Pettey v. Pash

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CALVIN D. PETTEY, )

)

Petitioner, )

)

v. ) No. 4:18-cv-00167-JAR

)

RONDA PASH, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Calvin D. Pettey’s Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The Government has responded (Doc. 16) and

Petitioner has replied. (Doc. 28). For the following reasons, Petitioner’s Section 2254 petition is

DENIED and this action is DISMISSED with prejudice.

I. INTRODUCTION AND BACKGROUND

On June 20, 2012, a jury found Petitioner guilty of first-degree murder, and on August

27, 2012, Petitioner was sentenced to life in prison without the possibility of parole. (Doc. 1 at

2). Petitioner filed a direct appeal raising the following claim: “The trial court abused its

discretion in denying defense counsel’s request for mistrial when the trial court instructed the

jury on punishment.” (Doc. 16-3 at 12). The Missouri Court of Appeals for the Eastern District,

finding no error, affirmed the judgment. (Doc. 16-5). The court summarized the pertinent facts

from Petitioner’s trial as follows:

In January 2010, [Petitioner] reconnected with Rebecca Kirk, his former

high school girlfriend, and in February 2010, they began a sexual relationship. At

the time, [Petitioner] was engaged to Sandra Fugate (Victim), and Ms. Kirk was

married to Harold Kirk. [Petitioner] informed Ms. Kirk about his engagement and

confided that he was “trying to find a way out of getting married.” In March 2010,

Ms. and Mr. Kirk separated, and Ms. Kirk moved in with her mother.

While Ms. Kirk was living with her mother, [Petitioner] told her that he

needed a .22 caliber rifle. Ms. Kirk informed him that her husband owned one,

and they went to Ms. Kirk’s house where [Petitioner] took Mr. Kirk’s rifle.

Around this time, [Petitioner] and Ms. Kirk discussed various plots to postpone or

prevent [Petitioner’s] wedding. One plan involved staging a robbery in which

[Petitioner] would kill Victim and Ms. Kirk would shoot and injure [Petitioner].

Ms. Kirk told her friend, Michelle Hinch, about the plan to kill Victim, and Ms.

Hinch persuaded Ms. Kirk to advise [Petitioner] that she would not participate in

Victim’s murder.

On the morning of April 15, 2010, [Petitioner] shot Victim three times in

the head and once in the side with Mr. Kirk’s .22 caliber rifle, killing her. He then

picked up Ms. Kirk from her mother’s house and drove to his medical

appointment in Columbia, Missouri. On their way home, [Petitioner] told Ms.

Kirk that he had killed Victim that morning. He also called Victim’s mother and

asked her to check on Victim because he was unable to get in touch with her.

Victim’s mother went to Victim’s house and found her in the basement lying face

down in a pool of blood.

[Petitioner] took Ms. Kirk to her mother’s house and asked her to burn a

trash bag containing clothing and “get rid of” a gun in a long white box by

burning the wooden parts and throwing the metal parts into a body of water.

Before following [Petitioner’s] instructions, Ms. Kirk called Ms. Hinch to tell her

what happened. Ms. Hinch and her husband informed the Hannibal Police

Department about Ms. Kirk’s statements to Ms. Hinch. On April 16, detectives

from the Hannibal Police Department interviewed Ms. Kirk and Ms. Kirk helped

the detectives to recover the disposed-of evidence.

(Id. at 3-4). After his convictions were affirmed on direct appeal, Petitioner filed a motion

for post-conviction relief under Missouri Supreme Court Rule 29.15. (Doc. 16-6 at 9-25).

Counsel was appointed and an amended petition was filed. (Id. at 26-43). The motion was

denied. (Id. at 48-74). On April 4, 2017, the Missouri Court of Appeals for the Eastern District

affirmed the judgment. (Doc. 16-10).

Petitioner then filed the instant Section 2254 petition raising eleven grounds for relief:

(1) Trial counsel rendered ineffective assistance by failing to make compelling

arguments attacking the State’s negligent charging decision and the lack of

investigative competence by the Hannibal Police Department. (Doc. 1 at 15).

(2) Trial counsel rendered ineffective assistance by failing to object to the testimony

of Detective McBride regarding Petitioner’s behavior and silence during his

interview. (Id. at 18).

(3) Trial counsel rendered ineffective assistance by failing to present a viable alibi

defense. (Id. at 19).

(4) Trial counsel rendered ineffective assistance by inviting testimony regarding

the recovery of semen from the body of the victim. (Id. at 20).

(5) Trial counsel rendered ineffective assistance by failing to object to Ms. Hinch’s

testimony as inadmissible hearsay and bolstering. (Id. at 22).

(6) Trial counsel rendered ineffective assistance by failing to call a qualified crime

scene expert to testify. (Id. at 23).

(7) Trial counsel rendered ineffective assistance by failing to call a qualified

computer expert to testify. (Id. at 25).

(8) Trial counsel’s cumulative errors constituted ineffective assistance of counsel.

(Id. at 27).

(9) Appellate counsel rendered ineffective assistance by failing to raise substantive

claims on appeal regarding the trial court’s admission of certain exhibits. (Id.).

(10) The Missouri Court of Appeals’ decision affirming the trial court’s decision

denying Petitioner’s request for a mistrial was an unreasonable application of

federal law and a misapplication of the facts. (Id. at 30).

(11) The Missouri Court of Appeals’ decision affirming the motion court’s finding

that trial counsel was not ineffective for failing to object to the testimony of

Detective McBride as to Petitioner’s silence was an unreasonable application of

federal law and a misapplication of the facts. (Id. at 32).

II. ANALYSIS

A district court “shall entertain an application for a writ of habeas corpus in behalf of a

person in custody pursuant to the judgment of a State court only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A

federal court may not grant a writ of habeas corpus as to any claim that was adjudicated on the

merits in state court proceedings unless such adjudication:

(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)(1)-(2).

“A state court’s decision is contrary to . . . clearly established law if it applies a rule that

contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that

are materially indistinguishable from a [Supreme Court] decision . . . and nevertheless arrives at a

[different] result.” Cagle v. Norris, 474 F.3d 1090, 1095 (8th Cir. 2007) (alteration in original)

(quoting Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)). A state court “unreasonably applies”

federal law when it “identifies the correct governing rule from [the Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state prisoner’s case,” or “unreasonably

extends a legal principle from [the Supreme Court’s] precedent to a new context where it should

not apply or unreasonably refuses to extend that principle to a new context where it should apply.”

Williams v. Taylor, 529 U.S. 362, 407 (2000). The habeas petition may be granted only if “there

is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the

Supreme] Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 131 (2011) (citing 28 U.S.C.

§ 2254(d)).

PROCEDURAL DEFAULT

Respondent argues that Petitioner failed to exhaust his first eight grounds for relief. “[A]

state prisoner must exhaust available state remedies before presenting his claim to a federal habeas

court.” Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (citing 28 U.S.C. § 2254(b)(1)(A)).

Exhaustion requires “one complete round of the State’s established appellate review process.”

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “A failure to exhaust remedies properly in

accordance with state procedure results in procedural default of the prisoner’s claims.” Welch v.

Lund, 616 F.3d 756, 758 (8th Cir. 2010) (citing O’Sullivan, 526 U.S. at 848)).

Petitioner only pursued one claim on appeal from his denial of post-conviction relief and

would therefore appear to have procedurally default on the other grounds brought here. (Doc. 16-

10). For nearly each of his first nine grounds for relief,1 however, Petitioner repeats the following:

“This issue was not raised in state court. This failure was due to ineffective assistance of

[Petitioner’s] postconviction counsel. Should respondent assert that this ground is procedurally

barred, [Petitioner] will argue that under Martinez v. Ryan, 132 S.Ct. 1309, 1317 (2012), he is

entitled to develop and present this ground for relief in this Court.” (Doc. 1). Respondent, in turn,

consistently argues that Petitioner “makes a conclusory allegation” but “fails to allege facts . . .

that show either a breach of duty or resulting prejudice from the putative ineffective assistance of

post-conviction trial counsel.” (Doc. 16).

A habeas petitioner under § 2254 may avoid procedural default only by showing that there

was cause for the default and resulting prejudice, or that a miscarriage of justice will result from

enforcing the procedural default in the petitioner’s case. See Wainwright v. Sykes, 433 U.S. 72, 87,

90–91 (1977). In order to establish cause, the petitioner must show that “some objective factor

external to the defense” prevented his compliance with a state procedural rule. Murray v. Carrier,

477 U.S. 478, 488 (1986). In Coleman v. Thompson, the Supreme Court established the general

rule that counsel’s errors in post-conviction proceedings do not qualify as a cause for default. 501

U.S. 722, 753-75 (1991). In Martinez, the Supreme Court recognized a narrow exception to this

1 For unclear reasons, this language is not included in Ground 8. This Court will assume that Petitioner intended to

apply Martinez here as well.

rule: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an

initial-review collateral proceeding, a procedural default will not bar a federal habeas court from

hearing a substantial claim of ineffective assistance at trial if, in the initial-review proceeding,

there was no counsel or that counsel was ineffective.” Martinez, 132 S.Ct. at 1320. The Supreme

Court also noted that a petitioner must demonstrate that the underlying ineffective assistance of

trial counsel claim “is a substantial one, which is to say that the prisoner must demonstrate that the

claim has some merit.” Id. at 1318; see also Isaac v. Wallace, 2016 WL 855858, at *6 (E.D. Mo.

Feb. 1, 2016).

This narrow exception has been subsequently clarified. The Supreme Court held in Davila

v. Davis that it does not extend to claims of ineffective assistance of appellate counsel. 137 S.Ct.

2058 (2017); see 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during

Federal or State collateral post-conviction proceedings shall not be a ground for relief in a

proceeding arising under section 2254.”). The Eighth Circuit has also determined that Martinez

“offers no support . . . for the contention that the failure to preserve claims on appeal from a

postconviction proceeding can constitute cause.” Arnold v. Dormire, 675 F.3d 1082, 1087 (8th

Cir. 2012); see also Turner, Jr. v. Cassady, 2015 WL 11216678 (E.D. Mo. Nov. 10, 2015).

This Court finds that Petitioner has procedurally defaulted on Grounds 1 and 3-8.2 Martinez

does recognize an exception to the general rule in Coleman, but only if Petitioner can establish

that counsel was ineffective in the post-review proceeding. Instead, Petitioner makes the

threadbare assertion that he “will argue that under [Martinez] he is entitled to develop and present

his ground for relief in this Court.” Petitioner was provided counsel for his post-conviction appeal.

Per the standard established in Strickland v. Washington, Petitioner must make a showing that (1)

2 The one issue Petitioner has exhausted is substantially similar to Ground 2 brought here, and therefore Petitioner has

not procedurally defaulted on this ground.

such counsel’s performance fell below an objective standard of reasonableness and (2) petitioner

was sufficiently prejudiced such that “the result of the proceeding would have been different.” 466

U.S. 668, 694 (1984). Petitioner has not provided any facts suggesting post-conviction was counsel

was ineffective and accordingly has procedurally defaulted on Grounds 1 and 3-8.

In the alternative, the Court notes that Petitioner’s Rule 29.15 motion did include multiple

claims substantially similar to those identified in the instant petition. In his Rule 29.15 Amended

Motion, which was prepared with assistance of counsel, Petitioner made various claims as to

ineffective assistance of trial counsel, including certain “pro se claims [] included at the request of

the [Petitioner].” (Doc. 16-6 at 31). These claims included multiple grounds for relief identified in

the current petition:

Ground 1: Petitioner argued that trial counsel failed to object on various of his

component claims, specifically concerning the investigation of the crime scene,

ballistics analysis, and failure to obtain comprehensive DNA testing. (Id. at 29,

36).

Ground 3: Petitioner argued that trial counsel failed to impeach the testimony

of Peggy Porter, the coroner for Marion County. (Id. at 27-28).

Ground 4: Petitioner argued that trial counsel failed to object to the

prosecution’s discussion in his closing statement of semen found at the crime

scene. (Id. at 35-36).

Ground 5: Petitioner argued that trial counsel failed to object to Ms. Hinch’s

testimony as hearsay and bolstering. (Id. at 38).

The Eighth Circuit has addressed this precise issue and found that claims brought in a Rule

29.15 motion but not preserved on appeal are procedurally defaulted. Arnold, 675 F.3d 1082

(2012). As to these claims, [Petitioner] “has already had his day in court; deprivation of a second

day does not constitute cause.” Id. at 1087. Therefore, Plaintiff has twice procedurally defaulted

on Grounds 1 and 3-5.

Despite Plaintiff’s procedural default on Grounds 1 and 3-8, the Court will proceed to

substantively address each of Plaintiff’s ineffective assistance of trial counsel claims and finds that

Plaintiff has not met the Strickland standard.

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner’s first eight grounds for relief all claim ineffective assistance of trial counsel.

Federal habeas review of an ineffective assistance of counsel claim is “doubly deferential.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). First, a petitioner must overcome the high bar

of Strickland v. Washington by showing that (1) counsel’s performance fell below an objective

standard of reasonableness and (2) petitioner was sufficiently prejudiced such that “the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694 (1984). “It is not sufficient

for a defendant to show that the error had some ‘conceivable effect’ on the result of the proceeding

because not every error that influences a proceeding undermines the reliability of the outcome of

the proceeding.” Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004) (quoting Strickland, 466

U.S. at 693).

Second, under 28 U.S.C. § 2254, Petitioner must demonstrate that the state court’s

adjudication of his ineffective assistance claim was “unreasonable.” Harrington v. Richter, 562

U.S. 86, 101 (2011) (“The pivotal question is whether the state court’s application of the Strickland

standard was unreasonable.”). Both the Strickland standard and the standard set forth in § 2254

are highly deferential. Ultimately, “[t]he question is whether there is any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Id. at 105. “[I]t is not enough to convince a

federal habeas court that, in its independent judgment, the state-court decision applied Strickland

incorrectly. Rather, [the petitioner] must show that the [state court] applied Strickland to the facts

of his case in an objectively unreasonable manner.” Underdahl v. Carlson, 381 F.3d 740, 742 (8th

Cir. 2004) (quoting Bell v. Cone, 535 U.S. 685, 698-99 (2002)).3

Ground 1: Ineffective Assistance – State’s Charging Decision and Investigation

In his first ground for relief, Petitioner broadly claims that trial counsel “failed to offer

evidence and make compelling arguments attacking the State’s negligent charging decision and

the lack of investigative competence by the Hannibal Missouri police department.” (Doc. 1 at 15).

Petitioner cites a variety of issues regarding bullets recovered from the crime scene, DNA testing,

the coroner’s statements to a reporter, and the state’s failure to investigate Ms. Kirk. (Id. at 16).

Such cumulative arguments are not cognizable under Strickland. Petitioner cites to Kyles

v. Whitely, 514 U.S. 419 (1985), which concerns a prosecutor’s duty to disclose evidence under

Brady v. Maryland, 373 U.S. 83 (1963), and is inapplicable here. The Eighth Circuit has made

clear that “cumulative error does not call for habeas relief, as each habeas claim must stand or fall

on its own.” Girtman v. Lockhart, 942 F.2d 468, 475 (8th Cir. 1991) (quoting Scott v. Jones, 915

F.2d 1188, 1191 (8th Cir. 1990)).

The Court further finds that the individual claim, that counsel should have objected to the

state charging decision as negligent, does not pass the Strickland standard. Ample evidence

supported the jury’s ultimate determination of guilt and established the basis for the state’s

charging decision. Any objection by trial counsel would have been entirely meritless. “Failure to

raise a meritless objection cannot support a claim of ineffective assistance.” Sittner v. Bowersox,

No. 19-1742, 2020 WL 4590128, at *4 (8th Cir. Aug. 11, 2020) (citing Gray v. Bowersox, 281

F.3d 749, 756 n.3 (8th Cir. 2002)). As to the other component claims, the Court agrees with the

3 This second element of the doubly deferential standard will only apply to Ground 2 since Petitioner has not exhausted

his other grounds for relief.

findings of the motion court that trial counsel’s decisions were strategically sound. Trial counsel

appropriately determined that further DNA testing may have incriminated rather than exonerated

Petitioner, and Petitioner has not provided any evidence that ballistics reports would have been

exculpatory. (Doc. 16-6 at 71-73).

Grounds 2 and 11: Ineffective Assistance – Failure to Object to Detective McBride’s Testimony

In his second ground for relief, Petitioner claims that trial counsel rendered ineffective

assistance by failing to object to the testimony of Detective McBride regarding Petitioner’s

behavior and silence during an interview. In his eleventh ground for relief, Petitioner argues that

the Missouri Court of Appeals erred by affirming the decision of the motion court on this issue.

Petitioner’s argument concerns the following exchange at trial:

Question: I’ll start over. So tell me again what you asked Duane Pettey.

Answer: I asked him if he would have done anything extreme for love of Becky

[Kirk].

Question: And what did he say?

Answer: Yes.

Question: Did you then tell him something?

Answer: I asked him if he did.

Question: And what did he say?

Answer: He put his head down.

Question: Okay. Did you – but he didn’t answer that question?

Answer: He did not verbally answer that question.

(Doc. 16-1 at 258). Petitioner claims that trial counsel was ineffective for failing to object

to this exchange.4

The Supreme Court has clearly held that the accused must unambiguously invoke his or

her right to remain silent. Berghuis v. Thompkins, 560 U.S. 370 (2010). Petitioner lowering his

head was not an unambiguous invocation of this right. Accordingly, trial counsel’s failure to object

was not objectively unreasonable since any objection would have been meritless. Further,

Petitioner had already answered “yes” when asked if he would do something extreme for the love

of Ms. Kirk. Any additional prejudice created by Detective McBride’s testimony that Petitioner

lowered his head would have been minimal, and certainly not enough to change the outcome of

the proceeding.

This is the only ground that Petitioner has fully exhausted, and the Missouri Court of

Appeals adequately applied Supreme Court precedent. The court properly cited Strickland and

Berghuis, ultimately determining that Petitioner “putting his head down after agreeing to speak

with Detective [McBride] was a non-verbal response that did not unambiguously and

unequivocally assert his right to remain silent.” (Doc. 16-10 at 4). The court found that even if

counsel had made a meritorious objection, the impact would have been minimal. (Id. at 5).

Petitioner has not demonstrated that this was an unreasonable application of Supreme Court

precedent.

Ground 3: Ineffective Assistance – Failure to Present a Viable Alibi Defense

In his third ground for relief, Petitioner claims that trial counsel rendered ineffective

assistance by failing to present a viable alibi defense. Petitioner discusses extrajudicial statements

by the coroner indicating the coroner’s apparent belief that the victim died around 11:47 AM.

4 Trial counsel did object in advance of this exchange, but only to ensure that Detective McBride did not discuss

Petitioner’s request for an attorney. (Doc. 16-1 at 255-57).

(Doc. 1 at 19). The coroner clearly testified at trial, however, that she did not know when the victim

died. (Doc. 16-1 at 221). As the motion court noted, moreover, it is “a matter well know[n] that

the elected county coroner does not necessarily possess the education or knowledge necessary to

determine time of death.” (Doc. 16-6 at 70).

Petitioner argues that he could not have returned from his doctor’s appointment in

Columbia, Missouri before 11:47 AM. Ms. Kirk joined Petitioner for the medical appointment in

Columbia. (Doc. 1 at 6). Petitioner admits that his primary defense strategy was to argue that Ms.

Kirk committed the murder, and this is the basis for many of Petitioner’s claims of ineffective

assistance of trial counsel. (Id. at 21). An alibi defense based on the doctor’s appointment would

also have exonerated Ms. Kirk. Therefore, trial counsel could not present the alibi defense

stemming from the doctor’s appointment without jeopardizing the entire theory of the defense.

“[S]trategic choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland, 466 U.S. at 690. It was not objectively

unreasonable for trial counsel to decline to pursue a strategy which would have contradicted the

defense’s primary theory of the case.

Alternatively, Petitioner fails to demonstrate that trial counsel’s failure to impeach the

coroner was sufficiently prejudicial to “undermine[] the reliability of the outcome of the

proceeding.” Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004) (quoting Strickland, 466 U.S. at

693). The coroner clearly testified at trial that she could not provide an exact time of death, and

Petitioner offers no other evidence supporting the 11:47 AM time of death estimate. Ample

evidence supported the conviction, and the jury would have been unlikely to reach a different

verdict if the coroner’s testimony had been impeached.

Ground 4: Ineffective Assistance – Introduction of Evidence of Semen at Crime Scene

In his fourth ground for relief, Petitioner argues that trial counsel rendered ineffective

assistance by introducing prejudicial evidence of semen found at the crime scene and failing to

object when such evidence was discussed in the prosecution’s closing arguments. Petitioner’s

counsel had the following exchange with Detective McBride at trial:

Question: And during that interaction [with the medical examiner] you came to

learn that semen was found in the vaginal area of [the victim]?

Answer: Yes.

Question: Now, you never collected any semen or bodily fluid from the autopsy,

did you?

Answer: Best of my knowledge I don’t believe so.

(Doc. 16-1 at 270). Trial counsel was clearly attempting to establish that the investigating police

failed to test key evidence. In his closing argument, trial counsel highlighted this apparent

investigative failure: “[Detective McBride] said there was semen in the vaginal area of the body.

What? There was? Really. That’s interesting . . . . Where’s that at?” (Id. at 694). In this Rule 29.15

motion, Petitioner argued that insufficient evidence supported the verdict precisely because the

investigators failed to test the semen against Petitioner’s DNA. (Doc. 16-6 at 29). During a post-

conviction hearing, Petitioner testified that evidence of the semen “most definitely” could be

beneficial to his defense because he “[knew] it wasn’t [his].” (Doc. 16-7 at 24).

The Court reiterates that strategic decisions at trial, even if they are unsuccessful in

hindsight, are not objectively unreasonable under Strickland. Trial counsel made a reasonable

determination, in apparent agreement with Petitioner, that the police’s failure to test the semen was

more evidence of Petitioner’s innocence than the semen’s existence was evidence of Petitioner’s

guilt. A trial strategy decision, if reasonable at the time, cannot support an ineffective assistance

claim even if better choices could have been made in hindsight. See Francis v. Miller, 557 F.3d

894 (8th Cir. 2009). Accordingly, trial counsel did not render ineffective assistance by inviting

Detective McBride’s testimony or failing to object to the prosecution’s closing arguments.

Ground 5: Ineffective Assistance – Failure to Object to Michelle Hinch’s Testimony

In his fifth ground for relief, Petitioner argues that trial counsel rendered ineffective

assistance by failing to object to the testimony of Michelle Hinch as hearsay and bolstering. Ms.

Hinch testified at trial that Ms. Kirk had informed her of a plot to murder the victim. (Doc. 16-1 at

486). During a post-conviction hearing, Petitioner’s trial counsel explained the strategic basis for

his decision not to object to Ms. Hinch’s testimony: “I believed that [Ms. Kirk’s] testimony was

not terribly credible and so therefore the strategy was that we felt that she could hang herself with

her own statements.” (Doc. 16-7 at 58). Per trial counsel, Ms. Kirk provided conflicting stories

between her statements to Ms. Hinch, written statements to police, and deposition. (Id. at 59-60).

Therefore, trial counsel reasonably determined that permitting Ms. Hinch’s testimony would reveal

such inconsistencies and impeach the credibility of a key state witness and prime suspect. Trial

counsel also argued that these statements put Ms. Kirk “in the driver’s seat as the master

conspirator,” which fit the defense theory of Ms. Kirk as the murderer. (Id. at 60).

It is clear from trial counsel’s testimony that the decision not to object was a matter of

sound trial strategy and not objectively unreasonable under Strickland. Alternatively, the Court

finds that any alleged error by trial counsel was not prejudicial under Strickland given the

substantial evidence supporting the jury’s verdict. Petitioner claims that trial counsel failed to

make an objection on grounds of bolstering. While it is doubtful that the trial court would have

granted such an objection if made, a bolstering objection may have been appropriate precisely

because Ms. Hinch’s testimony only supplemented existing evidence regarding the murderous plan

crafted by Petitioner and Ms. Kirk. Failure to make such an objection did not change the outcome

of the trial given the evidence already in front of the jury.

Grounds 6-7: Ineffective Assistance – Failure to Call Crime Scene and Computer Experts

In his sixth and seventh grounds for relief, Petitioner argues that trial counsel rendered

ineffective assistance by failing to call crime scene and computer experts. As to the crime scene

expert, Petitioner argues that the expert could have testified that Petitioner, who is 6’4”, could not

have shot the victim, who is 5’6”, at an upward trajectory. (Doc. 28 at 8). Petitioner further argues

that a computer expert could have recovered metadata regarding threatening letters to the victim

typed on Ms. Kirk’s computer. This Court acknowledges that trial counsel had “a duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations

unnecessary.” Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir. 1990) (quoting Strickland,

466 U.S. at 691).

“To prevail on a claim of ineffective assistance of counsel for failure to call an expert

witness, a movant must allege and prove the expert would have provided a viable defense.”

Carmical v. Norman, 2014 WL 4055440, at *11 (E.D. Mo. Aug. 15, 2014). On his sixth ground

for relief, Petitioner has not established that trial counsel violated any duty by failing to call a

crime scene expert to testify. Petitioner offers “nothing other than this own speculation” that a

crime scene expert would have testified that he could not have committed the murder. Isaac v.

Wallace, 2016 WL 855858, at *8 (E.D. Mo. Feb. 1, 2016). The fact that Petitioner was taller than

the victim but the bullet was shot at an upward trajectory is not by itself sufficient to establish a

duty on behalf of trial counsel to call a crime scene expert.

Regarding the computer expert, Petitioner again does not present sufficient facts to

demonstrate that a computer expert would have provided testimony contradicting the state’s

evidence. Petitioner’s trial counsel had an opportunity to cross-examine the prosecution’s

computer expert regarding the issues Petitioner discusses in the current petition but declined to do

so. (Doc. 16-1 at 577). This Court also finds that trial counsel’s failure to call a computer expert

was not prejudicial. The jury was already aware of Ms. Kirk’s general involvement in Petitioner’s

plan to murder the victim, and Ms. Kirk admitted to typing the letters (at Petitioner’s direction).

(Id. at 379-80). There is not a reasonable probability that the outcome of the trial would have been

different if trial counsel had called a computer expert. Strickland, 466 U.S. at 694.

Ground 8: Ineffective Assistance – Cumulative Errors of Counsel

In his eighth ground for relief, Petitioner argues that trial counsel’s cumulative errors

constituted ineffective assistance. As stated in response to Ground 1, such cumulative arguments

are not cognizable under Strickland in the Eighth Circuit. Petitioner cites to Kyles v. Whitely, 514

U.S. 419 (1985), which concerns a prosecutor’s duty to disclose evidence under Brady v.

Maryland, 373 U.S. 83 (1963), and is inapplicable here. The Eighth Circuit has made clear that

“cumulative error does not call for habeas relief, as each habeas claim must stand or fall on its

own.” Girtman v. Lockhart, 942 F.2d 468, 475 (8th Cir. 1991) (quoting Scott v. Jones, 915 F.2d

1188, 1191 (8th Cir. 1990)); see also Middleton v. Roper, 455 F.3d 838 (8th Cir. 2006).

PETITIONER’S REMAINING GROUNDS FOR RELIEF

Ground 9: Ineffective Assistance of Appellate Counsel

In his ninth ground for relief, Petitioner argues that appellate counsel rendered ineffective

assistance by failing to raise substantive claims on appeal regarding the trial court’s admission of

prosecution’s Exhibits 3, 13, 14, and 15. Errors in post-conviction proceedings do not justify

granting a writ of habeas corpus. See Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) (“Any

error in Bell-Bey’s state post-conviction proceeding is not a constitutional error that could justify

granting an application for a writ of habeas corpus.”). Petitioner again claims he will argue that he

has a right to proceed under Martinez v. Ryan, 132 S.Ct 1309 (2012). The Supreme Court, however,

has explicitly held that the Martinez exception does not extend to claims of ineffective assistance

of appellate counsel. Davila v. Davis, 137 S.Ct. 2058 (2017); see 28 U.S.C. § 2254(i) (“The

ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction

proceedings shall not be a ground for relief in a proceeding arising under section 2254.”). Martinez

is a narrow exception only applicable to claims of ineffective assistance of trial counsel.

Accordingly, Petitioner’s ninth ground for relief is non-cognizable under applicable precedent.

Ground 10: Trial Court Error – Verdict Director

In his tenth ground for relief, Petitioner claims that the trial court erred by submitting a jury

instruction which included information regarding sentencing even though Petitioner had waived

his right to a jury sentencing. At trial, the verdict director read to the jury included the following

statement: “If you do find the defendant guilty of murder in the first degree you are to assess and

declare the punishment at imprisonment for life without eligibility for probation or parole.” (Doc.

16-1 at 675). The judge promptly noted that language “shouldn’t be in there” and informed the

jury that the statement should be “stricken out of there.” (Id.). Petitioner brought this claim on

direct appeal, and the Missouri Court of Appeals found that the instruction “created no risk of a

compromise verdict because we presume the jury followed the trial court’s instruction to the jury

to disregard the punishment paragraph.” (Doc. 16-5 at 10). The court also found that Petitioner

faced no risk of a compromise verdict because there is only one available sentence for first degree

murder under Missouri law.

Petitioner argues that the “trial court’s failure to grant [Petitioner’s] request for mistrial

violated due process because it deprived him of a fundamentally unfair trial.” (Doc. 1 at 32).

Specifically, Petitioner argues, he had “waived jury sentencing to pursue an ‘all or nothing’

verdict” and the trial court’s error “obviated that strategy.” (Id. at 31). Petitioner cites no applicable

federal law or Supreme Court precedent holding that such an error, which was immediately

corrected by the trial judge, violates due process. “Mistrial is a drastic remedy reserved for the

most extraordinary circumstances, and the decision whether to grant a mistrial is left to the sound

discretion of the trial court.” Horitz v. Missouri, 2009 WL 322237, at *4 (E.D. Mo. Feb. 9, 2009)

(quoting State v. Brown, 998S.W.2d 531, 549 (Mo. banc 1999)). The trial court was well within

its discretion, and Petitioner was not denied due process, by refusing to declare a mistrial. The

Missouri Court of Appeals correctly noted that the primary concern when such an instruction is

given in error, that the jury will impose a compromise verdict, was not applicable here.

III. CONCLUSION

To succeed under 28 U.S.C. § 2254, Petitioner was first required to exhaust his procedural

remedies in state court. Petitioner failed to exhaust various grounds for relief and did not provide

this Court with sufficient evidence to support a determination that the narrow exception established

by Martinez should apply. Despite this procedural default, the Court substantively addressed each

of Petitioner’s grounds for relief and found that Petitioner has not demonstrated a violation of his

constitutional rights. On the sole issue that Petitioner did filly exhaust (Grounds 2 and 11), the

Missouri Court of Appeals reasonably applied Supreme Court precedent.

Accordingly,

IT IS HEREBY ORDERED that Petitioner Calvin D. Pettey’s Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED.

FURTHER the Court finds that, because Petitioner cannot make a substantial showing of

the denial of a constitutional right, the Court will not issue a certificate of appealability. See Cox

v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998).

A judgment dismissing this case is filed herewith.

Dated this 29th day of September, 2020.

{ pee A. ROSS

UNITED STATES DISTRICT JUDGE

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