huntley struck Appellant and Appellant grabbed his gun, Huntley took

several steps backward before coming to a stop with his arms to his sides

while Appellant took several steps toward Huntley with his gun pointed at

Huntley. The video shows Appellant firing one shot while Huntley was

standing and the second shot as Huntley fell backward to the ground and as

Appellant began to turn and walk away.

After shooting Huntley, Appellant immediately got into the Yukon and

drove to his mother’s home, where he parked the vehicle behind a pickup

truck in the driveway. Appellant changed his pants and shoes. Officer John

Stevens, who received a broadcast about the shooting and a description of

the Yukon, spotted the Yukon parked in the driveway of Appellant’s

mother’s house and made contact with Appellant. When Stevens inquired

about the last person to drive the vehicle, Appellant stated his friend

“Chris” was the last person to drive the car but could not provide any

additional information about Chris. Another officer responded to the home

and recognized Appellant from the video surveillance he had reviewed

earlier at the store. The officer arrested Appellant and found Appellant’s

shorts, a wallet with a debit card matching the card used at the convenience

store, and a six-pack of beer in the bed of the pickup truck.

When police arrived at the convenience store, Huntley was unresponsive.

Huntley spent several weeks in the hospital recovering from his injuries and

underwent surgery for the injuries to his abdomen and hip. Huntley, Bolden

and the store clerk positively identified Appellant in a photo lineup as the

shooter.

The State charged Appellant with first-degree assault and armed criminal

action. The jury found Appellant guilty on both charges. The trial court

sentenced Appellant to two concurrent terms of twenty years of

imprisonment. This appeal follows.

On appeal, Appellant argues the trial court erred in refusing to submit a

self-defense instruction proffered by the defense because there was

substantial evidence supporting its submission.

(Resp. Ex. C, pp. 2-5).

III. ANALYSIS

A. Trial Counsel was not Ineffective for Failing to Investigate Certain Medical

Evidence Supporting an Alleged Mental Health Defense. This Court Defers to

the Missouri Court of Appeals’ Decision on This Issue (Responds to the First

Ground for Relief).

In his first ground for relief, Richardson argues his “[c]ounsel did not investigate

medication evidence” that would have supported a defense that Richardson suffered

“severe withdrawal effects” from a drug known as “Effexor,” which allegedly caused him

to suffer “paranoid and [a] distorted perception” when he shot Huntley. Richardson says

“[t]he medication evidence would have supported [his] claim of self-defense.”

Richardson raised this claim during his state post-conviction appeal (Resp. Ex. F, p. 12),

and the Missouri Court of Appeals denied it. (Resp. Ex. H, pp. 3-7). Claims that have

been previously adjudicated on the merits in state court “shall not be granted” relief

unless the state court’s decision contradicted or unreasonably applied clearly-established

federal law or resulted in an unreasonable determination of the facts. 28 U.S.C. §

2254(d).

The Missouri Court of Appeals applied the proper standard for evaluating whether

counsel was ineffective. (Resp. Ex. H, p. 3); see Strickland v. Washington, 466 U.S. 668

(1984). To succeed under the Strickland ineffectiveness standard, a petitioner must show

that counsel’s conduct fell below reasonable professional standards and “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. There is “a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistances.” Id.

at 689.

Richardson failed to show counsel’s conduct was unreasonable or that he was

prejudiced by counsel’s actions. The Missouri Court of Appeals gave a detailed

explanation why there was no misconduct by trial counsel nor resulting prejudice:

For his first point on appeal, movant alleges the motion court clearly erred

in denying relief on his claim that trial counsel was ineffective for failing to

investigate and present evidence at trial of movant’s mental-health history

and the side effects he was experiencing from his abrupt withdrawal from a

prescription medication. The motion court held an evidentiary hearing, at

which both counsel and movant testified. The motion court denied

movant’s claim, finding that counsel’s decision not to present such

evidence was clearly a reasonable strategic decision.

Counsel has wide discretion in determining what strategy to use in

defending his client. Shelton v. State, 440 S.W.3d 464, 469 (Mo. App. E.D.

2014). Reasonable choices of trial strategy, no matter how ill-fated they

appear in hindsight, cannot serve as a basis for an ineffective-assistance-of-

counsel claim. Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc

2005). To prevail on his claim, movant must overcome the strong

presumption that the challenged action was reasonable and effective trial

strategy. Shelton, 440 S.W.3d at 470. In reviewing trial strategy, we

evaluate the conduct of counsel from his perspective at the time of the

conduct. State v. Light, 835 S.W.2d 933, 940 (Mo. App. E.D.1992).

Trial counsel – a seasoned attorney, with thirty years’ experience, who has

tried well over one hundred jury trials, and whose practice consists of

largely criminal-defense work – knew he had a strategic choice between a

defense based on defendant’s mental health and one based on self-defense.

He met with the movant, and talked with him at great length in the months

leading up to the trial. The two discussed the evidence, and watched the

surveillance video of the incident several times. They also discussed

whether to plead guilty or proceed to trial. And they discussed potential

defenses. Counsel knew that movant had a mental-health diagnosis, and

that he had stopped taking his prescription medication. Counsel and movant

talked at great length about how these issues might affect movant’s trial.

Counsel reviewed movant’s medical records and talked with movant’s

psychiatrist about the effects of movant’s medications. Counsel also spoke

with his trial expert about the possibility of using movant’s mental

condition as a defense. Counsel considered the possibility that defendant

was not competent to stand trial and that he was not guilty by reason of

insanity, but ultimately concluded that those possibilities did not apply to

movant.

In the end, movant decided to proceed to trial, and counsel chose a self-

defense strategy in accordance with movant’s stated reason for shooting the

victim. Counsel testified that “from the get-go,” movant consistently

maintained that the victim was armed and that he had shot the victim in

self-defense. Movant testified at the evidentiary hearing that he did not

disagree with the self-defense defense. Counsel believed that presenting

evidence of a mental condition would have hurt that defense. He believed

that if he presented such evidence, the jury would view the surveillance

video and see movant as one who overreacted to a situation, and not as one

who was acting out of self-defense. Counsel wanted to present movant “as

clean as possible,” with regard to movant's encounter with the victim.

Indeed, evidence of movant’s mental health and his violent behavior would

have contradicted the strategy of presenting movant as a law-abiding man

who acted out of self-defense.

Counsel investigated several different possible strategies for movant’s

defense. Consequently, we will rarely second-guess counsel’s actual

choice. Middleton v. State, 103 S.W.3d 726, 736 (Mo. banc 2003). “Trial

counsel is normally in the best position to assess the trade-offs involved in

selecting particular defenses.” Id. Strategic choices made after a thorough

investigation are “virtually unchallengeable.” Id. at 736-37. Movant’s

contention that trial counsel failed to thoroughly investigate is belied by the

record. Given the facts and evidence before him, counsel made a reasonable

choice of defenses. “Counsel will not be found ineffective for choosing to

pursue one reasonable trial strategy to the exclusion of another.” McFadden

v. State, 553 S.W.3d 289, 309 (Mo. banc 2018).

We lastly address a few additional flaws in movant’s argument. Movant

alleged in his motion that he had abruptly stopped taking his medications

several days before the shooting. He persists in this assertion on appeal.

According to trial counsel, however, movant told him that he had not taken

the medication for quite some time, maybe even over a year prior to the

shooting. The motion court was free to believe trial counsel and to

disbelieve movant. Just as the motion court was free to disbelieve movant’s

testimony that at the time of the shooting, he was suffering from

withdrawal effects, such as hostility, aggressiveness, and paranoia. Gold v.

State, 341 S.W.3d 177, 180 (Mo. App. S.D. 2011). Even if believed,

movant has not shown how such evidence would have changed the

outcome of his trial. Movant attributes his action in shooting victim to

withdrawals from abruptly stopping his medication. But he admitted at the

sentencing hearing that he was violent and would occasionally go into a

rage and “smash stuff,” even before he started the medication, and that he

continued to drink and throw fits even while taking the medication. In

short, movant admitted he was violent both while he was on the medication

and when he was not. Movant has not shown how the desired evidence

would have provided a viable defense.

Movant also contends a reasonable probability exists that but for counsel’s

decision, the jury would have acquitted him of first-degree assault and

convicted him of the lesser offense of second-degree assault premised on

sudden passion, but that defense arises out of provocation and is an

objective standard, not altered by a defendant’s mental condition. Clark v.

State, 30 S.W.3d 879, 883 (Mo. App. S.D. 2000). Trial counsel cannot be

ineffective for failing to present evidence that would not have supported the

defense. See Davis v. State, 486 S.W.3d 898, 913 (Mo. banc 2016).

Lastly, movant contends that the trial court would have imposed a lesser

sentence had counsel presented evidence of his mental condition and his

withdrawal symptoms. But movant presented this information to the court

at the sentencing hearing. He told the court about his long battle with

alcoholism. He told the court about his prescription medications. And he

called several character witnesses to testify about his struggles. The

proclaimed, desired information was before the court, for the court’s

consideration as mitigating circumstances. Movant has thus failed to show

that but for trial counsel’s decision, he would have received a lesser

sentence.

Defendant bore the burden of proving this claim by the preponderance of

evidence. Rule 29.15(i). He failed to do so. Counsel made a reasonable

choice. And it is not ineffective assistance of counsel to pursue one

reasonable trial strategy to the exclusion of another reasonable trial

strategy. Worthington, 166 S.W.3d at 573. After full review of the record,

we discern no mistake. The motion court did not err in denying this claim.

We deny this point.

(Resp. Ex. H, pp. 3-7).

Richardson accuses the Missouri Court of Appeals’ of lying about the facts—of

“playing a shell-game [and] using wordplay to justify” further violation of his

constitutional rights. Richardson says the court’s factual recitals are “absurd and

baseless,” and he points to his own appendix of “evidence” that he says contradicts

everything the appellate court relied on. As mentioned above, an “unreasonable

determination of the facts” may support granting a writ of habeas corpus. 28 U.S.C. §

2254(d). But, here, no such unreasonableness can be found.

For example, the Missouri Court of Appeals explained that “[c]ounsel [] spoke

with his trial expert about the possibility of using movant’s mental condition as a

defense,” but “[i]n the end … chose a self-defense strategy in accordance with movant’s

stated reason for shooting the victim.” (Resp. Ex. H, pp. 4-5). Richardson takes issue with

this characterization, saying “[c]ounsel did not investigate medication evidence.” In

support, Richardson cites to the post-conviction trial transcript; but, that transcript

actually shows the opposite of his allegations. Counsel testified that he “did speak to

someone, Dr. Rao, [about the] medication” though he couldn’t specifically “recall

speaking to more than one doctor.” (emphasis added). He went on to explain that “Dr.

Rabun testified for us, and it would surprise me if I didn't at least mention Jeffery's

condition to Dr. Rabun as a possibility of a defense, but, again, that was not a defense

that I think was available to us.” (Resp. Ex. K, p. 13). Contrary to Richardson’s

allegations, then, the record does not show that counsel altogether failed to “investigate

medical evidence”—he simply didn’t see it as viable.

As another example, the Missouri Court of Appeals explained that “[Richardson]

told [his counsel] that he had not taken the medication for quite some time, maybe even

over a year prior to the shooting.” (Resp. Ex. H, p. 6). Thus, counsel would not have had

much reason to rely on a defense predicated on withdrawal symptoms. But, Richardson

counteracts this finding by pointing, again, to the post-conviction trial transcript, in which

he testified that he actually stopped taking the medication “about two days” before the

shooting occurred. (Resp. Ex. K, p. 26). Even so, this cited-to testimony does not directly

refute the appellate court’s findings—what Richardson said during a post-conviction

evidentiary hearing, and what he told his counsel in the lead up to trial, are two separate

matters. “A fair assessment of attorney performance requires … [the court] to evaluate

the conduct from counsel’s perspective at the time.” Davis v. U.S., 858 F.3d 529, 534 (8th

Cir. 2017) (emphasis in original). Richardson points to no record that refutes the

appellate court’s finding that he told his counsel something different than what he

testified to before the trial court on his motion for post-conviction relief. Regardless, even

assuming counsel was told before trial that Richardson stopped taking his medication just

days before the shooting, counsel made clear that he still would not have seen it as a

viable strategy:

Q. As you sit here today would you have done anything different with

regard to the defense of—that is being suggested here that Mr. Richardson's

withdrawal from the Effexor, the anxiety medication, would have been a

legitimate defense in this case?

A. No, that was not a defense in my mind in this case.

(Resp. Ex. K, p. 20). When asked why counsel did not believe the medication

withdrawal defense was viable, he explained that it would have undercut the self-

defense angle that was pursued instead:

Q. So you just said earlier that you did some investigation, that you would

feel compelled to do an investigation with these types of facts. What sort of

investigation did you do?

A. A lot of this is going on my memory. You know, I had in my notes

talking about calling Dr. Rao, I believe, who is his mental health

professional, reviewing the mental health notes. We didn't actually order a

psychiatric exam, as I recall. I don't think it was warranted in this case. You

know, here is the way I go through it. Ultimately, I think, you have to make

a decision when it -- when there is a self-defense case, and Jeffery from the

get-go said this was self-defense, I believe that the guy was armed and I

fired my weapon accordingly. Okay. In my mind there is -- strategy is do

you go down the road of mental health problems that perhaps his intent was

negated in some way by whatever mental health issues he was suffering

from or self-defense. To my way of thinking that's kind of an either or

decision because I think if you go down the road of self-defense then you

are not saying I shot him because I'm crazy or because I had a mental health

issue.

Q. So your feeling at the time was that those things were incongruous with

each other, contradicted each other essentially?

A. Right. I think if you are going to go self-defense, you go self-defense all

the way. You don't say, I shot you because I was suffering from mental

disease or defect at the time or that my mental condition somehow negates

my intent in the case.

(Resp. Ex. K, pp. 9-10).

This Court has carefully reviewed the record upon these examples and others; yet,

nothing supports the view that the Missouri Court of Appeals made an “unreasonable

determination of the facts.” 28 U.S.C. § 2254(d). As it turns out, the self-defense strategy

didn’t work, and now Richardson wants to say his counsel erred by not picking a

different strategy. Of course, counsel is entitled to “substantial deference” in his or her

strategic decision-making, Premo v. Moore, 562 U.S. 115, 126 (2011), and there is no

promise of “perfect advocacy.” Maryland v. Kulbicki, 126 S.Ct. 2, 5 (2015). Perhaps

perceiving this deferential hurdle, Richardson seeks to retool the underlying facts to

exhibit an incompetency on his counsel’s part that simply isn’t supported by the record.

The Missouri Court of Appeals adequately explained why counsel chose not to pursue a

mental health defense predicated on medication withdrawal and, wise or unwise in

retrospect, this Court will not disturb that decision here.

B. The Trial Court did not Err in Refusing to Give a Jury Instruction on Self-

Defense. This Court Defers to the Missouri Court of Appeals’ Decision on

This Issue (Responds to the Second Ground for Relief).

In his second ground for relief, Richardson argues the “trial court erred in refusing

[to give a] self-defense instruction.” Richardson says “Huntley struck [him] in the head

inprovoked (sic),” which he argues justified his shooting of Huntley. Richardson properly

raised this claim during his direct appeal, see Shockley v. State, 579 S.W.3d 881, 900

(Mo. banc. 2019) (“trial error [] is outside the scope of [Rule 29.15] postconviction relief

proceedings”), and the Missouri Court of Appeals denied it. (Resp. Ex. A, p. 16; Resp.

Ex. C, pp. 5-9). Claims that have been previously adjudicated on the merits in state court

“shall not be granted” relief unless the state court’s decision contradicted or unreasonably

applied clearly-established federal law or resulted in an unreasonable determination of

the facts. 28 U.S.C. § 2254(d).

A trial court is “required to give an instruction on self-defense [when the

defendant] (1) was not the initial aggressor, and (2) reasonably believed the use of deadly

force was necessary to protect himself from death, serious physical injury, or a forcible

felony.” State v. Barnett, 577 S.W.3d 124, 128 (Mo. banc. 2019) (citing § 563.031,

RSMo). The Missouri Court of Appeals rejected a self-defense instruction because

Richardson failed to satisfy the second prong:

Viewing the evidence in the light most favorable to Appellant, there was

not substantial evidence admitted at trial that could support a finding that

Appellant had reasonable cause to believe it was necessary to use deadly

force against Huntley to save himself from immediate danger of serious

bodily injury or death. There is no evidence Appellant saw anything on

Huntley’s person or in his hand before Appellant fired two shots at

Huntley. The testimony was only that Appellant saw a flash and saw

Huntley reach down with one of his hands. While Appellant testified he

believed that Huntley was reaching for a gun, he stated this belief was

based upon Appellant striking him with his hand because “why would

somebody attack you right out in front of the store” and he “figured” he

was in big trouble and that Huntley was going to cause him “real damage.”

This testimony does not support a finding there was a real or apparently

real necessity for Appellant to use deadly force against Huntley. A single

strike to the face does not reasonably lead to the conclusion that a person is

armed and that one is in immediate danger of serious bodily injury or death,

such that it would justify Appellant’s response, which was to immediately

draw and fire a deadly weapon. Nor does Appellant’s testimony that he

fired a second shot after Huntley appeared to raise his arms and lunge at

Appellant support a self-defense instruction, as raising the arms and

lunging does not, by itself, present a real or apparently real necessity to kill

in order to save oneself from immediate danger of serious bodily injury or

death.

Finally, there was no substantial evidence presented at trial to support the

fourth requirement of a self-defense instruction, that being whether there

was an attempt by Appellant to do all within his power consistent with his

personal safety to avoid the danger and the need to take a life. Here, upon

being struck in the face once by Huntley, Appellant instantly drew his

weapon and fired two shots at Huntley. There is no evidence that Appellant

made any attempt to avoid the danger but instead immediately responded

with deadly force.

Appellant’s point on appeal is denied.

(Resp. Ex. C, pp. 6-9).

Richardson argues “self-defense is for the jury to decide,” and accuses the state

courts of error in withholding from the jury a self-defense instruction under its own

interpretation of the facts. But, of course, “[w]hether the defendant has produced the

quantum of evidence necessary to support the submission of a self-defense instruction is

a question of law for the trial court.” Fisher v. State, 359 S.W.3d 113, 119 (Mo. App.

W.D. 2011) (citing State v. Nunn, 697 S.W.2d 244, 246 (Mo. App. E.D. 1985)). Self-

defense only becomes an “an issue for the fact-finder when there is conflicting evidence

or different inferences could be reasonably drawn from the evidence.” State v. Jones, 553

S.W.3d 909, 914 (Mo. App. S.D. 2018). With the courts’ initial gatekeeping function in

mind, the question here turns on whether the state courts’ refusal to give a self-defense

instruction as a matter of law violated a federal protection—namely, Richardson’s rights

under the Due Process Clause of the Fifth and Fourteenth Amendments. See Woods v.

Solem, 891 F.2d 196, 199 (8th Cir. 1989) (discussing when the refusal to issue a self-

defense instruction violates the U.S. Constitution).

Here, the Court finds no error in the Missouri Court of Appeals’ conclusion that “a

single strike to the face” does not warrant the use of deadly force, such that the self-

defense argument simply failed as a matter of law upon the elements. (Resp. Ex. C, p. 8).

Given its irreversible nature, deadly force is not justified “in response to fear of being

grabbed or even punched,” nor is it justified to “repel a simple assault and battery.” State

v. Bruner, 541 S.W.3d 529, 538 (Mo. banc. 2018). Yet, that is exactly what happened

here. The Missouri Court of Appeals aptly sums it up: “[a] single strike to the face does

not reasonably lead to the conclusion that a person is armed and that one is in immediate

danger of serious bodily injury or death, such that it would justify Appellant’s response,

which was to immediately draw and fire a deadly weapon.” (Resp. Ex. C, p. 8). This is

not a case where Richardson’s life was verbally threatened beforehand, putting him on

heightened alert, nor in the aftermath of the battery did Richardson ever see a gun—or

something that appeared to be a gun—such that instinct might dictate an escalation in

force. See Barnett, 577 S.W.3d at 129 (self-defense instruction warranted where victim,

the aggressor, threatened defendant’s life—telling him he was “going to die”—and

defendant, engaged in a physical altercation, saw what he believed was a gun coming

towards his face). Accordingly, because the facts did not warrant a jury submission on the

issue of self-defense, there is no due process violation for which to merit disturbing the

conclusions of the Missouri Court of Appeals. See Crump v. Caspari, 116 F.3d 326, 327

(8th Cir. 1997) (refusal to give self-defense instruction did not violate due process where

instruction was not warranted under the facts). Richardson’s second ground for relief is

denied.

C. The Trial Court did not Err in Failing to Object to Prosecutorial Misconduct.

This Court Defers to the Missouri Court of Appeals’ Decision on This Issue

(Responds to the Third Ground for Relief).

In his third ground for relief, Richardson argues his trial counsel was ineffective

“due to failure to object to prosecutorial misconduct which caused prejudice and judicial

bias.” Specifically, “[p]rosecution inserted intent into defendant’s actions, stating that Mr.

Richardson wanted to ‘put down’ Mr. Huntley.”1 Richardson properly raised this claim

during his post-conviction appeal, and the Missouri Court of Appeals denied it. (Resp.

Ex. F, p. 12; Resp. Ex. H, pp. 7-10). Claims that have been previously adjudicated on the

merits in state court “shall not be granted” relief unless the state court’s decision

contradicted or unreasonably applied clearly-established federal law or resulted in an

unreasonable determination of the facts. 28 U.S.C. § 2254(d).

The Missouri Court of Appeals rejected Richardson’s prosecutorial misconduct

argument because the prosecutor’s characterization—that Richardson “put down”

Huntley—was supported by the evidence. Moreover, even if the characterization was

objectionable, the decision not to object is generally a strategic one and there was no

showing that this strategy, even if ill-advised, ultimately tainted the trial:

For his second point, movant alleges the motion court erred in denying

relief on his claim that trial counsel was ineffective for failing to object to

the prosecutor’s statement in closing argument that movant “advanced” on

victim to “put him down.” The motion court denied this claim without an

evidentiary hearing, finding that the complained-of statement was at the

very beginning of the State’s argument, that the statement was a reasonable

inference based on evidence at the trial, and that the statement could not

have had a decisive effect on the outcome of movant’s trial. We discern no

mistake. Read in context, the prosecutor was imploring the jury to view the

evidence, including the surveillance tape, and his statement is supported by

that evidence.

“Ineffective assistance of counsel is rarely found in cases where trial

counsel has failed to object.” Murphy v. State, 512 S.W.3d 125, 130 (Mo.

App. E.D. 2017). “Trial counsel is granted vast latitude and judgment about

1 Richardson also tangentially suggests “judicial bias” in the trial court’s reference to the

shooting as an “execution.” This claim, if it is made separately, was not presented to the state

courts and is, therefore, procedurally defaulted. See Kennedy v. Kemna, 666 F.3d 472, 480

(8th Cir. 2012) (“A claim is procedurally defaulted if a habeas petitioner failed to raise it in

state proceedings.”).

whether or when to make objections.” Greer v. State, 406 S.W.3d 100, 105

(Mo. App. E.D. 2013). To establish ineffective assistance of counsel based

on counsel’s failure to object during closing argument, movant must show

that his counsel’s objections would have been upheld if made and that the

failure to object resulted in a substantial deprivation of his right to a fair

trial. Glass v. State, 227 S.W.3d 463, 473 (Mo. banc 2007). Failure to make

a non-meritorious objection is not ineffective. Id. Counsel’s failure to

object during closing argument is generally not error, but is a function of

trial strategy. Anderson v. State, 196 S.W.3d 28, 38 (Mo. banc 2006). It is

well-recognized that even seasoned trial attorneys will often times not

object to otherwise improper questions or arguments for strategic purposes

because “it is feared that frequent objections irritate the jury and highlight

the statements complained of, resulting in more harm than good.” Barton v.

State, 432 S.W.3d 741, 754 (Mo. banc 2014); Marshall v. State, 567

S.W.3d 283, 293 (Mo. App. E.D. 2019). As such, counsel’s failure to object

is presumptively trial strategy and will not support an ineffective assistance

of counsel claim unless movant shows otherwise. Barnes v. State, 334

S.W.3d 717, 723 (Mo. App. E.D. 2011).

Trial counsel would not have been successful had he objected to the

prosecutor’s comment. “A prosecutor is allowed to argue the evidence and

all reasonable inferences from the evidence during closing arguments.”

State v. Brown, 337 S.W.3d 12, 14 (Mo. banc 2011). A prosecutor may

characterize a defendant and his criminal conduct as long as the evidence

supports such a characterization. State v. Simmons, 944 S.W.2d 165, 182

(Mo. banc 1997). And the evidence here amply supports the prosecutor’s

comment.

That movant advanced on the victim is supported by the victim’s testimony

that movant kept approaching him, kept walking towards him, and kept

bothering him. The testimony of the victim, an eyewitness, and the

surveillance tape show that movant first approached the victim while the

victim sat in his car. Movant then left, and returned to his car. Victim exited

his car and walked across the parking lot towards the convenience store, in

order to get his cousin, who was inside the store, because victim did not

like the situation. As the victim exited his car, movant also exited his car.

As movant walked toward the door of the store, he kept watching over his

shoulder. Movant approached the victim again, coming into “close”

proximity of the victim. Victim turned and faced the movant, and told him

to leave him alone. Victim backed up from movant, but the movant still

walked toward the victim. The victim put his hand out, but movant kept

walking towards the victim. The victim then swatted at movant, and

continued to back up, ultimately coming to a stop, directly facing the

movant. Movant kept walking towards the victim, then drew his gun and

shot the victim.

That victim was “put down” by movant is supported by the victim’s own

testimony that he fell after getting shot. The surveillance video shows

victim falling backwards when first shot. And the store clerk testified that

he heard gun shots and then saw the victim “down.”

Even if counsel should have objected, given the evidence of movant’s guilt,

movant makes no showing or reasonable argument that he was deprived of

a fair trial or that the statement had a decisive effect on the outcome of the

trial.

After full review of the record, we discern no mistake. The motion court

did not err in denying this claim. We deny this point.

(Resp. Ex. H, pp. 7-10).

At this stage, Richardson has done little more than repeat the points on appeal

from his post-conviction briefing. The only real addition he has made is to over-

emphasize the meaning of the preposition “to.” Richardson says the prosecutor erred in

using the phrase “to put down” in characterizing Richardson’s attack on Huntley.

Richardson says the prosecutor “used the word ‘to’ [in] speculating as to [the] motive [of

Richardson] and implying malicious intent.” Whatever one might attribute to the rather

innocuous word “to,” it was not actually spoken by the prosecutor—Richardson

mischaracterizes the record. To be sure, the prosecutor, in closing, actually said:

Today is the day that you have to go back there and do justice for Marvin

Huntley. Marvin was shot, was put down by the defendant on

September 12, 2011 here in the City of St. Louis. Why would somebody

attack him in the gas station lot? We don't know. We don't know. But he

did, because you heard from Marvin, you heard from Ricky, you heard

from Markesha, you heard from David, you heard from the police officers

and you saw the video. You know what happened after all of that evidence.

(Resp. Ex. L, pp. 675-676 (emphasis added)). As the Missouri Court of Appeals found,

the evidence supports the characterization that Richardson, by shooting Huntley, “put

[him] down” when he fell backwards as a result. This Court finds nothing about the

Missouri Court of Appeals’ decision contrary to clearly-established federal law or based

on an unreasonable determination of the facts, see 28 U.S.C. § 2254(d). Accordingly, this

Court will defer to the Missouri Court of Appeals’ decision on this issue and denies

Richardson’s third ground for relief.

D. Richardson’s Fourth Ground for Relief is Procedurally Defaulted.

In his fourth ground for relief, Richardson argues his trial counsel was ineffective

“due to failure to rehabilitate Officer Stevens’ testimony.” Specifically, he claims that the

prosecutor had texted Stevens before giving testimony “telling him to change it.”

Looking at the trial transcript pages that Richardson cites in support, the prosecutor had

apparently texted Stevens notifying him that his prior testimony would not actually match

up to the photographs in the prosecutor’s possession:

Q. Do you recognize those photographs?

[Stevens]. Yes.

Q. Do you recognize what's depicted in the photographs?

A. Looks like the front of the house.

Q. And the interior of the house?

A. Uh-huh.

Q. Would that appear to be correct, a picture of the front of the house? If

you know, is that a picture of the front of the house and then a picture from

the front inside the house? Look correct to you?

A. Yeah, I guess.

Q. Do you recall previously testifying in this matter?

A. Yes.

Q. At that time you said you saw Mr. Richardson go out the back door of

that house from where you were standing in the front.

A. Seems like he went to the rear of the house, so I assume he went out the

back.

Q. In fact, you had testified under oath that you did see him go through the

house through the back door, correct?

A. Yes, sir.

Q. Were you since notified by the prosecuting attorney of these

photographs?

A. I'm sorry?

Q. Subsequent to your testimony, did the prosecuting -- did you have a

chance to talk to the prosecuting attorney, or did you get a text message

from her or whatnot about these photographs?

A. Yes.

Q. So she notified you that those photographs actually belie the fact that

you can't really see through that house, can you?

MS. BOSTON: Objection, argumentative.

THE COURT: Sustained.

(Resp. Ex. L, pp. 534-535). This Court can only assume what Richardson is really getting

at is that he wanted his trial counsel to impeach—not rehabilitate—Officer Stevens, a

witness hostile to Richardson, who purportedly lied about what transpired at

Richardson’s house after the shooting. Based on the transcript, that is exactly what trial

counsel attempted to do—this Court sees no error on counsel’s part based on

Richardson’s claim.

In any event, Richardson did not actually bring this claim to the attention of the

state courts. He began to do so, in a pro se motion, but later abandoned it when counsel

wrote an amended motion on his behalf that did not include any mention of impeaching

(or rehabilitating) Stevens. (Compare Resp. Ex. J, p. 12; with Resp. Ex. J, pp. 22-40). The

simple fact is, neither the trial court nor the Missouri Court of Appeals considered this

argument—it being abandoned through the filing of the amended motion. (Resp. Ex. J,

pp. 51-54; Resp. Ex. H). Thus, this claim is procedurally defaulted. See Sweet v. Delo,

125 F.3d 1144, 1149 (8th Cir. 1997) (“[F]ailing to present [a claim] to the Missouri

courts at any stage of [petitioner’s] direct appeal or his post-conviction proceedings”

renders it procedurally defaulted). Richardson attempted to bypass the procedural default

by arguing it was his counsel’s fault for not raising this claim in the amended motion;

but, as this Court explained above, there was no legal basis for raising it in the first place.

“A procedurally defaulted claim must be ‘substantial’ for the default to be excused—that

is, the claim must have “some merit.’” Thomas v. Payne, 960 F.3d 465, 474 (8th Cir.

2020) (quoting Martinez v. Ryan, 566 U.S. 1, 14 (2012)). Having shown no merit for this

particular claim in his briefing to this Court, Richardson’s fourth ground for relief is

denied.

IV. CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that petitioner Jeffery S. Richardson’s petition for a

writ of habeas corpus (ECF #1) is DENIED. This Court will not issue a certificate of

appealability. Judgment to follow.

So ordered this 3rd day of September 2020.

STEPHEN N. LIMBAUGH, JR.

SENIOR UNITED STATES DISTRICT JUDGE

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