# Richardson v. Payne

> District Court, E.D. Missouri · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10233676

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10233676

## How later opinions describe it (automated extraction)

- discussing when the refusal to issue a self- defense instruction violates the U.S. Constitution

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10233676. Public record. Not legal advice.